Law:

Section:

(a) Civil Procedure Code (V of 1908),O. XXXVIII, rr. S, 6 & 9 and O. XLIII, r. 1(q)---Attachment before ---Court, on being moved for attachment, ordering "Court is satisfied that conditions attracting applicability of O. XXXVIII, r. S exist, conditional attachment of goods ordered with notice to respon­dents"-Subsequently, on respondent showing cause, Court with­drawing order of attachment holding "there was no risk of non-satisfaction of the decree even if the suit succeeds"---Withdrawal of attachment held to be under r. 6(2) and not under r. 9 of O. XXXVIII and as such appealable under O. XLIII, r. 1(q). The Court on an application moved by the plaintiff directed conditional attachment under O. XXXVIII, r. 5, C. P. C. of the defendant's property. Subsequently the defendants in showing cause against order of conditional attachment alleged that the attachment before was unjustified because they had furnished security (by way of mortgage of a factory) to the plaintiff the face value of which was more than double of the amount claimed. The Court accepted the defendant's application and holding that there was no "risk of non-satisfaction of the decree even if the suit succeeds" withdrew the attachment. The plaintiff thereupon filed an appeal to the High Court against the order of withdrawal and the High Court set aside that order. In appeal before the Supreme Court it was argued that the order withdrawing attachment was one under rule 9 and not under rule 6 of Order XXXVIII, C. P. C. and as such was not appealable under Order XLIII, r. 1(g), C. P. C. Held, in this case, according to counsel, unconditional attach­ment was never ordered, and no attachment was physically made; therefore, it followed that neither the order of attachment was made under Order XXXVIII, rule 6(1), nor withdrawal of the attachment took place under Order XXXVIII, rule 6(2). Since nothing was physically attached, the order dated the 31st of August 1968, purporting to withdraw the attachment amounted to withdrawal of the order of attachment only. It could be made only under rule 9 of Order XXXVIII, C. P. C. because the words "has been attached" do not occur in it, and should be taken to…

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