S. S. M. QUADRI, J.

( 1 ) THE 1st defendent in O. S. No. 31 of 1989 on the file of the Subordinate judge, Gudur (O. S. No. 6/89 on the file of the Vacation Ju ige, Nellore) is revision petitioner. The first respondent-plaintiff filed the suit for recovery of money. In the said suit she filed I. A. No. 230/89 before the Vacation judge, Nellore for attachment of the amount payable to the defendant No. 1 by the Superintending Engineer (R andb. Circle Office, Seethammadhara, visakhapatnam) the 2nd respondent herein. On 2-5-89, the Vacation Civil judge ordered attachment of the amount lying in deposit with the 2nd respondent. The validity of that order is assailed in this revision petition.

( 2 ) SRI M. V. Ramana Reddy, the learned counsel for the petitioner, submits that the order under revision was passed in violation of the provisions of Order 38 Rule 5 CPC. , and, therefore, the order suffers from the vice of material irregularity in exercising the jurisdiction by the Vacation civil Judge. so it is liable to be set aside.

( 3 ) SRI S. R. Ashok, the learned counsel for the 1st respondent, submits that had the notice been given under Sub-rule (1) of Rule 5 of Order 38, the petitioner would have withdrawn the amount and the purpose of attachment would have been frustrated, so in the circumstances of the case, the vacation Judge was justified in passing the order in question.

( 4 ) THE short question that arises for consideration in this case, is whether the order under revision warrants interference under Section 115 of the Code of Civil Procedure.

( 5 ) INASMUCH as the order in question purports to have been passed under Order 38 Rule 5 CPC, it would be appropriate to notice the provision of the said rule.

( 6 ) RULE 5 of Order 38 CPC. reads as follows :"5. Where defendant may be called upon to furnish security for production of property : (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 not 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 direct the conditional attachment of the whole or any portion of the property so specified. (4) If an order of attachment is made without complying with the provisions of sub-rule (1) of this Rule, such attachment shall be void. "

( 7 ) FROM a reading of the rule extracted above, it is clear that Rule 5 prescribes the circumstances which should be satisfied and the procedure that should be followed before calling upon the defendant to furnish security for production of property or ordering attachment of property. Sub-Rule (1) provides that the Court may direct the defendant (i) either to furnish security as may be specified by it to produce and place at the disposal of the court, when required, the property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or (ii) to appear and show cause why he should not furnish security. Before issuing such a direction, the Court has to be satified by affidavit or otherwise that the defendant (a) is about to dispose of the whole or any part of his property ; (b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court and (c) his intentio

Click Here to Read the rest of this document