1. The challenge in the revision is with regard to the refusal of an attachment before judgment in respect of immovable property which had been sought for by the present petitioners, who are the plaintiffs in O.S No. 66/99 of the Sub Court, Hosdurg.

2. The suit was filed alleging that the 1st plaintiff is a Trader at Anakuzhi; that the other plaintiffs are his children and that the 1st defendant, who was on inimical terms with the 1st plaintiff for the past so many years, at about 7.30 p.m on 30-4-1999 lay in wait for the plaintiffs in a Jeep bearing No. KL13-A-2079 and launched a joint attack on the plaintiffs when they reached the scene of occurrence. It was alleged that lethal weapons like crow bar were used in the attack; that the 1st defendant had masked his face at the time; and that in the course of the attack a sum of Rs. 22,000/- which was in the bag carried by the 1st plaintiff was also snatched away. The plaintiff also revealed in the plaint that Crime No. 224/99 of Hosdrug Police Station had been initiated against the defendants for the offences under Sections 395 and 397 of the I.P.C The suit was laid for recovery of a sum of Rs. 3,00,000/- towards damages for the tortious acts of the defendants which necessitated expensive treatment for the plaintiffs.

3. The trial court found that there is no prima facie case established against the respondents and that the maintainability of the suit itself is doubtful, in view of the possibility of granting appropriate compensation under Section 357 of the Cr. P.C by the Criminal Court even if the petitioners could prove in the civil suit the involvement of the respondents in the tortious acts alleged in the plaint.

4. The learned counsel for the petitioners submitted that the impugned order is defective and that even if criminal case is pending, there is no bar for maintaining a suit of the present nature and that the refusal to grant the relief of attachment before judgment works out serious injustice.

5. According to the learned counsel for the respondents, the damages that is claimed in the suit could be granted by the Criminal Court as compensation invoking Section 357-of the Cr. P.C and in view of the admission regarding pendency of the criminal case, the suit itself is not maintainable. Yet another argument advanced is that the revision also is not maintainable for the reason that the impugned order comes within the purview of Order 38 Rules 6 of the Code of Civil Procedure in which case it becomes appealable and hence a revision would not lie. On the merits also the suit is challenged for the reason that the damages claimed have no connection with any act of the defendants. The learned counsel also pointed out that in any event, the property of the 1st defendant alone cannot be attached, when the relief claimed is against all the defendants.

6. The first question to be considered in the case is the maintainability of the revision itself. Since an order under Order 38 Rule 6 of the C.P.C is appealable in view of the specific provision in Order 43 Rule 1(q) of the Code of Civil Procedure, it has to be seen whether the impugned order is one passed under Order 38 Rule 6 of the C.P.C A perusal of the impugned order shows that the trial court had not issued any interim order of attachment earlier. In other words, the impugned order is not one as per which an earlier order passed under Order 38 Rule 5 of the C.P.C has been varied.

7. Order 38 Rule 5 of the C.P.C provides that if the court is satisfied with regard to the availability of the grounds mentioned therein, it may direct the defendant, within a time to be fixed by it, either to furnish security, for 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 same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish such security. Under Sub Rule 3 of Order 38 R. 5 the Court may also order conditional attachment of the whole or any portion of the property so specified.

8. Order 38 Rule 6 of the C.P.C provides as follows:—

“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”

9. A joint reading of the two provisions makes it clear that Order 38 Rule 6 would come into play only pursuant to the notice issued by the court under Rule 5. The order contemplated in Sub Rule 6 is one based on the consequences of the failure of the defendants to comply with the court's directives under Sub Rule 5. In the instant case, the court had not passed any order under Sub Rule 5 and hence the impugned order rejecting the prayer for attachment can be deemed to be an order under Sub Rule 5 only and not under Sub Rule 6. The position is also covered by the decision in Pareed Master v. Antony (1987 (2) K.L.T 649) wherein the following observations were made:—

“The impugned order shows that the learned Subordinate Judge has passed the order under Order 38 Rule 5 C.P.C Order 38 Rule 6 would apply only in a case where the court passes a conditional or interim attachment and issues notice to the defendant to show cause why he should not furnish security. If an order is passed under clause (1)(b) of Order 38 Rule 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 Order 38 Rule 6. From a reading of sub-rule (2) of Order 38 Rule 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 Order 38 Rule 6 is not intended to cover cases in which the defendant successfully shows cause against attachment before judgment in which no conditional attachment under Rule 5(3) had been made. Order 38 Rule 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 Order 38 Rule 5, which is not made appealable under Order 43 Rule 1(q).”

10. It follows from the above that the impugned order is not appealable and as such a revision, as presented in this Court, is clearly maintainable.

11. The legality, propriety and correctness of the impugned order may now be examined. The reasons given by the trial court for denying relief to the petitioner are the following:—

“(i) In view of the admission in the plaint that the 1st defendant was wearing a mask at the time of the alleged attack, it would not have been possible for the plaintiff to identify him and hence there is no prima facie case established against him or against the other defendants, who were mentioned in the F.I.R registered by the Police only as “7 persons who can be identified at sight”.

ii) The maintainability of the suit itself is doubtful in view of Section 357 of the Cr. P.C, even if the petitioners could prove the involvement of the respondents in the crime.”

12. Section 357 of the Cr. P.C afore-mentioned provides that when a Criminal Court imposes a sentence of fine or a sentence of which fine forms a part, the Court may, when passing the judgment, order the whole or any part of the fine recovered to be applied towards expenses incurred for the prosecution; for payment to any person of compensation for any loss or injury caused by the offence, when the compensation is in the opinion of the Court recoverable by such person in a Civil Court.

13. What is clear from Section 357 afore-mentioned is that the Criminal Court also could allow compensation for injury caused to a victim even where compensation for such acts are recoverable by a victim through a Civil Court. A plain reading of the section shows that the powers of the two courts are concurrent and not mutually exclusive albeit while granting relief one would certainly take note of the relief granted by the counter part and ensure that double benefit or double burden does not result to the affected parties through the orders of the Civil and Criminal Courts. No provision of law is brought to my notice which excludes the jurisdiction of a Civil Court to proceed with a suit for damages even where Section 357 might be invoked by a Criminal Court.

14. A reading of the plaint filed in the instant case, made available to me during hearing today, shows that the substance of the plaintiff's claim is that damages be allowed for the tortious acts of the defendants. According to me, notwithstanding the pendency of the criminal case registered against the respondents herein, such a suit would definitely be maintainable though damages, if any, to be allowed in the suit will have to be fixed with reference to the compensation if any allowed under Section 357 of the Cr. P.C by the Criminal Court. Likewise, in case the disposal of the civil suit precedes that of the criminal case, the decree passed in the case will have to be taken into account by the Criminal Court while considering the question of allowing compensation in exercise of powers under Section 357 afore-mentioned. Whatever that be, the pendency of the criminal case is not at all a bar for suspending proceedings in the civil suit or for denying interim reliefs therein in accordance with the provisions in the C.P.C and other civil laws.

15. It is true that there is an admission. On the part of the plaintiffs that the 1st defendant was wearing a mask at the time of attack. It is also a fact that the first informant could not name the 1st defendant or any of the other defendants as assailants at the time of giving information, which led to the registration of the criminal case. The incident allegedly took place at night and if the 1st defendant was wearing a mask, certainly the plaintiffs could not have normally identified him by sight at the time. That, however, does not mean that even with the evidence collected through investigation he cannot be identified or that the plaintiffs would not be justified in naming the assailants based on such subsequent information. What is clear from a reading of the plaint is that though the assailants could not be identified at the time of occurrence, the plaintiffs succeeded in identifying them subsequently and that is why they have been specifically arrayed as defendants in the present suit. According to me, the plaintiffs's case cannot be thrown overboard merely because the defendants, names were not revealed in the first information statement.

16. The learned counsel for the respondents submitted that any finding entered by this Court with regard to the maintainability of the suit or with regard to the availability of a prima facie case against the defendants would affect the decision in both cases and that hence this Court should refrain from considering the merits of the case. I do not find any merit in this contention also. The consideration of prima facie case in the present revision is intended for the sole purpose of arriving at a decision as to the justifiability of order of attachment before judgment. All other questions arising in both proceedings will have to be decided independently. Interests of the respondents can be safeguarded, if it is made clear that the findings in the present order would be confined to the scope of the present revision and shall not apply to the independent consideration of all questions including culpability of the accused and the justifiability of the compensation, if any, due to the complainant and other victims involved in the criminal case. The position that the Criminal Court trying Crime No. 224 of 1999 of Hosdurg Police Station shall not in any way be carried away by any of the observations contained in the present order is made clear. The civil suit also has to fall or stand based on the prospective evidence alone.

17. A perusal of the plaint shows that the plaintiffs had produced before Court not only a copy of the F.I.R in the aforesaid crime and the records of the Police based thereon; but also as many as 24 medical bills with regard to the treatment that the plaintiffs had to undergo in connection with the attack allegedly launched by the defendants. There cannot be any doubt that the plaintiffs have established a prima facie case with regard to the damages mentioned in the plaint. It cannot also be said that the motion for attachment before judgment is not based on sufficient averments. In the affidavit supporting the petition the 1st plaintiff had made it clear that he had obtained information relating to the proposal of the 1st defendant to dispose of his immovable property from one Thomas and that if the sale is allowed to take place, the plaintiffs would be unable to recover the prospective decree amount, in so far as none of the respondents have any other property movable or immovable. In view of these averments, I am of the view that the plaintiffs have made out sufficient justification for getting an order of attachment before judgment. Since the decree sought for is joint and several, it is open to the plaintiffs to move for attachment of the properties of any one or more of the defendants.

18. Viewed from the above standpoint, the motion for attachment before judgment against the properties of the 1st defendant does not suffer from any defect and the trial court has clearly erred in denying the relief to the plaintiffs.

19. In the result, the revision is allowed; the impugned order is set aside and I.A No. 740/99 filed by the plaintiffs seeking attachment before judgment would stand allowed.

20. The trial court will implement the attachment forthwith. It is made clear that the observations contained in the present order will not stand in the way of independent consideration of all questions arising in the suit based on the prospective evidence.