Non-compliance with the provisions of Order 38, Rule 5, Civil Procedure Code, in passing an order under Rule 6 is an irregularity, but it can be waived by the party affected.

Sinha, J.

1. This appeal is by defendants to a suit for recovery of a certain sum of money on the basis of several handnotes. The handnotes were executed by defendant No. 1; defendant No. 2 is his brother and defendant No. 3 is his mother. After the institution of the suit, the plaintiff filed an application under Order 38, Rule 5, Order 39, Rule 1 and Sec.151, Civil P. C., and the prayer was that

"a rule be issued against the defendants to show cause why they would not furnish security to the extent of the plaintiffs principal claim and costs in all approximating to Rs. 17,000.00 and in the meantime they be restrained from disposing of the properties sought to be attached in any way and ad interim order for attachment before judgment be also passed and on the defendants failure to show cause or to furnish sufficient securities, the order aforesaid be made absolute....."

This application was made on 14-11-1949. Notices were issued to these defendants, and the order-sheet of 14-11-1949, records the following order :

"Plaintiff files a petition supported by an affidavit under Order 38, Rule 5 and Order 39, Rule 1, C. P. C., and under Sec.151, C.P.C., praying that a notice be issued against the defendants to show cause why they would not furnish security to the extent of principal claims and costs in all approximately to Rs. 17000.00 and in the meantime they may be restrained from disposing of the properties sought to be attached in any way and ad interim order for attachment before judgment be also passed and on failure to furnish sufficient "securities the order for attachment before judgment be made absolute as the defendants are negotiating with one Dhanulal of Mahalla Belwarganj P.S. Alamganj, Patna, to sell the properties with him. Order : Issue notice to show cause in one week of its receipt as to why attachment should not be issued. Also issue ad interim attachment."

Defendant No. 1 did not show cause, but defendants 2 and 3 filed an application showing cause to the effect that they were not liable because it was defendant No. 1 alone who had executed the handnotes in question and if anybody was liable on the allegations made in the plaint it was defendant No. 1 and nobody else. Then a reference was made in paragraph 6 of the objection petition to the petition filed by the plaintiff under Order 38, Rule 5, and it was submitted that the property of these defendants should not be attached as there was no prima facie case against these defendants; and the prayer was that the property of these defendants to the extent of their specific shares, namely, nine annas, be released from attachment. This application was made on 15-12-1949. On 21-12-1949, the order of attachment was made absolute against all these defendants until the final disposal of the suit.

2. These defendants 2 and 3 are the appellants before us, and the point taken is that, as there was no compliance with the provisions of Order 38, Rule 5, the final order under Rule 6 is illegal and liable to be set aside. Order 38, Rule 5, enjoins upon the Court to direct the defendant, within a time 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".

Clause (3) of Rule 5 empowers the Court to direct conditional attachment of the whole or any portion of the property so specified. It is therefore, clear that, under Rule 5, when an application is made for attachment before judgment, the Court has (1) either to direct furnishing of security within the time fixed by it or (2) to ask the defendant to appear and show cause why he should not furnish security. Rule 6 refers back to Rule 5 and says that" if the defendant fails to show cause why he should not furnish security, or fails to furnish the secu