W. Pappammal vs I. Chidambaram

In this civil revision petition at the instance of the defendant in 0. S. No. 426 -of 1.982, U Additional City Civil Cost, Madras, the principal

question that arises for consideration is, whether the order of attachment passed by the court below accords with the provisions of 0. 38, R. 5, C.

P. C., as amended by Act 104 of 1976 and is valid or is vitiated and void.

The suit in 0. S. 4N of 1982 was laid by the respondent here against the petitioner for the recovery of a sum of Rs. 66,466.15 with further

interest and other incidental relief . In 1. A. No. 12M of 082 filed on 22-1-IM, under 0. 38, R. 5, C. P. C., the respondent prayed for an order of

attachment before judgment of two items of immovable We properties belonging to the petitioner. In the affidavit in support of that application, the

respondent after referring to the circumstances leading up to the institution of The suit for the recovery of the amounts from the petitioner, stated

that the petitioner is in highly involved circumstances and that she has no other property except the two items of immovable properties and further

that with a view to defeat and delay himself and other creditors, the petitioner was a plaintiff to dispose -of the properties, which, if not prevented,

would result in senous prejudice to the respondent as well as other creditors- The respondent also stated that the petitioner had declared her

inability to pay the amount as she vow in financially help; circumstances and that, therefore, an order of interim attachment of the unmovable

properties should also be passed. On 25-1-1982, an order was passed by the court in the following terms :-

Heard. Interim attachment and notice 10-2-1982.

Even on 8-2-1982, the petitioner filed a counter-affidavit in opposition to the application for attachment before judgment made by the respondent

and on le-24982, it was reported to court that notice has been served on the petitioner and the property had also been attached and the filing of

the counter by the petitioner was also noted by the court and the matter was posted for enquiry to 262-1982, from which date it was adjourned to

several other dates till it was finally posted to 1-4-1982. Meanwhile, the readent took out another application in I. A. 1448 of 1992 to amend 1.

A. 1209 01 1982, by including two more items of properties for attachment Wore judgment.

That application as well as I. A. 1209 of 198,2 were dealt with together and the 11 Additional Judge, City Civil Court, Madras, was of the view

that as the respondent had the tyenefit of a charge over a picture and had not in any manner relinquished such a right, the property already attached

in 1. A. 1209 of 1982 would suffice to meet the suit claim and, therefore, the application was amendment filed by the respondent in I. A. 1448 of

1982 was dismissed as unnecessary. Dealing with 1. A. 1209 of 1982, the learned 11 Additional Judge, City Civil Court, Madras, proceeded to

dispose of that application in the following manner :

The only objection raised by the respondent (petitioner in the civil revision Petition) (words in brackets mine) is that she was not given show cause

notice bef4Dre attachment is ordered to furnish sectftity. In every order of attachment before judgment, if security is furnished, the attachment is

not effected. Hence 1. A. 120 of 1982, is allowed and the attachment already effected is made absolute.

It is the correctness of this order that is challenged in the above civil revision petition.

The principal contention of the learned counsel for the petitioner is that there has been no compliance at ail with the procedural requirements

under 0. 38, R, 5 (1), C. P. C. and that, therefore, the attachment made ;s void in view of 0. 38, R. 5 (4), C. P. C. Further, the learned counsel

also contended that there is no power in the court to order a conditional attachment without giving a notice to the defendant and giving an

opportunity to the defendant to furnish security or to place at the disposal of the court such property or portion thereof as may be specified in the

order and sufficient to satisfy the decree, or to appear and show cause why the defendant should not furnish security. On the other hand, the

learned counsel for the respondent submitted that the requirements of 0. 38. R. 5, (1) C; P. C., have been satisfied in that a notice in the usual form

had been given to the petitioner and that she had appeared and shown cause against the attachment before judgment and, therefore, she cannot

complain of any prejudice by the course adopted by the court. Further, it was contended that in an application under 0. 38, R. 5 (1), C. P. C., the

court had always the power to pass an order for conditional attachment as provided under 0. 38, R. 5 (3), C. P. C. Stress was laid by the learned

counsel upon the need for the court exercising its powers of conditional attachment under 0. 38, R. 5 (3), C. P. C., in appropriate cases; as

otherwise, it may happen that by the time the notice is served on the defendant and he or she appears before court to show cause, he or she might

have disposed of all or substantially all his or her properties and that would render the plaintiff absolutely helpless and without any remedy

whatever when a decree is obtained and, therefore, to avoid that, the powers conferred upon court under 0. 38, R. 5 (3), C. P. C., should be

exercised - by passing orders for conditional attachment and that the rule does not preclude the court from exercising such a power along with an

order for notice to the defendant calling upon him or her to comply with the ''requirements of 0. 38, R. 5 (1), C. P. C. In other words, the learned

counsel submitted that the power of conditional attachment under 0. 38, R.'' 5 (3), C. P. C., is always available in the court to be exercised at the

time of the issue of a notice to the defendant under 0. 38, R. 5 (1), C. P. C., depending. upon the facts as well as the circumstances of the case.

Before embarking upon a consideration of these submissions, it is necessary to bear in mind the relevant provisions of the Civil P. C. ag well as

the changes made therein by Act 104 of 1976. Section 94(b), C. P. C., is the substantive statutory provision conferring power on the court to

direct the defendant to furnish security, to produce any property belonging to him or her and to place the same at the disposal of the court or order

attachment of any property. Such a power has been conferred on the court in order to prevent the ends of justice being defeated. Prior to the

changes '' introduced by Act 104 of 1976, 0. 38, R. 5, C. P. C., read as under-

(1) Where, at any stage of a suit, the court is satisfied, by affidavit or otherwise that the defendant. with intent to obstruct or delay the execution of

any decree that may be passed against him-

(a) is about to dispose of the whole or any part of his property, or

(b)is about to remove the whole or any part of his property from the local limits of the jurisdiction of the court, the court may direct the defendant,

within a time to be fixed, by it, either to furnish security. in 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 to furnish security.

(2) The plaintiff shall, unless the court otherwise directs, specify the property required to be attached and the estimated value thereof.

(3) The Court may also in the order 41irect the conditional attachment of the whole or any portion of the property so specified.

The Law Commission, in its fifty fourth report (pages 271-2T2) with a view to set at rest a judicial divergence whether the non-fulfilment of the

requirements of 0. 38, R. 5 (1), C. P. C., would have the effect of making the order passed ultra vires and void and the consequent attachment a

nullity or'' whether if such an order is passed, it would be one which totally lacks jurisdiction or whether the attachment, though erroneous and

liable to be set aside in appropriate proceedings, is one Without, jurisdiction and not a nullity, noticed the ratio of the conflicting decisions in

Madhavan Pillai Somanatha Pillai and Another Vs. State of Kerala and Others, , Ittavira Mathai Vs. Varkey Varkey and Another, , Abdul Karim

v. Nur Mohammed, AIR 1920 Cal 526; Dular Singh Vs. Ram Chander and Another, and Sri Krishna Gupta and Another Vs. Shri Ram Babu and

Others, , and recommend ed a clarification in the nature of a subrule to 0. 38, R. 5, C. P. C., which was characterised by the Law Commission as

a badly needed one, to the effect that an attachment which does not comply with the requirements of 0. 38, R, 5 (1), C. P. C., and is effected

without the notice as required by the law being given to the defendant resulting in a denial of the privilege of staying off the attachment by the offer

of security, should be declared void. Consequent to this recommendation of the Law Com mission, by S. 85 of Act 104 of 1976, 0. 38, R. 5 (4),

C. P. C., was inserted with effect from 1-2-1977. The Statement of Objects and Reasons for the introduction of this sub-sec. (4) (vide the

Gazette of India, Extraordinary Part II, S. 2 dated 8-4-1974) reads as under.

There is divergence of opinion between the High Court as to whether an attachment made before judgment without complying with the procedure

specified in R. 5 is a nullity or is voidable. Rule 5 is intended for the protection of the person whose property is sought to be attached before

judgment. If he does not receive the notice required by law, and is thus denied the opportunity of preventing the attachment by the after of security

an injustice would accrue to him. Rule 5 ii, therefore, being amended to clarify that, where the attachment is made without complying with the

procedure laid down in R. 5, such attachment shall be void.

In the Bill, the provision (0. 38, R. 5 (4)) stood as under :

Any attachment made under this rule shall be void if it is not made in the manner specified in this rule"",

and finally, it emerged as follows-

if an order of attachment is made, without complying with the provisions of sub-rule (1) of this rule, such attachment shall be void.

Thus, the genesis of 0. 38, R. 5 (4), C. P. C., clearly demonstrates that it was a protective measure conceived in the interest of, a defendant and

intended to invalidate orders of attachment before judgment of his or her properties passed indiscriminately without notice, giving an opportunity to

stay off the attachment by the'' offer of security and without rigidly conforming to the requirements of 0. 38, R. 5 (1), C. P. C,

The essential requirements for invoking the power of court to effect an attachment under 0. 38, R. 5 (1), C.P.C., are that the Court must be

satisfied that the defendant is about to dispose of the whole or any part of his or her property, or the defendant is about to remove the whole or

any part of his or her property from the local limits of the jurisdiction of the court and the defendant is intending so to do with a view to cause

obstruction or delay the execution of any decree that may be pawed against him or her. it is incumbent that the plaintiff should state precisely the

grounds on which the belief or apprehension is entertained that the defendant is likely to dispose of or remove the property. t may even be

necessary in some cases to give the source of information and belief. A mere mechanical repetition of the provisions in the Code or the language

therein without any basic strata of truth underlying the allegation or vague and general allegations that the defendant is about to dispose of the

property or remove it beyond the jurisdiction of the court totally unsupported by particulars would not be sufficient compliance with the first part of

38, R. 5 (1), C. P. C.

In this case, no such particulars have been given and the order extracted earlier does not make out that the court bestowed any attention on

these aspects and was satisfied that the defendant was, with a view to defeat or cause obstruction or delay the execution of any decree, 4bout to

dispose of the whole or any of her property or even to remove the whole or any part of her property i1rom the local limits of the jurisdiction 0 the

court. Thus, the primordial re4juiremerrts of 0. 38, R. 5 (1); C. P. C., have not been satisfied.

In addition, there is also a further serious infirmity in the method and the manner in which the order of attachment had been passed by the court

be law. It is seen from the . notice served on ft petitioner that it is neither in conformity with the requirements of the 14ter part of 0. 38, R. 5 (1). C.

P. C., mw does it incorporate the contents of the notice in form No. 5 in Appendix F, which sets out as nearly as possible, the requirements under

38, IL 5 M C. P. C. from the notice served on the petitioner in this case, it is seen that thus petitioner had not been to furnish any security in

such sum as may be specified such portion the petitioner been acted to prod me and place at the court when required. the or the value of the

property ified,. or Such Part thereof as may sufficient to satisfy the decree . the petitioner has not been asked appear and show cause why She mot

furnish security. Thus. The notice issued to the petitioner in this is defective and does not conform to requirements of O. 38, R. 5 P C. there has

been a p. C. No doubt, petition of he property required to attached as well as the estimated 41 1 alive thereof and that would Only be compliance

with 0. 38, R 5 J C. P. C. in dealing with the applications for attachment before judgment, it is the, first and foremost duty of the court to be

satisfied from the particulars made available that the defendant is about to dispose of the whole or any part of his or her property or he or she is

about to remove the whole or any part of his or be, property from the local limits of the jurisdiction of the court with a view to delay or defeat or

obstruct the execution of any decree that may be passed against him or her. Therefore, the court should issue a notice in an -appropriate form

conforming to the requirements of 0. 38, ''R. 5 (1), C. P. C., and setting out the details. specified there under to the defendant, within a time to be

fixed by it, either calling upon him or her to furnish security in such stun as may be specified in the order or to produce and place at the disposal of

the court the property so specified in the application or the value f the -same, or even such portion thereof as may be sufficient to meet the decree,

or the notice may merely direct the defendant to appear and show cause why he or she should not furnish ''security for the arnoisit claimed in the

suit. No particular form of notice in use for this purpose has been brought to the notice of the court except the one in form No. 5 in Appendix F,

which is really addressed to the bailiff by the court. It is, therefore, imperative in view of 0. 38, R. 5 (4), C. P. C., that a notice on the lines of form

No. 5 in Appendix F with the necessary changes conforming to the requirements of 0. 38, R. 5 (1h C. P. C., should be prescribed for use. No

doubt, the use of the word ''may'' in the latter part of 0. 38, R. 5 (1), C. P. C., may at first blush make it appear that the issue of a notice in

compliance with the requirements of 0. 38, R. 5 (1), C. P. C., is discretionary, but at the same time. if it is not so done 0. 38, R~ 5 (4), C. P. C.,

declares such an attachment effected pursuant to such noncompliance as void. It is, therefore, essential to strictly conform to and comply with the

requirements of 0. 38, R. 5 (1). C. P. C., as otherwise, the order of attachment, if made and effected in violation of the requirements, would be of

no legal consequence, and worth only as a waste paper. Therefore, it becomes necessary that this matter also should engage the time and attention

of the Bales Committee for prescribing an appropriate form of notice especially in view of the amendment - introduced to 0, 38, R. 5, C. P. C., by

Act 104 of 1976.

Then occurs 0. 38, R. 5 (3), C. P. C, under which the court may consider directing a conditional attachment of the whole or any portion of the

property specified. This is quite reasonable and understandable as well. If 0. 36, R. 5 (1) and (3), C. P. C. is so construed as to mean that in all

cases, any order of attachment can be passed only after the defendant appears and furnishes security or otherwise makes arrangements to the

satisfaction of the court to meet the liability under the decree that may be eventually, passed, in response to a notice issued under 0. 38, R. 5 (1),

C. P. C. then that would result in the defendant being enabled to defeat the very power of the court to attach and also afford protection by the

process of attachment and even the very decree that may be eventually passed, by resorting to dilatory tactics resulting in his or her not receiving

the notice at all and by disposing of all his properties meanwhile. With a view to safeguard the interest of a plaintiff during the interregnum between

the filing of the application for an order of attachment and the service of notice On the defendant and his or her appearing in response to that with

reference to matters mentioned in the notice and showing cause, etc., the court is empowered under 0. 33, R. 5 (3), C. P. C., to. direct a

conditional attachment of the whole or any portion. of the property specified in the application for attachment. in this connection, the language of 0.

38, R, 5 (3), C. P. C., should also be borne in mind. The expression used therein is ''conditional attachment'' and that would mean that it is not an

absolute attachment but only in the nature of a dependent attachment or an attachment which would ensure and depend upon certain conditions,

namely, the defendant appearing and showing cause or not. in other such a conditional attachment would be operative during the interregnum or the

intervening time. H it were not so, the defendant can, meanwhile, part with all his or her valuable property, pending receipt of a notice under 0. A

R. 5 (1), C. P. C., and the court as well as the plaintiff, who way be successful eventually, would be left helpless high and dry and justice would be

defeated, to prevent which the power U attachment is conferred on courts under S. 94(b), C. P. C. to be exercised in conformity with and after

satisfying the requirements of 0. 38, R. 5 (1) and (3), C. P. C. That is why the power to direct a conditional attachment of the whole or any portion

of the property is also made available under 0. 38, R. 5 (3), C. P. C., which can be exercised by the court while passing an order under 0. 38, R.

5 (1)~ C. P. C. It is easy to perceive the spirit and the object behind 10. 38, R. 5 (1) and 0. 38, R. 5 (3), C. P. C. In an application for

attachment before judgment, the court, if satisfied that the requirements of O. 38, R. 5 (1), C. P. C., have been made out, may issue a notice to the

defendant in appropriate form conforming to the requirements of 0. 38, R. 1 5 (1), C. P. C., for all or any of the purposes mentioned therein and at

the same time direct a conditional attachment of the whole or any part of the property under 0. 38, R. 5 (3), C. P. C . U, in response to such a

notice, the defendant appears and shows cause, or otherwise satisfies the court, then the court may proceed to withdraw the attachment effected

earlier, under 0. 38, R. 6 (2), C. P. C. If, on the other hand, the defendant does not show cause why he or she should not furnish security or fails

to furnish security, then it will be open to the court to proceed under 0. 38 , R. 6 (1), C. P. C., and the court may order attachment of the property

specified in the application or such portion thereof, as appears sufficient to satisfy any decree that may be passed, in the suit, in the appropriate

form, namely, Form 7-A in Appendix F.

Thus, a careful consideration of the provisions of 0. 38, R. 5 (1) to (4) and 0. 38, R. 6 (1) and (2), C. P. C., clearly bring out the real intention

and purport as well as the scope of these provisions. The primary object of these provisions is no doubt to see that an order of attachment before

judgment is not secured indiscriminately on insufficient grounds, but at the same time, it is also manifest that the defendant must be, wherever

possible, given an opportunity to stay off an attachment of his or her property. The requirements under 0. 38. R. 5 (1), C. P. C., have been

designed only with this view and the notice issued there under has also to strictly conform to the requirements of O. 38, R. 5 (1), C. P. C. If the

attachment is effected without rigidly conforming to the requirements of 0. 38, R. 5 (1), G. P. C. and fulfilling them, 0. 38, R. 5 (4), C. P. C.,

declares such an attachment as void. In this case, as seen earlier, there has been no compliance either in letter or in spirit with the earlier part or

even the latter part of 0. 38, R. 5 (1), C. P. C., and under 0- 38, R. 5 (4), C. P. C., the attachment effected would be void and the order of the

court below cannot be sustained. Accordingly, it is set aside and the civil revision petition is allowed. There will be no order as to costs.

Before parting with this case, it is necessary to place on record the valuable assistance rendered to the court by Mr. V. C. Sri Kumar and Mr.

G. Subramaniam advocates, who appeared as amices curiae and place all the relevant materials before court.

Petition allowed.