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IN THE HIGH COURT OF KERALA AT ERNAKULAM
A.HARIPRASAD, ANU SIVARAMAN, M.R.ANITHA, JJ.
K.Sadasivan, S/o.Kumara Pillai, - Appellant
Versus
Surendradas, S/o. Bhanu Panicker – Respondent
FAO.No.47 OF 2019
Decided on : 12-10-2020
Code of Civil Procedure, 1908- Order XXXVIII Rules 5 and 6, Section 148A(1), Order XXVI Rule 9 - Attachment before judgment-Order to issue notice is equal to issuance of a direction under Rule 5(1) of Order XXXVIII- Order XXXVIII Rule 6(2) of the Code cannot apply to a case where there was no conditional attachment of the whole or any portion of property or in other words, Order XXXVIII Rule 6(2) is not intended to cover cases in which defendant successfully showed cause against attachment before judgment, in which no conditional attachment order under Order XXXVIII Rule 5(3) of the Code has been granted.
Statement of facts:
Interpretation of Order XXXVIII Rules 5 and 6 of the Code of Civil Procedure, 1908 by two Division Benches of this Court in Pareed Master v. Antony (1987 (2) KLT 649) and Saseendran v. Sadanandan (2003 (3) KLT 680) is that Order XXXVIII Rule 6(2) of the Code cannot apply to a case where there was no conditional attachment of the whole or portion of the property.
Finding of the court:
Appeal against the impugned order is not maintainable under Order XLIII Rule 1(q) of the Code since there was no order of conditional attachment passed by the court below to make it an order under Order XXXVIII Rule 6(2) of the Code-The records shall be returned to the appellant and he may work out his remedy in a legally proper manner.
Result: Appeal against the impugned order is not maintainable
Based on the provided legal document, the key points regarding the legal issues and interpretation of the relevant provisions are as follows:
The order of deposit of Rs. 70,00,000/- as directed by the court disqualifies the appellant from claiming an order of attachment. Consequently, the absence of a specific direction under Order XXXVIII Rule 5(1) did not prejudice the appellant in this case (!) .
Orders under Order XXXVIII Rules 2, 3, and 6 are appealable, but orders under Rule 5 are not directly appealable unless they are under Rule 6 or involve a conditional attachment order passed under Rule 5(3) (!) (!) .
An order passed under Rule 5(1) that results in a notice to the defendant, without a conditional attachment order, does not constitute an appealable order under the relevant appellate provisions. The legal interpretation is that such an order is not within the scope of Rule 6(2) unless a conditional attachment order has been issued or withdrawn (!) (!) .
The legal interpretation emphasizes that the power to issue an order of attachment before judgment is a substantive jurisdictional step that requires strict adherence to procedural conditions, including the issuance of a notice and, if applicable, a conditional attachment order under Rule 5(3). Failure to comply with these procedural requirements renders the order void or non-appealable (!) (!) .
The statutory provisions and their historical evolution show that the law intends a careful and circumspect approach to attachment orders, with a clear distinction between notices, directions, and conditional attachments. The language of the rules should be interpreted in their plain, literal sense, respecting the legislative intent and the structure of the law (!) (!) (!) .
The power of the court to pass an order of attachment or to withdraw such an order is contingent upon the existence of a valid attachment order, which must be preceded by proper procedural steps. The inclusion of the phrase "or make such other order as it thinks fit" in Rule 6(2) broadens the court's discretion but only within the context of an existing attachment order, not in the absence thereof (!) (!) .
The right of appeal is a creature of statute, and only those orders explicitly made appealable by law can be challenged on appeal. Orders not falling within the specific categories enumerated in the law are not subject to appeal, reinforcing the importance of legislative clarity in conferring appellate jurisdiction (!) (!) .
The interpretation of the words "and" and "or" in statutory provisions must adhere to their plain meaning unless the legislative intent clearly indicates otherwise. The use of "and" in Rule 6(2) should be understood as conjunctive, requiring both cause/furnishing security and the existence of an attachment for the court's power to act (!) (!) .
External aids such as the usage and practice at the time of enactment support the interpretation that orders under Rule 6(2) are only applicable where an attachment order has been made or withdrawn, not in cases where the application was dismissed without a conditional attachment order (!) (!) .
The consistent judicial interpretation over time, the doctrine of stare decisis, and the textual clarity of the law support the view that orders under Rule 5 that do not involve a conditional attachment are not appealable under Rule 6(2). The law's structure and language aim to prevent unwarranted appeals and ensure procedural correctness (!) (!) .
In summary, the legal framework and judicial interpretation affirm that only orders involving a conditional attachment or withdrawal thereof are appealable under the relevant provisions. Orders merely directing notices or requiring the defendant to show cause, without a formal attachment order, do not fall within the scope of appealable orders under the law.
JUDGMENT :
Hariprasad, J.
Interpretation of Order XXXVIII Rules 5 and 6 of the Code of Civil Procedure, 1908 (in short, “the Code”) by two Division Benches of this Court in Pareed Master v. Antony (1987 (2) KLT 649) and Saseendran v. Sadanandan (2003 (3) KLT 680) is that Order XXXVIII Rule 6(2) of the Code cannot apply to a case where there was no conditional attachment of the whole or portion of the property. In other words, sub-rule (2) of Order XXXVIII Rule 6 of the Code is not intended to cover cases, where the defendant successfully showed cause against attachment before judgment, in which no conditional attachment order under Order XXXVIII Rule 5(3) of the Code has been granted. It was further observed that Order XXXVIII Rule 6(2) of the Code contemplates cases where conditional attachment before judgment was once ordered and later withdrawn when the defendant had shown sufficient cause. On a conjoint reading of the above provisions with Order XLIII Rule 1(q) of the Code, the above view was adopted. Another Division Bench, doubting correctness of the aforementioned view, referred the case for consideration by an appropriate Bench. Hence the matter is placed before us for determination.
2. We heard Sri. Arun V.G., learned counsel for the appellant and Sri. M.R.Rajesh, learned counsel for the respondent.
3. Before going into the rival contentions, we shall extract the relevant provisions for completion of the records. Order XXXVIII deals with arrest and attachment before judgment. Under the sub-heading, “Attachment before judgment”, Rules 5 to 13 are placed. For our purpose, we shall extract Order XXXVIII Rules 5 and 6 of the Code as they now exist.
(a) is about to dispose of the whole or any part of the property, or
(b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the court, the Court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the court, when required, the said opportunity or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security.
(2) The plaintiff shall, unless the Court otherwise directs, specify the property required to be attached and the estimated value thereof.
(3) The Court may also in the order direct the conditional attachment of the whole or any portion of the property so specified. If an order of attachment is made without complying with the provisions of sub-r. (1) of this rule, such attachment shall be void.
(4) If an order of attachment is made without complying with the provisions of sub-rule (1) of this rule, such attachment shall be void.
6. Attachment where cause not shown or security not furnished. (1) Where the defendant fails to show cause why he should not furnish security, or fails to furnish the security required, within the time fixed by the Court, the Court may order that the property specified, or such portion thereof as appears sufficient to satisfy any decree which may be passed in the suit, be attached.
(2) Where the defendant shows such cause or furnishes the required security and the property specified or any portion of it has been attached, the Court shall order the attachment to be withdrawn, or make such other order as it thinks fit.”
4. We may now scrutinize the decisions involved in the order of reference. Facts in Pareed Master's case are thus: Appellant filed a suit against the 1st defendant/respondent for realisation of a certain sum of money with future interest. Actually, there was a written contract between the parties for purcha
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