IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 2ND JULY 2010 / 11TH ASHADHA 1932 FAO.No. 143 of 2010() --------------------- OS.91/2007 of SUB COURT,NEYYATTINKARA .................... APPELLANT/RESPONDENT/DEFENDANT ---------------------------------------- JOSEPH SATHYADAS, DHANYA, LOORDUPURAM, KANJIRAMKULAM DESOM, -DO- VILLAGE, INSPECTOR, K.S.R.T.C. DEPOT, POOVAR, DIST. THIRUVANANTHAPURAM. BY ADV. SRI.P.R.VENKETESH RESPONDENT/PETITIONER/PLAINTIFF ----------------------------------- MADHAVAN VISWANATHAN, PULLUVILA MINI MANDIRAM, KARUMKULAM DESOM, DO. VILLAGE. ADV. SRI.R.MANOJ THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 02/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. --------------------------- C.M.Appl. No.802/2010 & F.A.O. No.143/2010 -------------------------- Dated this the 2nd day of July, 2010 ORDER/JUDGMENT Thottathil B.Radhakrishnan, J. The defendant in a suit for recovery of money is the appellant. An order of attachment before judgment was issued on 5.7.2008 by the trial court in I.A. 209/2008. That order of attachment, going by the impugned order, is merely a conditional one, requiring the defendant to furnish security. A conditional order of attachment could be issued only under Order XXXVIII, Rule 5(3) of CPC. The requirement to furnish security is also imposed under Rule 5 of Order XXXVIII. Therefore the impugned order is only an order of conditional attachment under Order XXXVIII Rule 5 and is not a final order of attachment under Order XXXVIII Rule 6. Adverting to Order XLIII Rule (1)(q) while an order under Rule 6 of Order XXXVIII is included therein as an appealable order, a conditional order of attachment under Rule 5 is not made appealable. Right of appeal has to be conferred by the statute. In the absence of that, this appeal itself does not lie. Therefore we need not proceed even into the question as to whether the delay is to be condoned, though counsel on both sides made certain FAO No.143/2010 2 submissions touching on the merits of the case as well. As of now, following the exparte decree, the parties are before the executing court. In terms of Order XXXVIII Rule 11 an order of attachment before judgment will continue after decree and the said property need not be reattached in execution. The question whether the conditional order of attachment, which has not been made absolute, would continue after the decree and whether the executing court should consider confirmation of the conditional order of attachment and still further, whether the attachment as proposed could be made at all on the face of the provisions providing insulation of retirement benefits from attachment are all matters that have to be raised by the appellant before the competent jurisdiction, which as of now is the executing court. Without prejudice to any of such right and also the right of the respondent/decree holder to seek reliefs before the executing court, this appeal and C.M.Appl. are dismissed. THOTTATHIL B.RADHAKRISHNAN (JUDGE) S.S.SATHEESACHANDRAN (JUDGE) vps FAO No.143/2010 3 FAO No.143/2010 4