Attachment before judgment - Conditions precedent - Satisfaction of court - Affidavit - Enquiry - Order based on whims and fancies - Void.

SEETHARAM REDDY, J.

( 1 ) THIS Civil Miscellaneous Appeal is preferred against an order of the 5th Additional Judge, City Civil Court , Hyderabad, made on 31-7-79 in I. A. No. 1050 of 1978 in O. S. No. 1059 of 1978, filed by the defendants 1 and 2, the appellants herein, against the respondents 1 and 2 who are the plaintiff and the 3rd defendant respectively.

( 2 ) THE brief facts that led to the filing of I. A No. 1050 of 1978 are: the 1st respondent (plaintiff-firm) filed the suit against the appellant and the 2nd respondent for recovery of a sum of Rs. 1,23, 400-88p. with interest at 12 per cent per annum on the ground that the plaintiff -firm obtained cash credit facility for Rs. 3,00,000. 00 from their bankers to accommodate one late Y. C. Reddi for his business in stainless steel. A cheque was issued in favour of M/s. Vijaya Traders, the sole proprietary concern of Y. C. Reddi, and the same was encashed. Y. C. Reddi, pledged stainless steel material with the plaintiff-firm on 7-5-1976; and the plaintiff-firm in turn , pledged them with their bankers on cash credit loan account and some amount were paid thereafter by the said Y. C. Reddi, during his lifetime and they have yet to recover a sum of Rs. 1,23,400-88 p. Y. C. Reddi died on 2-3-1978. After his death, they demanded the appellants who are said to be the wives of Y. C. Reddi. ; but there was no response. The plaintiff further alleged that the 3rd defendant, by his letter dated 4-10-1978, informed the plaintiff-firm that Y. C. Reddi executed a will on 22-1-1978 at Madras appointing him as the sole executor to discharge the liability and pay the residue , if any, to his wives and that he filed an application for probate of will of late Y. C. Reddi in the Madras High Court and finally he requested the plaintiff not to rush to the court.

( 3 ) ALONG with the suit, the plaintiff filed I. A. Nos. 1050 and 1051 of 1978. The former is for attachment before judgment of the movable property, namely , water meter machinery mentioned in the schedule to the petition, located in a factory at Saroornagar, Hyderabad, owned by Y. C. Reddy and the latter is for the appointment of an advocate commissioner to take an inventory of the said machinery and take possession of the same. The court ordered notice in I. A. No. 1050 of 1978, and appointed an advocate. Commissioner in I. A. No. 1051 of 1978, on 29-12-1978 to take inventory of the machinery and to take possession of the same. Pursuant to the said order, the advocate-Commissioner took possession of the factory and locked the same. Aggrieved by the same, the appellants filed C. R. P. No. 43 of 1979 in this Court which , by its order dated 3-1-1979 in C. M. P. No. 73 of 1979 , suspended the said order in the following terms:"there shall be a suspension of the order of the lower Court subject to the following conditions: (i) That the Commissioner appointed to take inventory will complete his job by taking full inventory and the petitioner undertakes to give all help and co-operation. (ii) The petitioner will be permitted to run his factory. (iii) The petitioner undertakes not to alienate any part of the machinery of the factory". Accordingly, the appellants have been running the factory.

( 4 ) IN so far as I. A. N. 1505 of 1978 is concerned, notices were issued in printed forms. The heading of the notice is: "notice to show cause (General From)". The body of the notice reads:"whereas the above named petitioner has made application to this Court under order 38, Rule 5 and section 151, Civil P. C. you are hereby warned to appear in this Court in person or by an advocate duly instructed on the 30th Dec. 1974 at 11 a. m. to show cause against the application failing wherein the said application will be heard and determined ex parte. "in the notice issued to the 1st defendant, in addition to what has been extracted above, the words "to furnish security" appear after "section 151, Civil P. C. " Along with the said notices, two affidavits o

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