JUDGMENT
A.M. Bhattacharjee, J.
1. During the hearing of this revision against an order dismissing an application for attachment before judgment under the provisions of Order 38. “Rule 3 of the Code of Civil Procedure, a question arose as to whether the impugned order is appealable under the Code. An appeal and a revision, being mutually exclusive, cannot co-exist and a revision cannot lie to this Court where an appeal lies to this Court or to any Court subordinate to this Court, as has now been made expressly clear by Sub-section (2) of Section 115, inserted by the Amendment Act of 1976.
2. In this case, on an application being made by the plaintiff under Order 38. Rule 5 for attachment before judgment, the trial Court directed the plaintiff to show cause
why he should not furnish security, but no conditional order of attachment was made under Sub-rule (3) of Rule 5. And on the defendant showing cause and after hearing the parties, the trial Judge has dismissed this application. Is such an order refusing attachment before judgment appealable? It would be so only if the same can be regarded to have been passed under Rule 6 of Order 38, that being the only Rule, orders whereunder relating to attachment before judgment have been made appealable under Order 43, Rule 1(q). Rule 6 reads thus :–
“6(1) Where the defendant fails to show cause why he should not furnish security, or fails to furnish the security required…. the Court may order that the properties 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security, and the property specified or any portion of it has been attached, the Court shall order the attachment to be withdrawn, or make such other order as it thinks fit.”
3. Under Rule 6(1), therefore, any order directing attachment before judgment is appealable, whether or not there has been a prior conditional attachment under Rule 5(3). But an order refusing attachment would be appealable under Rule 6(2), only_ if there was a prior conditional attachment under Rule 5(3), as would appear from the words “and the property specified…..has been attached” in that sub-rule. An order refusing attachment before judgment, in order to come within Rule 6(2), must be preceded by an order of conditional attachment under Rule 5(3), and if not so preceded, would not be appealable under Order 43. Rule 1(q). The rationale behind these provisions appear to to be this.
4. Attachment before judgment is a harsh remedy and since attachment of a defendant’s property before his liability has been established at the trial may seriously embarrass and prejudice the defendant, a Court ought not to grant it unless it cannot but. It was, therefore, thought that after such an order is passed by the trial Court, the defendant ought to have the right to assail that order, on facts as well as law in a regular
appeal before an appellate Court. But once the trial Court on a consideration of the show cause made by the defendant and other materials on record has declined a pre-trial attachment on finding no case therefor, the defendant ought not to be made liable to face a reconsideration and reassessment of the entire matter, on facts as well as law, by a Court of appeal during the trial of the suit and should be allowed to conduct his defence freely without any financial embarrassment or proprietary handicap. Where however, the trial Court, even though it has finally refused attachment after show cause by the defendant under Rule 6(2), nevertheless initially directed an ad interim conditional attachment, on the materials then on record, it was thought that in such a case the plaintiff having once made out a case to the satisfaction of the trial Court for conditional attachment, should be allowed one further opportunity to agitate the matter before the appellate Court.
5. But if that be the reason then one may find it difficult to appreciate as to why appeals have been provided under Order 43, Rule 1(r) against all orders under Rules 1 and 2 of Order 39, whether granting or refusing temporary injunctions. Even when an application for temporary injunction is refused after hearing both the parties under Rule 1 or Rule 2 of Order 39, an appeal is always available under Order 43, Rule 1(r), whether or not the same was preceded by an ad interim order of injunction. Pre-trial injunction may also be a no less harsh remedy than a pre-trial attachment and if there should be no appeal against an order refusing pre-trial attachment unless the same was preceded by an ad interim attachment, then it may not be easy to understand as to why an appeal should be available against an order refusing pre-trial injunction, even though it was not preceded by an ad interim order of injunction. But law is not always a devoted follower of logic.
6. 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 1961 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. Rebello v. 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, . The present revisional application, therefore, is maintainable as no appeal stands in the way.
7. But we are afraid that it would not be possible to invoke and exercise our revisional jurisdiction in this case as we find no jurisdictional question to be involved at all. It might sound to be platitudinous, but the position in law is firmly well-settled that a High Court may intervene in revision only when there is jurisdictional error, a non-exercise or illegal exercise of jurisdiction where there is one, or an illegal assumption of jurisdiction where there is none. The trial Judge having perfect jurisdiction under the law to grant or to refuse to grant a pre-trial attachment, the case in hand is obviously not one of illegal assumption of jurisdiction. And the trial Judge having refused to direct attachment on a consideration of the affidavits of the parties and on the finding that no case therefore was made out on the materials on record, the case in hand is not obviously one of non-exercise of jurisdiction. All that the trial Judge has held is that the allegations made by the plaintiff are “vague” and are “insufficient” to show “that the defendant is about to remove property” and that too with intent to obstruct or delay the exercise of any decree that may be passed against him. This is patently a finding of fact and even assuming that the same is erroneous, or even grossly erroneous, a Court cannot be regarded to have acted illegally or with material irregularity within the meaning of Section 115(1)(c) of the Code of Civil Procedure for erroneous appreciation of the materials on record and the resultant erroneous conclusion. As has been pointed out by one of us in a rather recent Division Bench
decision of this Court in Arundhati v. Daryapani, (1986) 90 Cal WN 1028, on a consideration of the relevant decisions of our past and present apex Courts spreading over more than a century, the position in law is firmly established that the mere fact that the decision is erroneous in fact or in law does not amount to illegal or irregular exercise of jurisdiction and that while exercising the revisional jurisdiction it is not competent for the High Court to correct errors of fact or law, however gross or manifest, unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. It has been pointed out further that the expression “illegally” is to be taken to mean “in breach of some provisions of law” and the expression “with material irregularity” to mean “by committing some error of procedure in the course of trial which is material in that it may have affected the ultimate decision”. And if there is no such “illegality” or “material irregularity”, then the High Court has no power to interfere even though it differs, however profoundly, from the conclusions from the subordinate Court upon question of fact or law. We have not been able to find out any such “illegality” or “material irregularity” even remotely affecting the impugned order, notwithstanding the strenuous argument assailing the order advanced by Mr. Banerjee, the learned Counsel for the petitioner.
8. We accordingly dismiss the revision. No cost.
Ajit Kumar Nayak, J.
9. I agree.