Kerala High Court
K.Sadasivan vs Surendradas on 12 October, 2020
Bench: A.Hariprasad, Anu Sivaraman
"C.R."
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
and
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
MONDAY, THE 12TH DAY OF OCTOBER 2020 / 20TH ASWINA, 1942
FAO.No.47 OF 2019
AGAINST THE ORDER DATED 18.02.2019 IN IA NO.1017/2018 IN OS
NO.58/2018 OF SUB COURT,NEYYATTINKARA
APPELLANT/PLAINTIFF:
K.SADASIVAN, S/O.KUMARA PILLAI,
AGED 66 YEARS, K.S. BHAVAN, KUNNATHUKAL VILLAGE,
NEYYATTINKARA TALUK, THIRUVANANTHAPURAM - 695 121
BY ADVS.
SRI.V.G.ARUN (K/795/2004)
SMT.V.JAYA RAGI
SMT.INDULEKHA JOSEPH
SRI.NEERAJ NARAYAN
RESPONDENT/DEFENDANT:
SURENDRADAS, S/O. BHANU PANICKER, 'SREE VISAKH',
NEAR MILMA THIRUVALLAM, THIRUVALLAM VILLAGE,
THIRUVANANTHAPURAM - 695 027
BY ADVS.
SRI.M.R.RAJESH
SMT.E.S.SANDHYA
THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON
18-08-2020, THE COURT ON 12-10-2020 DELIVERED THE FOLLOWING:
FAO No.47 of 2019 2
"C.R."
A.HARIPRASAD,
ANU SIVARAMAN & M.R.ANITHA, JJ.
--------------------------------------
F.A.O. No.47 of 2019
--------------------------------------
Dated this the 12th day of October, 2020
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Rule 6(2) of the Code contemplates cases where conditional attachment before judgment was once ordered and later withdrawn when the defendant had shown sufficient cause.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 FAO No.47 of 2019 3 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.
"5. Where defendant may be called upon to furnish security for production of property.- (1) Where, at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him,-
(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 FAO No.47 of 2019 4 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 purchasing a printing press. As the 1st defendant failed to fulfil his obligations under the contract, a lawyer notice was issued at the instance of the plaintiff demanding specific performance of the contract. 1 st defendant informed the appellant/plaintiff that he had liability outstanding towards a bank and therefore the parties entered into another contract. In the subsequent FAO No.47 of 2019 5 contract, the 1st defendant agreed to pay Rs.30,000/- to the plaintiff as damages. In discharge of that liability, 2 nd defendant, the wife of the 1st defendant, issued a cheque for Rs.30,000/-. When the appellant presented the cheque for collection, it was bounced for want of funds. Hence the suit for recovery of money was laid. Along with the suit, an application under Order XXXVIII Rule 5 of the Code was also filed seeking attachment of the scheduled property before judgment. 1st defendant resisted the application for the reason that the averments in the accompanying affidavit were vague and inaccurate. Court below dismissed the application finding that there was no specific pleadings regarding the intended sale by the 1st defendant.
5. When the order was challenged in appeal, the respondent/1 st defendant raised a preliminary objection regarding maintainability of the appeal. It was contended that the impugned order was passed under Order XXXVIII Rule 5 of the Code and therefore, the same was not appealable under Order XLIII Rule 1(q). Under the aforementioned provision, orders under Order XXXVIII Rules 2, 3 and 6 of the Code alone are made appealable. It was also contended that when the appellant/plaintiff had filed the application for attachment, a notice was ordered and then the respondent entered appearance and filed an objection. No conditional order of attachment was granted by the court. In that context, it was observed "The impugned order shows that the learned Subordinate Judge has passed the order under O.38 R.5.
CPC. O.38 R.6 would apply only in a case where the court passes a conditional or interim attachment and issues FAO No.47 of 2019 6 notice to the defendant to show cause why he should not furnish security. If an order is passed under clause (1)(b) of O.38 R.5, directing the defendant to furnish security within a time fixed by the court, or to appear and show cause why he should not furnish security and thereafter an order was passed by the Court, then only the same could be said to be an order passed under O.38 R.6. From a reading of sub-rule (2) of O.38 R.6 it is clear that it is not applicable in a case where there was no conditional attachment of the whole or portion of the property, or in other words, sub-rule (2) of O.38 R.6 is not intended to cover cases in which the defendant successfully shows cause against attachment before judgment in which no conditional attachment under R.5(3) had been made. O.38 R.6 contemplates cases where conditional attachment before judgment was ordered and later withdrawn when the defendant showed cause. Therefore, the impugned order squarely comes within order passed under O.38 R.5, which is not made appealable under O.43 R.1(q)."
6. Facts in Saseendran's case are the following: In a suit for realisation of money, the plaintiff filed an application under Order XXXVIII Rule 5 of the Code seeking an order of attachment of the scheduled properties before judgment. Another application was filed under Section 151 of the Code to receive additional affidavit in support of the attachment application. Since the trial court found no merit in the contentions raised in both the applications, they were dismissed. Before dismissing the applications, opportunity was given to the defendant to file counter affidavits and the defendant's contentions were also considered.
FAO No.47 of 2019 7
7. When a First Appeal against Order (FAO) is filed challenging this order, Registry raised an objection that the order under challenge was one under Order XXXVIII Rule 5 of the Code and no appeal therefore was maintainable. Legality of that objection came up for consideration before the bench. After referring to the statutory provisions and two decisions cited, viz., Varghese v. Varghese (2001(1) KLT 489) and Pareed Master v. Antony (1987 (2) KLT 649), the Bench agreed with the reasoning in Pareed Master and found that the impugned order was passed under Order XXXVIII Rule 5 and therefore no appeal was maintainable. Reasoning adopted in the decisions are seriously disputed.
8. Sri. Arun, learned counsel for the appellant, contended that the findings in Pareed Master and Saseendran to the effect that the orders impugned were passed under Rule 5 of Order XXXVIII of the Code are legally unsound. According to him, stipulations under Order XXXVIII Rule 5 of the Code prescribe the procedure for passing an order under Rule 6. Rule 5 of Order XXXVIII does not empower a court to issue any positive order, except in an appropriate case to pass a conditional order of attachment by exercising judicial discretion. It is therefore argued that the view taken in the above decisions is fundamentally flawed. Further, it is contended that even without an order of conditional attachment, allowable under Sub-rule (3) of Rule 5 of Order XXXVIII of the Code, the court has power to pass an order of attachment before judgment after hearing both parties. That is specifically dealt with in Order XXXVIII Rule 6. It is pointed out that passing an order of conditional FAO No.47 of 2019 8 attachment, as per the phraseology in Rule 5(3), is purely within the discretion of the court. Sri.Arun again contended that ordering conditional attachment is not a sine qua non for passing an order under Order XXXVIII Rule 6(2) of the Code. On a perusal of Order XLIII Rule 1(q) of the Code, it can be seen that orders under Rule 2, Rule 3 or Rule 6 of Order XXXVIII of the Code are amenable to challenge in appeal. On this ground, it is argued that the ratio in the above decisions requires reconsideration.
9. Per contra, Sri.Rajesh, learned counsel for the respondent, supported the views taken in the above decisions. A case, according to him, where there was no conditional order of attachment at the inception, neither falls under Sub-rule (1) or Sub-rule (2) of Rule 6 of Order XXXVIII of the Code. Therefore, when we look at Order XLIII Rule 1(q) of the Code, it will be clear that such an order is not appealable.
10. In the case on hand, the impugned order was passed by the learned Sub Judge on an application filed under Order XXXVIII Rule 5 and Section 151 of the Code. Admittedly, no order of conditional attachment was ever passed in favour of the appellant. Incidentally, the defendant/respondent herein had filed a caveat before the lower court and therefore, the court issued a notice to him. He entered appearance and resisted the passing of conditional order of attachment. Learned Sub Judge heard the parties and dismissed the attachment petition mainly on finding that the appellant failed to satisfy that the petition schedule property was the only asset held by the defendant. Further, the defendant had deposited Rs.70,00,000/- as directed by this Court, which FAO No.47 of 2019 9 indicated that he was capable of satisfying the decree that might be passed against him in the suit. Reckoning these aspects, the court took a view that the appellant has failed to make out a prima facie case for directing the defendant to furnish security for the plaint claim and to get an order of attachment as prayed for.
11. Even though Sri.M.R.Rajesh requested this Court to consider merits of the case, we refrain from going into the merits because we are only called upon to resolve the legal issues involved in the order of reference. Adjudication of facts, if any required, shall be relegated to the appropriate bench. However, if the appeal is found not maintainable in the ultimate analysis, then that finding will have an impact on this proceedings.
12. In order to fully appreciate the rival contentions, we deem it apposite to have a clear understanding about the legal history of the provisions under consideration. For consolidating and amending the law relating to procedure of the courts of civil judicature in the erstwhile British empire, Act VIII of 1859, Act XXIII of 1861, etc. were enacted. Later, for the above purpose, Code of Civil Procedure, 1882 (Act XIV of 1882) was promulgated which came into force on the 1st day of June, 1882. It extended to the whole of British India. In the present Code, Section 157 says that notifications published, declarations and rules made, places appointed, agreements filed, scales prescribed, forms framed, appointments made and powers conferred under Act VIII of 1859 or under any Code of Civil Procedure or any Act amending the same or under any other enactment repealed by the present Code shall, so far FAO No.47 of 2019 10 as they are consistent with the Code, have the same force and effect as if they had been respectively published, made, appointed, filed, prescribed, framed and conferred under the present Code. Section 158 of the present Code also makes a reference to the earlier Codes of Civil Procedure and other repealed enactments.
13. On a close look at Act XIV of 1882, it can be seen that the civil procedure was schematically arranged in the form of Sections therein. In other words, the earlier arrangement was not as seen in the present Code in two parts, viz., Sections and Orders.
14. We may refer to Gazette of India published by authority on 15.02.1908. Bills introduced in the Council of the Governor General of India for making laws and regulations, reports of select committees presented to the Council, etc. were included in the Gazette. Opening remarks by the Legislative Department read thus:
"We, the undersigned Members of the Select Committee to which the Bill to consolidate and amend the laws relating to the procedure of the Courts of Civil Judicature was referred, have considered the Bill and the papers noted in the appendix, and have now the honour to submit this our Report, with the Bill as amended by us annexed thereto.
2. The chief feature of novelty in the Bill is the re- arrangement of the clauses and the relegation of minor provisions to a schedule which may be altered by High Courts. We find from the papers before us that this scheme has met with the approval of every Local Government and of all the High Courts in India. In our opinion it will give a much needed FAO No.47 of 2019 11 elasticity to our judicial procedure and will enable minor defects to be remedied as they arise without resort to the Legislature, and we recommend it to the Council. We have introduced two changes into Part X of the Bill relating to the rule-making powers. In the first place we have provided that rules must be published before they are made; the result will be that section 23 of the General Clauses Act will apply and that there will be an opportunity for the public to offer criticisms on any proposals for alterations of procedure, before those proposals are finally passed into law. We have also made a change in the composition of the Rule Committees. It has been suggested by more than one authority that the interests of the Mofussal were not sufficiently represented on those Committees as constituted under the Bill. We recognise the force of this criticism and have accordingly provided that there shall be a Subordinate Judge on each Rule Committee and that the Vakil or Pleader on the Committees shall be enrolled, but need not be practising, in the High Court, so that a Vakil or Pleader practising in the Mofussal will be eligible. We further recommend that the Bill shall not come into operation until the Ist January, 1909, in order that the public and the profession may have an opportunity of making themselves familiar with the re-arrangement.
3. We have carefully considered the criticisms on the Bill as introduced and the changes which we recommend are summarised below. It will be observed that we do not advise any departures of importance from the conclusions of the Special Committee which met at Simla during the past summer. That Committee had before it a mass of opinions from judicial and other authorities all over India dealing with every point of civil procedure, and they arrived at their FAO No.47 of 2019 12 conclusions only after a careful consideration of those opinions. We should not therefore in any case have dissented from them without strong reason, but in our judgment those conclusions are right and we accept them. Since the Bill was introduced it has been again examined and revised by some of our Colleagues and the criticisms on it have been digested in the Legislative Department. By these means our deliberations have been much expedited."
Above aspects will provide answers to the questions how and why the present Code was conceived and enacted. In the gazette notification, how the provisions of Act XIV of 1882 are disposed, dealt with and rearranged have been shown in a schedule. On a perusal of the schedule, it can be seen that present Order XXXVIII Rule 1 is a combination of Sections 477 and 478 of the Act XIV of 1882. Similarly, present Rule 2 of Order XXXVIII corresponds to Section 479 of the previous Code. Order XXXVIII Rule 3 corresponds to old Section 480. Order XXXVIII Rule 4 corresponds to Section 481. These provisions relate to arrest before judgment and therefore we are not concerned in this case.
15. Old Sections 483 and 484 are combined and rephrased to form the present Order XXXVIII Rule 5 of the Code. Rule 6 of Order XXXVIII in the present Code is a modified version of old Section 485. Since the above provisions in Act XIV of 1882 may not be readily available to many, we hereby reproduce them:
"483. Application before judgment for security from defendant to satisfy decree, and in default for attachment of property.- If at any stage of any suit the plaintiff satisfies FAO No.47 of 2019 13 the Court by affidavit or otherwise that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him,
(a) is about to dispose of the whole or any part of his property, or to remove the same from the jurisdiction of the Court in which the suit is pending, or
(b) has quitted the jurisdiction of the Court, leaving therein property belonging to him, the plaintiff may apply to the Court to call upon the defendant to furnish security to satisfy any decree that may be passed against him in such suit and, on his failing to give such security, to direct that any portion of his property within the jurisdiction of the Court shall be attached until the further order of the Court.
Contents of application.-The application shall, unless the Court otherwise directs, specify the property required to be attached and the estimated value thereof.
484. Court may call on defendant to furnish security or show cause.- If the Court, after examining the applicant and making any further investigation which it thinks fit, is satisfied that the defendant is about to dispose of or remove his property, with intent to obstruct or delay the execution of any decree that may be passed against him in the suit, or that he has with such intent quitted the jurisdiction of the Court leaving therein property belonging to him, the Court may require him, within a time to be fixed by the Court, 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 property or the value of the sum, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show FAO No.47 of 2019 14 cause why he should not furnish security.
The Court may also in the order direct the conditional attachment of the whole or any portion of the property specified in the application.
485. Attachment if cause not shown or security not furnished.- If the defendant fail to show cause why he should not furnish security, or fail to furnish the security required, within the time fixed by the Court, the Court may order that the property specified in the application, or such portion thereof as appears sufficient to satisfy any decree which may be passed in the suit, shall be attached.
Withdrawal of attachment.- If the defendant show such cause or furnish the required security, and the property specified in the application or any portion of it has been attached, the Court shall order the attachment to be withdrawn."
On juxtaposition of the present Order XXXVIII Rule 6 with Section 485 of the Act XIV of 1882, the differences perceivable are mainly in the phraseology and structuring alone and, in substance, both the provisions are intended to create the same legal result. In other words, the provisions deal with the manner of final disposal of an application filed under Order XXXVIII Rule 5 of the Code. Instead of a single Section with two paragraphs, Rule 6 has now been subdivided into 2 sub-rules. Besides, in Rule 6(2), after the words "the court shall order the attachment to be withdrawn", common to the old and present provisions, the words "or make such other order as it thinks fit" are added, thereby indicating that the court's power has been widened to do complete justice in a given case FAO No.47 of 2019 15
16. It is pertinent to note that a provision akin to Order XXXVIII Rule 5(4) of the Code was not present in Act XIV of 1882. Above provision was inserted by Act 104 of 1976 with effect from 01.02.1977.
17. Orders passed under Order XXXVIII Rule 6 of the Code are made appealable under Order XLIII Rule 1(q). It reads thus:
"1. Appeal from orders.- An appeal shall lie from the following orders under the provisions of section 104, namely:-
xxxxxxxxxxx
(q) an order under rule 2, rule 3 or rule 6 of Order XXXVIII xxxxxxxxxxx"
18. In Act XIV of 1882, Section 588, a provision similar to Section 104 and Order XLIII Rule 1(q) of the Code combined together, was provided in Chapter XLIII titled "Of appeals from orders". Section 588(24) of the old Code is relevant for our purpose, which reads thus:
"588. Orders appealable.- An appeal shall lie from the following orders under this Code, and from no other such orders:-
xxxxxxxxx (24) orders under Section 479, Section 480, Section 485, Section 492, Section 493, Section 496, Section 497, Section 502 or Section 503;
xxxxxxxxx"
It is specifically mentioned in the above Section that orders passed in appeal under the Section shall be final.
19. Needless to mention, right of appeal must be expressly given by a FAO No.47 of 2019 16 statute and it shall not be assumed that there is a right of appeal in every matter which comes under the consideration of a court. Right of appeal is not a natural right or common law right. Such a right must be given by the statute concerned. Insofar as the right of appeal against a decree or order is concerned, it is a creature of the Code.
20. Privy Council in Ohene Moore v. Akesseh Tayee (AIR 1935 PC 5) observed thus:
".......... After all, it is to be remembered that all appeals in this country and elsewhere exist merely by Statute and unless the statutory conditions are fulfilled, no jurisdiction is given to any Court of Justice to entertain them. ............"
Legal principle that an appeal is creature of a statute has been reiterated in Soorajmull Nagarmull v. State of W.B. (AIR 1963 SC 393). Supreme Court in Smt.Ganga Bai v. Vijaya Kumar (AIR 1974 SC 1126) declared the following law in crystal clear terms:
"There is an inherent right in every person to bring a suit of a civil nature and unless the suit is barred by statute, one may, at one's peril, bring a suit of one's choice. A suit for its maintainability requires no authority of law and it is enough that no statute bars the suit. But the position in regard to appeals is quite the opposite. The right of appeal inheres in no one and therefore, an appeal for its maintainability must have the clear authority of law. That explains why the right of appeal is described as a creature of statute."
21. So, there cannot be any misconception regarding the right of appeal. Order XLIII Rule 2 explicitly says that the rules of Order XLI of the FAO No.47 of 2019 17 Code shall apply, so far as may be, to appeals from orders.
22. In this context, it is worthwhile to mention about Section 104 of the Code. It says that an appeal shall lie from the orders mentioned in the Section, and save as otherwise expressly provided in the body of the Code or by any law for the time being in force, from no other orders. In Sub-section (1) to Section 104, a list of appealable orders has been specifically shown. The words "save as otherwise expressly provided in the body of this Code or by any law for the time being in force" occurring in Section 104 of the Code were not there in Act XIV of 1882. Section 104 and Order XLIII Rule 1 of the Code together specify a full list of appealable orders. Stated differently, no other order passed in a suit or proceeding can be challenged in an appeal. On a conjoint reading of these provisions, it will be clear from clause (i) of Section 104(1) that these provisions are complementary to each other, as it is specifically mentioned in the above clause that any order made under the Rules, from which an appeal is expressly allowed by the Rules, also should be treated as orders from which appeal could be laid.
23. When we look at Order XLIII Rule 1A of the Code, it is seen that where any order, other than those mentioned in Rule 1, is made against a party and thereupon any judgment is pronounced against such party and a decree is drawn up, such party may, in an appeal against the decree, contend that such order should not have been made and the judgment should not have been pronounced. It is pellucid that orders from which appeal lies are clearly mentioned in Section 104 and Order XLIII Rule 1 of the Code; any other order FAO No.47 of 2019 18 made against a party and thereupon any judgment is pronounced against such a party, he may take up a specific ground, by challenging the order, in the memorandum of appeal, to be filed against the decree by invoking Section 96 read with Order XLI Rule 1 of the Code. On a close look at Section 104 and Order XLIII Rule 1, it can be seen that only a limited number of orders, allowable in a suit or proceeding, alone are made appealable. Rest of the orders can be challenged in a regular appeal filed against the decree, as provided under Rule 1A of Order XLIII of the Code. For example, under Order XLIII Rule 1(c), an order passed under Order IX Rule 9 of the Code rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit is appealable. It is pertinent to note that an order passed under the above provision allowing an application for an order to set aside the dismissal of a suit is not made appealable at the instance of the defendant. Likewise, under clause (d) of Order XLIII Rule 1, an order under Rule 13 of Order IX of the Code rejecting an application (in a case open to appeal) for an order to set aside a decree passed exparte is appealable at the instance of a defendant. On the contrary, if such an application is allowed against the plaintiff in the suit, then he cannot file an appeal under Order XLIII Rule 1 of the Code. There are ever so many situations wherein the Code has not conferred a right of appeal, mainly considering the impact of the orders on the rights of the respective parties. In short, nobody can contend that all orders passed in a suit or proceeding should be regarded as appealable. As mentioned earlier, the right of appeal is creation of a statute and it cannot be assumed in favour of any FAO No.47 of 2019 19 party. The law takes care of the interest of parties who suffer orders, not falling within Section 104 and Order XLIII Rule 1 of the Code, by providing a safety valve in Order XLIII Rule 1A.
24. We shall now address the arguments raised by the contestants. Sri.Arun forcefully argued that the finding in Pareed Master and Saseendran to the effect that the impugned orders in both the above cases should be treated as orders under Order XXXVIII Rule 5 of the Code is legally incorrect. Further observation that when a notice is issued under Order XXXVIII Rule 5(1) of the Code in which the defendant successfully shows cause against attachment before judgment, where no conditional attachment order under Rule 5(3) had been made, the final order thereon shall be regarded as an order under Order XXXVIII Rule 5 is also a wrong legal proposition. According to him, there is no scope for passing any order under Order XXXVIII Rule 5 of the Code. It prescribes only a procedure to be meticulously followed by the court before passing a final order under Rule 6. It is also pointed out that a notice in Form no.5 in Appendix F to the Code can be issued only in a case where a conditional order of attachment was passed by a court at the initial stage of the proceedings. He would further argue that if an order of conditional attachment under Rule 5(3) of Order XXXVIII was not issued along with the notice under Rule 5(1), the court cannot subsequently issue such an order because the provision does not contemplate passing such an order later in point of time in the same proceedings.
25. Before answering these contentions, we shall closely examine the FAO No.47 of 2019 20 scope of Order XXXVIII Rule 5 of the Code. A careful reading of the above provision will clearly reveal that there are certain essential requirements to be proved to the satisfaction of the court, viz., (1) the defendant is about to dispose of the whole or any part of his property, (2) the defendant is about to remove the whole or any part of his property from the local limits of jurisdiction of the court, (3) the defendant is intending to do so to cause obstruction or delay in the execution of any decree that may be passed against him, and (4) it is incumbent upon the plaintiff to state the grounds on which he entertains an apprehension that the defendant would dispose or remove the property. The above apprehension of the plaintiff must be clearly revealed from the affidavit filed in support of the application or from other materials produced before the court.
26. If the aforementioned conditions are satisfied, court may direct the defendant either to furnish security in such sum, as may be specified in the order, and also direct him to produce and place at the disposal of the court, when required, the said property or the value of same or court may direct the defendant to appear and show cause why he should not furnish security. Rule 5(4) of Order XXXVIII explicitly says that if an order of attachment is made without complying with the provisions of Sub-rule (1) of Rule 5, such attachment shall be void.
27. Guiding principles regarding the powers of court, exercisable under FAO No.47 of 2019 21 Order XXXVIII Rule 5 of the Code, have been laid down in a catena of decisions. They are mainly, (1) an order under Order XXXVIII Rule 5 can be issued only if the circumstances exist, as are stated therein, to the satisfaction of the court, (2) an order of attachment before judgment or an order for furnishing security shall not be issued on the assumption that no harm would be done thereby to the defendant or that the defendant would not be prejudiced by issuing such a direction, and (3) the affidavit in support of the contentions of applicant should not be vague. Where it is affirmed true to the knowledge or information, it must be stated as to which portion is true to the knowledge. And, source of the information should be disclosed. Also, the grounds for belief should be stated.
28. Courts must bear in mind that an order of attachment before judgment is a drastic remedy and powers should be exercised with utmost care and caution, as it may likely to cause extreme prejudice to the defendant. Since the court is expected to act with utmost circumspection before issuing an order of attachment, it must ensure that the affidavit filed by the applicant contains all the relevant facts to clearly establish that the defendant, with an intent to obstruct or delay the execution of a decree that may be passed against him, is about to dispose of whole or any part of his property. Vague and general allegations in the affidavit are not sufficient to grant an order under the above provision. It is to be remembered that attachment before judgment is not a course to be adopted in a routine manner. Facts that the suit is yet to be tried FAO No.47 of 2019 22 and the defence by the opposite party is yet to be tested also should be kept in mind. It is trite, this process is never meant as a machinery for the plaintiff to coerce the defendant to agree to the terms set by him.
29. Coming back to the argument raised by Sri.Arun, we may deal with the first contention that Order XXXVIII Rule 5 of the Code does not empower the court to pass any order affecting rights of the parties. On the same ground the ratio in Pareed Master and Saseendran is disputed by the learned counsel. On a close reading of Rule 5, it can be seen that when the court is satisfied that the defendant is about to dispose of the whole or any part of his property or is about to remove the whole or any part of his property from the local limits of jurisdiction of the court with an intent to obstruct or delay the execution of a decree that may be passed against him, it may direct the defendant, within a specified time, either to furnish security or to appear and show cause why he should not furnish security. No doubt, this is a direction against the defendant, to be issued if the plaintiff fulfills the requirements in Rule 5. Certainly the defendant is obliged to respond to the direction, if he intends to avert the legal consequences. Further, Rule 5(3) empowers the court to pass an order of conditional attachment of the whole or any portion of the property specified in the application. Indisputably, in a given case, the court can dismiss the application, if it finds that none of the ingredients essentially required under Order XXXVIII Rule 5 of the Code is satisfied. In other words, if the petition falls completely short of the standard set in Order XXXVIII Rule 5, the court is not obliged to direct the defendant either to furnish security or to FAO No.47 of 2019 23 show cause why he should not furnish security. In this view of the matter, we are unable to agree with the learned counsel that Order XXXVIII Rule 5 does not clothe the court with a power to issue orders. If purely on legal grounds, an application for attachment before judgment is dismissed at the inception, without issuing a notice to the defendant, certainly it will be an order passed by court on the above application.
30. Another contention raised by him is that the intendment of Order XXXVIII Rule 5 is only to prescribe a procedure to be followed for passing a final order under Rule 6. True, on a reading of Sub-rule (4) of Order XXXVIII Rule 5, it will be clear that if an order of attachment is made without complying with the stipulations in Sub-rule (1) of the above Rule, such attachment shall be void. As mentioned earlier, this provision was specifically inserted by Amending Act 104 of 1976 with effect from 01.02.1977. This provision makes it amply clear that validity of an order of attachment is directly dependent on the compliance of the procedure envisaged under Sub-rule (1) of Order XXXVIII Rule 5. In that view of the matter, we find that meticulous compliance of the essential conditions and observance of the procedure are mandatory. Nevertheless, the court's power to pass binding orders under Rule 5 cannot be disputed.
31. Much has been argued about the contents in Form no.5 to Appendix F. We shall extract the provision for better clarity:
" No.5 ATTACHMENT BEFORE JUDGMENT, WITH ORDER TO CALL FOR SECURITY FOR FULFILMENT OF DECREE FAO No.47 of 2019 24 (O.XXXVIII, r.5) (Title) To The Bailiff of the Court, WHEREAS ............ has proved to the satisfaction of the Court that the defendant in the above suit ...........;
These are to command you to call upon the said defendant ............ on or before the ................ day of .......19..../20......., either to furnish security for the sum of rupees ............... to produce and place at the disposal of this Court when required .......... or the value thereof, or such portion of the value as may be sufficient to satisfy any decree that may be passed against him; or to appear and show cause why he should not furnish security; and you are further ordered to attach the said ......... and keep the same under safe and secure custody until the further order of the Court; and you are further commanded to return this warrant on or before the .........day of ......19...../20.........., with an endorsement certifying the date on which and the manner in which it has been executed, or the reason why it has not been executed.
GIVEN under my hand and the seal of the Court, this ........ day of ........19........../20......
Judge."
In the Gazette of India mentioned earlier, it has been clearly stated that the Forms shown in the Appendices have been amplified and, where necessary, redrafted. Various forms in Appendices A to H are indicative of the basic features of the matters specified therein. For example, in Appendix A, skeletal details of different types of title of the suits and plaints are mentioned. FAO No.47 of 2019 25 Depending on the necessity and the facts and circumstances in each case, parties will have to set pleadings conforming to the legal requirements. Appendix B deals with the forms of process to be issued under various circumstances in a suit or proceeding. Likewise, Appendix F deals with supplemental proceedings. Title to Form no.5 is relevant. Suppose in a case the court does not grant a conditional attachment under Order XXXVIII Rule 5(3) of the Code, still, it has to issue a notice under Rule 5(1), if the application is in conformity with the provision. In that event, suitable modification will have to be made to Form no.5, as the bailiff of the court cannot be directed to attach the property scheduled to the petition in the absence of an order passed by the court. Generally speaking, forms in Appendices have flexibility and cannot have any overriding effect on the Sections and Rules in the various Orders of the Code.
32. Starting from long title, preamble, etc., schedules appended to a statute are also regarded as internal aids for its construction. They form part of the statute. They are added towards the end and their use is mainly to avoid encumbering the Sections in the statute with matters of excessive details. They often contain forms for working out the policy underlying the Sections of the statute. In case of any conflict between the body of the Act and the Schedule, the former prevails. (Aphali Pharmaceuticals Ltd. v. State of Maharashtra - AIR 1989 SC 2227). Much importance ordinarily is not given to the forms in the Schedule as they are intended to suit the generality of cases and they give way to clear provisions of the enactment.
FAO No.47 of 2019 26
33. On a conjoint reading of Sub-rules (1) and (3) of Order XXXVIII Rule 5, it can be seen that the court has power, in an appropriate case, to pass an order of conditional attachment along with issuing directions to the defendant as provided in Rule 5(1). Argument raised on the appellant's behalf, that court cannot issue an order of conditional attachment later, if it did not do so alongside issuing a direction under Rule 5(1), is fallacious. What is obligatory under Rule 5(4) is that at or before issuing an order of conditional attachment under Rule 5(3), the statutory mandate under Rule 5(1) should have been complied. In other words, if the defendant is not directed to furnish security or show cause why he should not furnish security as provided under Rule 5(1) of Order XXXVIII, then an order passed behind his back under Rule 5(3) attaching his property will be legally improper. However, opening sentence of Order XXXVIII Rule 5(1) shall not be ignored. It says "Where at any stage of a suit, the Court is satisfied, by affidavit or otherwise .................". So, in a given case, if the court has issued only a direction under Rule 5(1) and not an order under Rule 5(3) at the institution of the proceedings, still we find no fetter in the court's power to pass an order of conditional attachment under Rule 5(3), if it is satisfied by affidavit or otherwise about the malafides of the defendant. Take a case where the defendant, after receiving notice under Section Rule 5(1), goes on seeking time for filing counter statement, at the same time he takes steps to alienate his property to defeat the plaintiff. Then the court can pass an order under Rule 5(3), if it is satisfied about the malafide intention of the defendant. If the above view is not taken, the words "at any stage of a suit" occurring in Rule FAO No.47 of 2019 27 5(1) of Order XXXVIII will be rendered otiose. So, we reject the appellant's contention that the court is powerless to pass an order of conditional attachment under Order XXXVIII Rule 5(3) if it was not passed alongside the direction issued under Rule 5(1). Such an order can be passed at any stage of a suit as clearly stated in Rule 5(1).
34. Another contention raised by Sri.Arun is that if Order XXXVIII Rule 6(2) of the Code is read in a purposive manner, it will be seen that the view taken in Pareed Master and Saseendran is incorrect. Order XXXVIII Rule 6(1) of the Code does not apply to this case. It is clear from this provision that the court is empowered to order attachment of the property specified in the application or such portion thereof, as appears sufficient to satisfy any decree which may be passed in the suit, if the defendant fails to show cause why he should not furnish security or he fails to furnish security required by the court within the time fixed by it. There is no difficulty in understanding the intent and purport of this provision. As stated above, we are not concerned with this provision.
35. Sri.Arun urged us to construe order XXXVIII Rule 6(2) in a manner, which according to him would serve a wider purpose. No doubt, intention of the legislature is the most important aspect to be considered while interpreting a statutory provision as statute is an edict of the legislature.
36. An important principle in the interpretation of statutes is having regard to subject and object of the enactment. Learned author Justice G.P.Singh on "Principles of Statutory Interpretation" (14th Edition) makes a FAO No.47 of 2019 28 reference to the rule of purposive construction (mischief rule) in Heydon's case ((1584) 3 Co.Rep.7a, p.7b : 76 ER 637) in the following manner:
"When the material words are capable of bearing two or more constructions the most firmly established rule for construction of such words "of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law)" is the rule laid down in Heydon's case which has now attained the status of a 'classic'. The rule which is also known as 'purposive construction' or 'mischief rule', enables consideration of four matters in construing an Act :
(i) What was the law before the making of the Act, (ii) What was the mischief or defect for which the law did not provide,
(iii) What is the remedy that the Act has provided, and (iv) What is the reason of the remedy. The rule then directs that the courts must adopt that construction which "shall suppress the mischief and advance the remedy".
37. According to Sri Arun, in a case where the defendant shows cause or furnishes security consequent to a direction under Rule 5(1), the court shall dismiss the application or make such other order as it thinks fit under Rule 6(2), irrespective of the fact whether there was a conditional order of attachment issued at the beginning or not. In other words, he contended, issuance of an order of conditional attachment under Rule 5(3) is not a sine qua non for disposal of an application under Rule 6(2). He would say, the last limb of Rule 6(2), viz; "or make such other order as it thinks fit" will have to be applied in a case where there is no conditional order of attachment passed and therefore, no occasion for the court to withdraw the order of attachment. It is his contention that if we read the provision in the above manner, it can be seen that FAO No.47 of 2019 29 disposal of an application under Order XXXVIII Rule 5, in which no order of attachment was granted under Rule 5(3), will also fall within Rule 6(2), thereby conferring a right of appeal on the aggrieved party as provided under Order XLIII Rule 1(q) of the Code.
38. Since the above argument is specious, we are unable to accept it for the reasons shown below.
39. In order to gather the intention of the legislature, it is a basic principle, the statute must be read as a whole. Another important rule of statutory interpretation is that if meaning of the words employed in a provision is plain, effect must be given to it irrespective of the consequences. It has been consistently held that the intention of the legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said.
40. Another important principle is that rejection of words employed in a statute should be avoided. In Aswini Kumar Ghose and another v. Arabinda Bose and another (AIR 1952 SC 369) the law declared by a Constitution Bench is thus:
"It is not a sound principle of construction to brush aside words in a statute as being inapposite surplusage, if they can have appropriate application in circumstances conceivably within the contemplation of the statute."
Another Constitution Bench in Union of India and another v. Hansoli Devi and others (AIR 2002 SC 3240) held thus:
"It is a cardinal principle of construction of statute FAO No.47 of 2019 30 when language of the statute is plain and unambiguous, then the Court must give effect to the words used in the statute and it would not be open to the Courts to adopt a hypothetical construction of the ground that such construction is more consistent with the alleged object and policy of the Act. It is no doubt true that if on going through the plain meaning of the language of statutes, it leads to anomalies, injustices and absurdities, then the Court may look into the purpose for which the statute has been brought and would try to give a meaning which would adhere to the purpose of the statute.
xxxxxxxxxxxx It is not a sound principle of construction to brush aside words in a statute as being inapposite surplusage. If they can have appropriate application in circumstances conceivably within the contemplation of the statute. Similarly, it is not permissible to add words to a statute which are not there unless on a literal construction being given a part of the statute becomes meaningless. But before any words are read to repair an omission in the Act, it should be possible to state with certainty that these words would have been inserted by the draftsman and approved by the legislature had their attention been drawn to the omission before the Bill had passed into a law. At times, the intention of the legislature is found to be clear but the unskilfulness of the draftsman in introducing certain words in the statute results in apparent ineffectiveness of the language and in such a situation, it may be permissible for the Court to reject the surplus words so as to make the statute effective."
But in the given situation, we find absolutely no legal reason to attribute any FAO No.47 of 2019 31 unskilfulness on the part of the draftsmen of the Code to construe Order XXXVIII Rule 6(2) the way the appellant canvassed.
41. Importantly, the legislature is deemed not to waste its words or to say anything in vain (Quebec Railway, Light, Heat and Power Company Limited v. Vandry and others (AIR 1920 PC 181). This principle has been approved in Union of India and another v. Hansoli Devi and others (supra).
42. On a careful reading of Order XXXVIII Rule 6(2) of the Code, it can be seen that it applies in a singular situation where the property specified in the application or any portion thereof has been attached and the defendant in such a case has shown cause to the satisfaction of the court or furnished the required security. Then the court should withdraw the order of attachment. Essentially what is required under Rule 6(2) is withdrawal of attachment already passed where the defendant shows cause or furnishes the required security. To put it differently, Rule 6(2) can have no application in a case where the property specified in the application or any portion of it has not been attached by invoking Order XXXVIII Rule 5(3). What is intended by Rule 6(2) is withdrawal of attachment on showing cause or furnishing security for which an order of attachment is a condition precedent. Argument raised by Sri. Arun that the words "or make such other order as it thinks fit" imply a situation even when no attachment order was passed cannot be accepted as it will run contrary to the spirit of the provision.
43. It is vehementally argued on behalf of the appellant that Rule 6(2) should be read in the following manner: "Where the defendant shows such FAO No.47 of 2019 32 cause or furnishes security, the court shall make such order as it thinks fit" and if so read, the order will become appealable under Order XLIII Rule 1(q) of the Code. If such an interpretation is adopted, certainly it will completely violate all canons of interpretation. Besides, it will truncate the provision resulting in draining out the soul and spirit underlying in it. Rules of statutory interpretation do not permit the courts to dissect a provision so as to render any portion of it meaningless or otiose. Last limb of Rule 6(2), enabling the court to make such other order as it thinks fit, is an addition made in the present Code. As it was not there in Act XIV of 1882, it can only be presumed that it was added with a specific purpose of giving effect to the order of withdrawing attachment in an appropriate case. Stated differently, when the defendant shows cause or furnishes the required security, the court shall order attachment to be withdrawn and, in a given case, it shall make such other order as it thinks fit to effectuate the lifting of attachment order. It is conceivable that in certain cases, subsequent to the order of attachment, some measures might have been taken to alter the condition of the property. In such situations, the court has power to restore the property to its original condition. Authority conferred on the court to make such other order as it thinks fit is for doing complete justice between the parties in a given case and that cannot be construed divorced of the power of court to withdraw an order of attachment.
44. We shall now discuss another important aspect regarding construction of a statutory provision. In many statutes, we come across conjunctive and disjunctive words like "and" and "or". It is well settled that the FAO No.47 of 2019 33 word "or" is normally disjunctive and the word "and" is normally conjunctive (see Hyderabad Asbestos Cement Products v. Union of India - (2000) 1 SCC 426). But at times they are read as vice versa to give effect to the manifest intention of the legislature as disclosed from the context. Ishwar Singh Bindra v. State of U.P. (AIR 1968 SC 1450) laid down thus:
""And" has generally a cumulative sense, requiring the fulfilment of all the conditions that it joins together and herein it is the antithesis of 'or'. Sometimes, however, even in such a connection, it is, by force of a context, read as "or".
Sometimes to carry out the intention of the legislature it is found necessary to read the conjunctions "or" and "and" one for the other."
Law declared by Constitution Bench in R.S.Nayak v. A.R.Antulay ((1984) 2 SCC 183) is thus:
"Depending upon the context, 'or' may be read as 'and' but the court would not do it unless it is so obliged because 'or' does not generally mean 'and' and 'and' does not generally mean 'or'."
Scrutton, L.J. stated in Green v. Premier Glynrhonwy Slate Company Limited ((1928) 1 KB 561) that "you do sometimes read "or" as "and" in a statute. But you do not do it unless you are obliged because "or" does not generally mean "and" and "and" does not generally mean "or"". (Also see Nasiruddin v. State Transport Appellate Tribunal (AIR 1976 SC 331)). Lord Halsbury pointed out in Mersey Docks and Harbour Board v. Henderson Brothers ((1888) 13 AC 595) that the reading of "or" as "and" is not to be FAO No.47 of 2019 34 resorted to, "unless some other part of the same statute or the clear intention of it requires that to be done". It is stated in Union of India v. Ind-Swift Laboratories Ltd ((2011) 4 SCC 635) that where a provision is clear and unambiguous the word "or" cannot be read as "and" by applying the principle of reading down.
45. In the back drop of the above unquestionable legal principles, we hold it impermissible to read and understand the opening wording in Rule 6(2) by substituting "and", occurring therein, with "or". Stated precisely, that part of the statutory provision, "where the defendant shows such cause or furnishes the required security and the property specified or any portion of it has been attached" can never be read as "where the defendant shows such cause or furnishes the required security or the property specified or any portion of it has been attached". Word "and" connecting the first part dealing with furnishing of security with the second part referring to attachment of property should be read and understood only as a conjunction. It can never be a disjunction. Plainly put, the court's power to lift attachment mentioned under Rule 6(2) is to be exercised in relation to a property that has been attached under Order XXXVIII Rule 5(3), when the defendant shows sufficient cause or furnishes security. Therefore, on an analysis of the provision, in accordance with the well settled rules of statutory interpretation, we find it impossible to agree with the arguments advanced on behalf of the appellant.
46. Now, we shall deal with another facet of the legal issue. Effect of usage and practice is one of the external aids to construction of a statute. FAO No.47 of 2019 35 Maxim "Contemporanea Expositio Est Optima Et Fortissima in Lege" is squarely applicable in the interpretation of statutes too. We may extract a passage from Principles of Statutory interpretation by Justice G.P.Singh stated at page 375:
"Usage or practice developed under a statute is indicative of the meaning ascribed to its words by contemporary opinion and in case of an ancient statute is an admissible external aid to its construction."
Meaning of the maxim "Contemporanea Expositio Est Optima Et Fortissima in Lege" , according to Broom's Legal Maxims (12th edition, page 491) is thus:
"The best and surest mode of construing an instrument is to read it in the sense which would have been applied when it was drawn up."
47. Referring to Magna Carta, Lord Coke said:
"This and the like were the forms of ancient Acts and graunts, and the ancient Act and graunts must be construed and taken as the law was holden at that time when they were made".
The above observation relating to construing ancient statutes was approved in Senior Electric Inspector v. Laxminarayan Chopra - AIR 1962 SC 159. As stated by Martin, B., (George Morgan v. Henry Crawshay - (1871) LR 5 HL
304), "In construing old statutes, it has been usual to pay great regard to the construction put upon them by the judges who lived at or soon after the time when they were made, because they were best able to judge of the intention of the makers at the time." This principle was referred to in Governors of FAO No.47 of 2019 36 Campbell College, Belfast v. Commissioner of Valuation for Northern Ireland ((1964) 2 All ER 705).
48. We are aware of the principle that the maxim "Contemporanea Expositio" is not applicable to a modern statute (see Senior Electric Inspector v. Laxminarayan Chopra (supra). It is axiomatic, even if the persons who deal with the Act understood it in a particular manner, that does not prevent the court in giving to the Act its true construction. We have earlier mentioned solid legal reasons to reject the interpretation suggested by the learned counsel for appellant to Order XXXVIII Rule 6(2). Moreover, long line of decisions by various High Courts contrary to the appellant's contention also prompt us to apply the principle of stare decisis in the matter of interpretation of the above provision.
49. Sri Arun fairly placed some decisions which may not support his view. First decision is Mahendra Narain Saha and others v. Gurudas Bairagi and another (AIR 1916 Calcutta 287). From the decision, it can be seen that an original order passed by the Sub Judge, Pabna dated 21.06.1915 came up for consideration before the Calcutta High Court and it was decided on 18.02.1916. It is to be remembered that the Code was only 8 years old at that time. Therefore, this decision can safely be regarded as contemporaneous to the enactment of the Code.
50. Question raised by the respondents in the appeal before Calcutta High Court is about the competency of an appeal against dismissal of an attachment petition. Appellants contended before the High Court that the order FAO No.47 of 2019 37 of dismissal of attachment petition by the Sub Judge should be deemed to have been made under Order XXXVIII Rule 6 of the Code and consequently it was open to an appeal under Order XLIII Rule 1(q) of the Code. Respondents, on the other hand, urged that the order could not have been made under Rule 6 and that it was probably made under Rule 5 of Order XXXVIII. If so, it was not liable to be challenged by way of an appeal. In a suit instituted on 24.03.1915, the trial Judge issued notice on 03.05.1915 on the application for attachment before judgment invoking Order XXXVIII Rule 5 of the Code directing the defendants to show cause why an attachment order should not be issued before judgment. And, at the same time, directed the defendants not to part with the property in any way. High Court observed that the order was not in strict accordance with the provisions of the Code and they were overlooked by the trial court. Reference to Form no.5 in Appendix F to the Code was also made in the judgment. After considering the rival contentions, the Division Bench held thus:
"In the case now before us, the Court did not make an ex parte order upon the defendants to furnish security; nor did the Court direct them to appear and show cause why they should not furnish security. It is also plain that the Court did not direct the conditional attachment of the whole or any portion of the property required to be attached. We have, no doubt, been pressed by the appellants to take the view that the direction upon the defendants not to part with the properties in any way was in essence an order of conditional attachment within the meaning of Clause (3) of R.5; but we are not prepared to accept this contention as FAO No.47 of 2019 38 well founded. If the defendants had disobeyed the direction of the Court, they might possibly have rendered themselves liable to punishment for contempt of Court; but a transferee from them would not have been affected as he would have been, if there had been a conditional attachment of the property. We must take it, therefore, that the order as framed was not in accordance with R.5."
51. Further narration of facts would show that the defendants entered appearance and showed cause on 29.05.1915. On 21.06.1915 both parties were heard and affidavits filed by them were considered. Then the court expressed an opinion that sufficient cause had not been made out by the plaintiffs for attachment before judgment and it dismissed the application. Noticing this, the High Court went on to say:
"....... To enable the appellants to support this appeal, it is necessary for them to establish that this is an order under R.6 of O.38, Civil Procedure Code. Now, the first clause of R.6 provides that "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." The order contemplated by this clause of R.6 is clearly an order of attachment. No such order admittedly has been made in this case. Clause (2) of R.6 provides that "where the defendant shows such cause"
[that is, shows cause, if called upon to do so, under Clause (1) of R.5] "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 FAO No.47 of 2019 39 such other order as it thinks fit.' It is plain that the attachment which the Court is thus directed to withdraw, is a conditional attachment made in terms of Clause 3 of R.5. No such order of withdrawal was made in this case and none, indeed, could have been made, as no attachment had been ordered. The position in substance, is that an application for attachment before judgment has been made under R.5; the Court has heard the defendants and has dismissed the application. The parties never reached the stage contemplated by R.6;
consequently no appeal lies under O.43, R.1, Clause (q), Civil Procedure Code."
Finally, the appeal was dismissed. This decision was rendered shortly after enactment of the Code. By applying the maxim "Contemporanea Expositio", the legal principle stated in the above decision could be regarded as the expression of true intent and purport of Order XXXVIII Rule 6 of the Code.
52. Another relevant decision is Om Prakash v. Mohammad Ishaq (AIR 1933 All 557). An order passed by a learned Sub Judge in an application for attachment before judgment was taken up in appeal before a Division Bench of Allahabad High Court, complaining that the Judge wrongly directed the mortgagor/defendant either to furnish security or to show cause why an order of attachment before judgment should not be passed when an application for a decree under Order XXXIV Rule 6 of the Code was not sought for in the suit. Under Order XXXIV Rule 6, the plaintiff could have filed an application before the court stating that the net proceeds of the sale held under Order XXXIV Rule 5 would fetch only insufficient amount due to him. It was contended that without taking recourse to Order XXXIV Rule 6 of the Code, the FAO No.47 of 2019 40 application under Order XXXVIII Rule 5 should not have been entertained by the trial Judge. Having considered the provision in Order XXXVIII Rule 6 of the Code, the Division Bench held thus:
"Sub-rule (1) contemplates cases in which the Court orders attachment on the defendant: (a) failing to show cause, or (b) failing to furnish the security required. In the case before us, the defendant showed cause in obedience to the direction of the Court, and no order for attachment before judgment was passed. It is therefore clear that the order in question is not one under R.6(1). R.6(2) would have been applicable but for circumstance that no conditional attachment of the whole or any portion of the property was ordered. It seems to us that Sub-R.(2) was not intended to cover cases in which the defendant successfully showed cause against the application praying for attachment before judgment and in which no conditional attachment under R.5(3) had been made. Broadly speaking, R.6 contemplates cases in which attachment has been either ordered or, if previously made, it has been withdrawn. In this view, no appeal lies under O.43(1)(q), Civil P.C., where no conditional attachment has been made under O.38, R.5(3) and the application for attachment before judgment ended in dismissal on the defendant showing cause against it. ............."
53. A Division Bench of Andhra Pradesh High Court in Union Bank of India, Visakapatnam v. M/s.Andhra Technocrat Industries (AIR 1982 AP
408) considered the aforementioned provisions in the light of the decisions rendered by the High Courts of Calcutta, Allahabad, Nagpur and Patna and FAO No.47 of 2019 41 held thus:
"Now O.43, R.1(q), C.P.C. makes both these orders under R.6 appealable. The other orders are not appealable. An order dismissing an application under O.38, Rule 5 is not appealable. An order under Rule 5 merely directing the defendant to furnish security or to appear and show cause why security should not be furnished is not appealable. Only an order allowing an application under Rule 5 and an order withdrawing the attachment made under sub-rule (3) of Rule 5 any (sic.) cause being shown by the defendant, are appealable."
54. When a revision was taken up before High Court of Calcutta challenging an order dismissing an application for attachment before judgment, a Division Bench of the Court, in R.S.Cambray and Co.(P) Ltd. v. Bishnu Banerjee (AIR 1988 Cal 400), by relying on precedents ruled thus:
"Be that as it may, as we have already noted, no appeal would lie against an order refusing attachment before judgment unless the same was preceded by a conditional attachment under Rule 5(3) of Order 38 and as the impugned order in this case was not preceded by any such order of conditional attachment, we must hold that the impugned order is not appealable. Our view finds full support from the Division Bench decision of this Court in Mahendra Narain v. Gurudas, AIR 1916 Cal 287, followed in the Division Bench decision of this Court in Hara Govinda Das v. Dhur and Co., ILR (1955) 1 Cal 478, a Division Bench decision of the Patna High Court in Kedar Nath v. Tejpal, AIR 1935 Pat 219, a Division Bench decision of the Nagpur High Court in F.X.Rebellow v.FAO No.47 of 2019 42
Ladhasingh Bedi, AIR 1944 Nag 30, and also a recent decision of the Andhra Pradesh High Court in Union Bank of India v. Andhra Technocrat Industries, AIR 1982 Andh Pra 408. The present revisional application, therefore, is maintainable as no appeal stands in the way."
However, it is noteworthy that this decision was rendered prior to Surya Dev Rai v. Ram Chander Rai and others (AIR 2003 SC 3044) wherein the Supreme Court, on interpreting Section 115 of the Code as amended by Act 46 of 1999, held that newly added proviso to the above Section has taken away the scope of exercising revisional jurisdiction in a case, except where the order impugned, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings. We are aware that in Radhey Shyam v. Chhabi Nath ((2015) 5 SCC 423), a three Judge Bench of the Supreme Court overruled the view expressed in Surya Dev Rai (supra) that a writ petition under Article 226 of the Constitution could be maintained against the order of a civil court. However, the finding therein regarding the limitation brought in by the amendment to Section 115 of the Code in exercising revisional jurisdiction has not been disturbed by the pronouncement in Radhey Shyam. Therefore, the observation in the above decision regarding maintainability of a revision may not be workable at present.
55. Again the issue came up before a Division Bench of Madras High Court in R.S.Pillai v. M.L.Peratchi (AIR 2000 Mad 483). Dismissal of an application filed under Order XXXVIII Rule 5 was challenged before the High Court in a Civil Miscellaneous Appeal (CMA). Application under Order XXXVIII FAO No.47 of 2019 43 Rule 5 was dismissed by the trial Judge mainly on the ground that the appellant did not prove that the respondents were taking steps to create encumbrances over the scheduled properties. One of the pointed questions raised was if a CMA could be maintained against the order of dismissal of an application filed under XXXVIII R.5. Regarding this question, the High Court after considering all the relevant decisions cited before it, held that no appeal would lie against an order dismissing an application under Order XXXVIII Rule 5.
56. At this juncture, it is apposite to consider the legal effect of a consistent view taken on this issue by various High Courts over a long period of time. According to Black's Law Dictionary, the maxim "stare decisis et non quieta movere" means "to stand by things decided and not to disturb settled points". It is a well accepted judicial principle. The phrase "stare decisis" means "to stand by things decided". The rule of adherence to judicial precedents finds its expression in the doctrine of stare decisis. This doctrine is simply that, when a point or principle of law has been once decided or settled by the ruling of a competent court in a case in which it is directly and necessarily involved, it will no longer be considered as open to examination or to a new ruling, unless it be for compelling reasons and in exceptional cases. The line of decisions right from the enactment of the Code adopted a consistent view that a final order passed on an application under Order XXXVIII Rule 5, in a case in which no conditional attachment order was given, will not fall within Order XXXVIII Rule 6(2) of the Code. If we were to subscribe to the contention advanced by learned counsel for the appellant, it would imply unsettling the law which has FAO No.47 of 2019 44 stood the test of time for about a century. This principle relating to stare decisis has been clearly declared in Ram Adhar Singh v. Bansi ((1987) 2 SCC 482). We find that application of the legal principles "Contemporanea Expositio" and "stare decisis" are additional reasons to reject contentions of the appellant. Other legal reasons we have already elucidated in the previous paragraphs. For the above reasons, we find that there is no legal infirmity in the view taken in Pareed Master and Saseendran.
57. Another legal issue raised by Sri.Arun is regarding the legality of the initial order passed by the court below on the application for attachment before judgment when it noticed that the defendant had filed a caveat under Section 148A of the Code. This issue is not directly covered by the order of reference. Yet, we may express our view on it for the sake of completion of the discussion. It is brought to our notice that the court below simply ordered issuance of notice on the application for attachment before judgment. Stated precisely, no direction as contemplated under Order XXXVIII Rule 5(1) was issued. Aggrieved by the above order, the appellant preferred O.P.(C) No.3421 of 2018 before this Court by invoking Article 227 of the Constitution of India. In the original petition, strangely the appellant, instead of requesting for an order of attachment, sought for an order against the respondent restraining him from transferring the property scheduled to the attachment petition. Considering the contentions, learned single Judge of this Court passed a judgment on 21.12.2018 directing the respondent/defendant to deposit Rs.70,00,000/- in the name of the Presiding Officer of the Sub Court concerned. That order has been FAO No.47 of 2019 45 complied with by the respondent. That was also taken as one of the reasons by the lower court to dismiss the application.
58. Appellant's counsel contended that filing a caveat under Section 148A of the Code will not fetter the court's power to issue a direction under Order XXXVIII Rule 5(1) of the Code. Per contra, learned counsel for the respondent contended that once a caveat is filed, the court cannot issue a notice directing the defendant either to furnish security or to appear and show cause why he should not furnish security. This argument raised by the respondent, though may look attractive at the first blush, is slightly sophistical. On a careful reading of Section 148A of the Code, it can be seen that the caveator gets a right to lodge a caveat when an application is expected to be made or has been made in a suit or proceeding, instituted or about to be instituted, if he claims a right to appear before the court on the hearing of such application. This is clear from Section 148A(1) of the Code. Sub-section (3) says that after a caveat has been lodged, if any application is filed in any suit or proceeding, the court shall serve a notice on the caveator. Obvious purpose of filing a caveat is to enable the caveator to appear before the court and contest the relief claimed in the application. Generally, it is intended to prevent passing exparte orders affecting the right of a caveator. That is, by lodging a caveat, the caveator gets a right of hearing on an application expected to be made or has been made in a suit or proceeding instituted or about to be instituted against him. In our view, Section 148A does not completely denude the powers of the court to pass appropriate orders in a given case, if justice so demands. FAO No.47 of 2019 46 Suppose in a case the plaintiff establishes genuine reasons for issuance of an exparte commission for local inspection under Order XXVI Rule 9 of the Code and satisfies the court that the defendant (caveator) is taking urgent steps to obliterate or efface the material evidence in the case. If that be so, merely because a caveat has been lodged by the opposite party, the court shall not throw up hands expressing its helplessness. It shall issue an urgent commission for local inspection to gather evidence for the proper adjudication of the case. Court certainly possesses power to pass such innocuous orders despite a person files a caveat against the plaintiff. Needless to point out, the courts exist for dispensation of justice and not for its denial for technical reasons when law and justice otherwise demand. Merely by lodging a caveat no one can thwart the legal process.
59. In the context of an application for attachment before judgment, order to issue notice is equal to issuance of a direction under Rule 5(1) of Order XXXVIII. This aspect will be clear if we read Order XXXVIII Rules 5(1) and (4) together because without a direction under Rule 5(1), any order passed under Rule 5(3) shall be void. If a notice simplicitor alone was issued at the inception of the proceedings, without a direction under Rule 5(1) of Order XXXVIII, the court will be obliged to issue a direction under Rule 5(1) again to the respondent/defendant after his appearance, in an appropriate case if it eventually finds that passing an order of conditional attachment, by invoking Rule 5(3), before final disposal of the application is necessary. The peculiar stipulations under Order XXXVIII Rules 5(1), (3) and (4) should have been FAO No.47 of 2019 47 considered by the trial court before issuing a notice in the usual manner. Issuing a direction again to the defendant under Order XXXVIII Rule 5(1) after his appearance is a cumbersome procedure, but it is inevitable to make the conditional attachment order, if any passed, valid in law.
60. However, in this case the above aspects may be of academic interest alone since the court below dismissed the application finding that the applicant failed to show that the petition scheduled property is the only property available to the defendant and he has no means to satisfy the decree that may be passed against him. Besides, the court below also found that deposit of Rs.70,00,000/- as per the direction of this Court disentitled the appellant from claiming an order of attachment. Hence, non-issuance of a direction under Order XXXVIII Rule 5(1) of the Code to the respondent in this case did not cause any prejudice to the appellant in this case.
61. Notwithstanding that in Pareed Master and Saseendran, elaborate legal reasons are not mentioned for entering a finding that 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, we agree with the views taken in the decisions. We answer the reference affirming the views in Pareed Master and Saseendran.
We find that the appeal against the impugned order is not FAO No.47 of 2019 48 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. Hence, the records shall be returned to the appellant and he may work out his remedy in a legally proper manner.
A.HARIPRASAD, JUDGE.
ANU SIVARAMAN , JUDGE.
M.R.ANITHA, JUDGE cks