( 1 ) IN this appeal the appellant has challenged the order dated 25/04/1985 passed by the learned 3rd Joint Civil Judge (S. D.) Jamnagar below Ex. 13 in Special Civil Suit No. 148/84. The learned counsel for the parties have argued all the questions of law arising in this appeal at considerable length and therefore at the request of the learned counsel of all the parties this appeal is treated as having been admitted and finally heard and disposed of by this judgment.

( 2 ) THE brief facts of the case may be stated here: the present appellant (original defendant No. 1) (hereafter-borrower) bad taken a loan from the respondent No. 1 bank for purchasing a truck bearing registration No. GTP-5580. The respondent Nos. 2 and 3 (hereafter-guarantors) stood sureties for the aforesaid loan. The borrower defaulted in payment instalments of the loan. The respondent bank further advanced loan to the present appellant for purchasing another truck No. GTP-5662. The borrower paid different sums towards second loan committing several defaults in the earlier loan for which the respondent Nos. 2 and 3 had stood sureties. The defendant bank filed suit against the present appellant and respondent Nos. 2 and 3 for the recovery of the remaining part of the loan amounting to Rs. 1 75 0 The present appellant is said to have negotiated sale of the second truck GTP-5662 to a third party for a sum of Rs. 3 25 0 The guarantors filed application Ex. 13 before the trial court stating that the borrower is planning to utilise the sale proceeds of the second truck for some other purpose leaving the outstanding debt on the earlier purchased truck (GTP-5580) unpaid. It was also stated that the borrower has no other property to pay the balance of the outstanding loan and hence the guarantors may have to pay that amount. Hence by the said application they prayed that both the trucks may be attached so as to prevent the borrower from disposing of the second truck (GTP-5662) until the outstanding amount on the first truck was paid out and the guarantors released from their liability. In reply to the said application of the guarantors the respondent bank requested the court to order attachment before judgment and the auction sale of the two trucks to pay the outstanding amounts of loan to the bank. The borrower did not file any reply to the said application.

( 3 ) THE learned trial judge by his order dated 25-4-1985 directed that the said two trucks be attached for the purpose of auction sale by the court so as to prevent the borrower from transferring the same in favour of anybody with a view to defeat the plaintiff banks dues and with a view to cause harm and financial loss to the guarantors. Against the said order of the trial court the debtor has come in appeal to this court challenging the legality and propriety of the aforesaid order.

( 4 ) MR. K. G. Vakharia the learned counsel for the appellant has urged that the impugned order is contrary to law and therefore unsustainable. According to him the learned trial Judge was not justified in ordering the attachment and sale of the two trucks belonging to the present appellant. Mr. Vakharia has urged that under Order 38 Rules sub-rule (1) of the Code of Civil Procedure it is imperative that the court must ask the defendant to furnish the security before the attachment order could be passed. He further states that in this case the court had not asked the defendant No. 1 to furnish security nor was he called upon to show cause why he should not be called upon to furnish security. Mr. Vakharias grievence is that the impugned order of attachment and sale has been passed behind the back of the defendant No. 1 and therefore it is void under sub-rule (4) of Rule 5.

( 5 ) MR. G. N. Desai the learned counsel for the respondent No-1 creditor bank has urged that on plain reading of Rule 5 sub-rule (1) it is discretionary for the court to direct the defendant No. 1 either to furnish security or to appear and