Nidhi Clearing and Forwarding Company, per Managing Partner, Sri K. Ravi Kumar and Another vs Associated Cement Companies Ltd., per Manager (Marketing), R. Venkatramani

K.B. Siddappa, J.—This Revision is filed against the order passed in LA. No. 752 of 1993 in O.S. No. 132 of 1993 on the file of III Additional Judge, City Civil Court, Secunderabad. The above I.A., was filed under Order 38 Rule5 CPC for an order of attachment before Judgment against the immovable properties belonging to the respondents, situated at Tandur as mentioned in the petition Schedules I and II. The lower Court after considering the rival contentions, allowed the petition granting open attachment in respect of Item-I(b) and Items 2(i) to (iii) of the petition schedule property. Against the said order, the defendants filed this revision.

The learned Counsel appearing for the revision petitioners submitted that there is no truth in the allegation that the first defendant is disposing of the petition schedule lands to defeat the decree; the respondent-plaintiff did not reveal the source of information that first defendant is disposing of the property; the affidavit in support of the petition is vague. It is mentioned that one Mr. Ravikanth, who is the resident of Vidyanagar, Hyderabad has given information that the first petitioner is disposing of the property situated at Tandur. The learned Counsel submitted that how Mr. Ravikanth, who is resident of Vidyanagar, Hyderabad, came to know that the first petitioner is disposing of the property situated at Tandur, is not clear. Further, in the additional counter filed by the respondent-plaintiff he changed the version by stating that one Tailor of Tandur village has given information that the first petitioner is disposing of the properties, etc. The name of that Tailor is not given. Therefore, attachment before judgment on such vague allegations cannot be granted. He cited some authorities in support of his contention.

He further submitted that the procedure as contemplated under Order 38 Rule 5 is not followed by the lower Court. After filing the petition, after being satisfied that there is a case for the petitioner, the Court should issue notice in Form No.V (under Order 38 Rule 5) calling the respondent to furnish security in such sum as may be specified in the Order or require the respondent to produce the property itself or such portion thereof, as may be sufficient to satisfy the decree or issue show cause notice why he should not furnish security. This mandatory procedure is to be followed by virtue of sub-Rule (4) of Rule 5 Order 38 C.P.C. In this case, such a show cause notice is not issued. Only a general notice is issued. Therefore, the order is vitiated.

The learned Counsel appearing for the respondent submitted that the sale deeds filed by the petitioners herein themselves show that the first petitioner has alienated some of the suit schedule properties to third parties, that itself is a ground for granting attachment. However, he admitted that the notice in Form No.5 (under Or.38 R.5) is not given to furnish security, etc.

The question whether the respondent/plaintiff had information about the first petitioner herein selling away the properties etc., is concerned, it will be dealt with at appropriate stage. But, it is an admitted fact that the procedure as contemplated under Order 38 Rule 5(1) which is mandatory by virtue of sub-rule (4) is not followed in this case.

In Ratan Kumar Poddar and Others Vs. The Howrah Motor Co. Pvt. Ltd. and Others, the Calcutta High Court held that the jurisdiction is extraordinary and must be very sparingly exercised and with utmost caution, otherwise it would become the weapon of oppression. In Kamphi v. H.N. Bank Limited ( AIR 1929 Lah 376) it was held that before an order of attachment is issued the Court should issue notice to the opposite party. In Jatinder v. Gamgaram (AIR 1957 All. 71) it was held that valid attachment is made under Rule 6 after service of notice under Rule 5 specifying the terms in Form No.5 (Appendix-F) and not a general notice directing the defendant to show-cause.

Sub-rule (4) of Order 38 Rule 5 was inserted to lay emphasis that where the attachment is made without complying with the provisions of Rule 5 sub-rule (2), such attachment shall be void.

There was divergent judicial opinion on this point. In B. Prag Nath Vs. Mt. Indra Devi, it was held that such non-compliance with the provisions of Rule 5(i) amounted to an irregularity and the order passed by the Court below was both irregular and objectionable and that it does not necessarily follow that it was wholly ultra vires or void ab initio. In Badri Prasad Jhunjhunwalla Vs. Babulal Jhunjhunwalla and Others, the Calcutta High Court also held that an order for attachment before judgment passed without complying with Rules 5 and 6 is both irregular and objectionable. But such an order is not necessarily ultra vires or void ab initio. A Full Bench of the Kerala High Court in Madhavan Pillai Somanatha Pillai and Another Vs. State of Kerala and Others, , held that the attachment before judgment without complying with the provisions of Rule 5(1) is not without jurisdiction and that it cannot be attacked in collateral proceedings.

In subsequent Division Bench judgment of the Allahabad High Court in The Allahabad Bank Ltd. Vs. Rana Sheo Ambar Singh and Others, it was held "we agree with the submission of the learned Counsel for the judgment-debtors that the provisions of Rule 5, Order 38 were not complied with at all. The Court instead of issuing a notice in Form No.5 (Appendix-F) issued a notice in the general form, though making the attachment simultaneously. Rule 5, Order 38 clearly lays down that before an order of attachment can be made it is incumbent on the Court to direct the defendant to furnish security or to show cause why he should not furnish security.............An attachment which does not comply with the provision of Rule 5, Order 38 is illegal and ultra vires and, therefore, the decree-holder cannot claim any benefit under it."

It is to set at naught this divergent opinion. Sub-rule (4) of Rule 5 to Order 38 was inserted in the year 1976.

Thus it clear that the procedure laid down under Order 38 Rule 5(1) of the CPC is mandatory. Before issuing attachment notice it is incumbent on the Court to issue notice in Form No.5 (Appendix-F). In the case on hand such a course is not taken. A general notice was issued to the defendant. When this course is not followed, the consequent attachment is illegal.

Therefore, I direct the Lower Court to issue notice in Form No.5 (under Order 38 Rule 5, C.P.C.) calling for the petitioners herein to furnish security and I direct the lower Court to follow the procedure as contemplated under Order 38 Rule 5(1), C.P.C.

In the result, the revision is allowed with the above directions. The Lower Court is at liberty to pass appropriate order after following the said procedure. No costs.