( 1 ) SHOULD the claim of appellant-bank to the property under order of attachment before judgment be accepted or not is the question posed before this Court in this appeal.

( 2 ) WITH a view to appreciating the aforesaid question raised before this Court a few material facts may be narrated at the outset. The appellant-bank a third party or a stranger to Special Civil Suit No. 134 of 1979 preferred an application Ex. 20 in the trial Court for vacating an order of attachment before judgment passed by the trial Court contending its claim over the property under attachment. The trial Court partly allowed the claim holding that the attachment on the machinery exceeding the amount of Rs. 1 50 0 shall be removed by modifying the ex-parte order granted below Ex. 5 in favour of the plaintiff respondent No. 1 herein in the aforesaid Special Civil Suit No. 134 of 1979.

( 3 ) THE original plaintiff filed the suit for the recovery of an amount of Rs. 1 40 0 with cost and interest against the defendants The plaintiff also submitted an application Ex. 5 along with the suit under Order 39 Rules 1 and 2 and also under Order 38 Rule 5 of the Civil Procedure Code (CPC ). The defendants were directed to furnish the security in respect of an amount of Rs. 1 50 0 and failing which the disputed property was ordered to be taken into attachment The order passed for attachment before judgment passed by the trial Court was sent to the District Judge Thana for execution and implementation which in turn was sent to the Civil Judge (J. D.) at Palghar. The bailiff of the Court reported that the premises were locked and the partners were residing outside and therefore an application to break open the lock and take the property under attachment after making inventory was preferred. The Security Officer of the appellant-bank resisted the Officer of the Court to break open the lock. However subsequently the locks were broken and the premises had been opened by the Nazir in presence of Panchas and Panchnama of the property was prepared which was ultimately sent to the trial Court with inventory. Thus the seals of the Court were affixed after locking the premises.

( 4 ) THE appellant bank appeared and claimed over the property under attachment inter alia contending that the original plaintiffs dues are only to the extent of Rs. 1 50 0 whereas the properties and the premises under the attachment were valued more than Rs. 10 lakhs and that the goods stored in the premises were hypothecated with the bank and the bank had the first charge on all the goods and raw materials lying in the premises situate at M. I. D. C. Industrial Area Tarapore. The bank also contended that the Delhi High Court in Civil Suit No. 39 of 1989 passed an order on 10. 2. 1980 restraining the defendant from disposing of the properties in question and appointing M/s Gandhi and Company as an auctioneer. Thus the appellant-bank contended that the attachment on the disputed property should be removed.

( 5 ) WHILE accepting the claim of the bank in part the trial Court Judge on 6. 5. 1981 was pleased to remove the attachment from the disputed property raw materials and remaining materials except to the tune of Rs. 1 50 0 Unfortunately the trial Court also did not record the charge or the interest of the bank on the machinery to the tune of Rs. 1 50 0 which was ordered to be kept under attachment while passing the impugned order.

( 6 ) THEREFORE the question which arises for consideration and adjudication at this juncture is as to whether the claim of the bank that the trial Court ought to have mentioned that the attachment is subject to the first charge of the appellant bank is justified in the circumstances of the case.

( 7 ) IN order to resolve this controversy it would be appropriate at this juncture first to refer to the relevant provisions of CPC relating to the attachment before judgment. Under Order 38 Rule 5 in a given circumstance where the defendant fails to furnish secur