1991 Supreme(AP) 9

Andhra Pradesh High Court
Judges : J.ESWARA PRASAD, M.JAGANADHA RAO
Yenamala Chandra Reddy - Appellant
Versus
Nuvvula Chandramonli Naidu - Respondent
Decided On : 01-21-91

An order of conditional attachment under Order XXXVIII Rule 5 (3) CPC can be passed without issuing a prior notice as mentioned in clause (b) of Order XXXVIII Rule 5 (1) CPC, and sub-rule (4) of Order XXXVIII Rule 5 CPC does not apply to conditional attachments.

Headnote:

ATTACHMENT - CONDITIONAL ATTACHMENT - ORDER XXXVIII RULE 5 (3) CPC - INTERPRETATION - DISTINCTION BETWEEN ATTACHMENT AND CONDITIONAL ATTACHMENT - PROCEDURE - NOTICE - SUB-RULE (4) OF ORDER XXXVIII RULE 5 CPC - SCOPE AND APPLICABILITY - COURT'S POWER TO ORDER CONDITIONAL ATTACHMENT WITHOUT PRIOR NOTICE - WITHDRAWAL OF CONDITIONAL ATTACHMENT - ORDER XXXVIII RULE 6 (2) CPC - RELEVANCE - FORM NO. 5 OF APPENDIX-F OF THE FIRST SCHEDULE TO THE CODE OF CIVIL PROCEDURE - SIGNIFICANCE.

Fact of the Case:

The plaintiff filed a suit for recovery of a sum of Rs. 2,10,300/- with interest from the 1st defendant, a contractor. The plaintiff filed an interlocutory application for directing attachment of the properties mentioned in the application and sought for the grant of "conditional interim attachment without notice to the respondent" and also the issue of a prohibitory order with notice to the garnishee not to encash the schedule items payable to the creditor, the 1st defendant. The schedule to the interlocutory application referred to the compensation amount awarded in favour of the 1st defendant for acquisition of his land by the Land Acquisition Officer, Nellore, and the bill for Rs. 1 lakh given by the concerned Executive Engineer of the Tirumala Tirupathi Devasthanams in respect of certain works for which the 1st defendant was the contractor. The learned Sub-Judge, Gudur passed an order directing notice to the respondent and the garnishee. The plaintiff preferred a revision petition contending that the learned Sub-Judge erred in merely granting notice and that this amounts to non-exercise of jurisdiction.

Finding of the Court:

The court held that Order XXXVIII Rule 5 (3) CPC permits conditional attachment without notice and without following the procedure laid down in clause (b) of Order XXXVIII R. 5 (1). The court further held that sub-rule (4) of Order XXXVIII R. 5 was introduced for the first time by the Amending Act of 1976 with effect from 1-2-1977. That was intended to resolve the conflict of opinion of various High Courts as to whether the contravention of the procedure indicated in clause (b) of Order XXXVIII R. 5 (1) made the order void or voidable. The court also held that an order of conditional attachment passed under Order XXXVIII, Rule 5 (3) C. P. C. does not become void for not following the procedure under Order XXXVIII, Rule 5 (1) and that Order XXXVIII, Rule 4, introduced in 1976, has nothing to do with a conditional attachment.

Issues: 1. Whether an order of conditional attachment under Order XXXVIII Rule 5 (3) CPC can be passed without issuing a prior notice as mentioned in clause (b) of Order XXXVIII Rule 5 (1) CPC? 2. Whether sub-rule (4) of Order XXXVIII Rule 5 CPC applies to conditional attachments?

Ratio Decidendi: 1. The court interpreted the provisions of Order XXXVIII Rules 5 and 6 and Form No. 5 of Appendix-F of the First Schedule to the Code of Civil Procedure to conclude that the legislature intended to make a distinction between an order of "attachment" and an order of "conditional attachment". 2. The court held that a conditional attachment is an order that is passed simultaneously with the order directing the defendant to show cause, and that such an order can be passed without issuing a prior notice to the defendant. 3. The court further held that sub-rule (4) of Order XXXVIII Rule 5 CPC, which declares an attachment made without complying with the procedure specified in Rule 5 to be void, does not apply to conditional attachments.

Final Decision: The court held that the trial court did not err in passing an order of conditional attachment without issuing a prior notice to the defendant. The court also directed the defendant to furnish security or bank guarantee to the satisfaction of the trial court for the suit sum and costs.