The present petition under section 115, Civil Procedure Code is by the defendants.

2. The plaintiffs-opposite parties filed a Title Suit before the learned Assistant District Judge, Lakhimpur, North Lakhimpur praying for a decree for declaration of title and khas possession over the land described in the Schedule B to the plaint and also for mesne profit. In the plaint attachment before judgment of the paddy cultivated on the said land for this year was prayed for and it was also prayed that a receiver be appointed. Only one petition was filed alongwith the plaint under Order 38 Rule 5 and Order 40 Rule 1, Civil Procedure Code and the said petition is available at Annexure I to the present petition. In this petition, in para 7, it was stated that the defendants illegally raised paddy in the above land in spite of objection by the plaintiffs and accordingly, it was prayed that a receiver may be appointed for the purpose of reaping and harvesting the paddy and also for future cultivation. A joint prayer was also made for conditional attachment of the land pending final orders.

3. By order dated 5.11.90, the learned trial Court after hearing the learned counsel for the plaintiffs and after directing issuance of summons in respect of the main Title Suit ordered attachment of Schedule-B land and appointed one Abis Ali as receiver for harvesting the standing crops. The receiver was directed to dispose of the standing crops and to deposit the sale proceeds in the Court.

4. By order dated 8.11.90, vide Annexure II to the present petition, the above order was stayed as the defendants objected on the ground, inter alia, that the standing crops cannot be attached under Order 38 Rule 12. On the prayer of the plaintiffs the order was reviewed on 15.11.90 and the stay order was vacated. The Court further appointed another receiver in place of earlier receiver and the subsequent receiver was allowed to take steps with the help of police. Hence, the present petition.

5. I have heard Mr. P. G. Baruah learned counsel for the petitioners and Mr. S. Medhi, learned counsel appearing for the opposite-parties.

6. Rule 5 of Order 38 provides for attachment before judgment and Rule 6 of the said Order provides for final order to be passed by the Court in respect of attachment where no cause is shown or security not furnished. On plain reading of Rule 5, it is clear that an order can be passed at any stage if the Court is satisfied with intent to obstruct or delay the execution of any decree that may be passed against the defendant, he is trying to dispose of the whole or any part of his property, or is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court. This rule further provides that the Court has to 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 or value of the same or to appear and show cause as to why he should not furnish security. Sub-rule (3) of the said Rule 5 empowers the Court to direct conditional attachment of the whole or any portion of the property. Sub-rule (4), which was introduced by amendment in 1976 provides that if an order of attachment is made without complying with the provisions of sub-rule (I) of this Rule, such attachment shall be void. Rule 6 of the said Order 38, inter alia, provides that if the defendant fails to show cause, the Court may order attachment of the property specified or portion thereof as would appear efficient to satisfy the decree which may be passed. This rule further provides that where defendant shows cause or furnishes required security and the property specified or any portion of it has been attached, the Court stall order the attachment to be withdrawn or make such other order as it thinks fit.

7. The intention of Rule 5 Order 38 is clear and this provision has been made by the legislature to prevent a decree that may be passed being rendered infructuous. The jurisdictio

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