G.D. Dube, J. - (1.) IN the two first appeal from order Nos. 136 of 1991 Union Bank of India v. M/s. Aurora Industrial Corporation and 5 others and 146 of 1991, Union Bank of India v. Aurora Industrial Corporation and 3 others a common question of law arises. The facts as far as the question of law is concerned are common. Hence we are answering the preliminary question of (sic) in these two appeals by this common judgment. In these appeals arising from orders of 1st Additional Civil Judge, Gorakhpur rejecting an application under Order 33 Rule 5 of the Code of Civil Procedure (hereinafter Code for brief) question arises about maintainability of appeal. The appeals are purported to have been filed under Order 43 Rule 1(q) of the Code. This Rule 1(q) of Order 43 of the Code makes only an order passed under Rules 2, 3 and 6 of Order 43 appealable. It has been urged from the side of the appellants that the impugned order falls under Rule 6 of Order 38, whereas learned counsel for respondent contended that the order appealed against comes under Rule 5 of Order 38 of the Code, Hence no appeal lies.
(2.) THE facts from which the above controversy arises are very brief. The appeal No. 136 of 1991 arises from suit No. 51 of 1988 and No. 146 of 1991 from suit No. 52 of 1988. Both suits were instituted against respective defendants -respondents on 20 -1 -1989 for realisation of money. It was alleged in these applications that the defendants were intending to sell their property. Application under Order 38 Rule 5 of the Code was moved in both the suits on 8 -3 -1990. Since the defendant -respondents were represented and had put in appearance, objections were invited from them; The respondents filed their objection on 23 -3 -1990. The respondents denied the allegation of plaintiff in both the suits that they are intending to transfer their property with a view to obstruct execution of a decree which may be passed against them. The lower court came to the conclusion that plaintiff -appellant failed to show that respondents are transferring their property with an intention to obstruct the execution of any decree which may be passed against them. Hence the lower court rejected the applications on 19 -9 -1990. Aggrieved by these orders the Bank has preferred these two appeals.
(3.) THE preliminary objection of learned counsel for respondents about the maintainability of appeal is founded on this fact that in the present cases no conditional orders of attachment were passed by the lower court Therefore, the order of lower court rejecting the application under Order 38 Rule 5 of the Code could not be considered as order under Rule 6(2) of Order 38 of the Code. It is an order under Rule 5 of Order 38 and therefore, is not at all appealable.;