Arijit Pasayat, C.J.

Entertaining doubt about correctness of view/conclusions arrived at by a Division Bench in Mohammed Hariss v. Fathima (1993(1) KLT 558) as regards the scope of O.38 R.5 of the Code of Civil Procedure, 1908 (in short 'C.P.C.') vis-a-vis 0.21 R.46 thereof in a given factual background, learned Single Judge has made reference to larger Bench.

2. A brief reference to the factual aspects would suffice. M/s. Harrisons Malayalam Ltd. (hereinafter referred to as the 'plaintiff') had filed O.S. No. 713 of 1998 before the Subordinate Judge's Court, Ernakulam. Plaintiff filed the suit for recovery of money from M/s. Hindustan Steel Works Construction Ltd. (hereinafter referred to as 'defendant'). On an application, I.A. No. 6424 of 1998, filed by the plaintiff under O.38 R.5 CPC, O.21 R.46 r/w. S.151 CPC there was an order of attachment of Rs. 7 Crores from the Greater Cochin Development Authority (hereinafter referred to as the garnishee). Learned Subordinate judge passed an order on 23.12.1998 prohibiting the garnishee from making any payment to the defendant. Notwithstanding this order payment of Rs. 50 lakhs was made by the garnishee to the defendant. LA. No. 1708 of 1999 was filed by the plaintiff for a direction to the garnishee, in terms of O. 21, R.46, to deposit Rs. 50 lakhs in Court. The garnishee was required to deposit in Court Rs. 50 lakhs or such other amounts they have paid to the defendant after the order of attachment was served on it.

3. The garnishee admitted that after the order of attachment, the defendant received Rs. 50 lakhs from it. In the counter affidavit filed, garnishee raised several contentions. Firstly it was submitted that the order of attachment received by the garnishee did not reach the finance department and money was not released to the defendant to the extent of Rs. 50 lakhs in April, 1999. The defendant suppressed the order of attachment from the garnishee. When the garnishee noticed the mistake, it requested the defendant to pay back the amount. On receipt of the letter the defendant paid the plaintiff Rs. 21,81,000/-. The garnishee was persuading the defendant to pay the balance amount. Therefore the request was to direct the defendant to deposit the balance amount of Rs. 28,19,000/- in Court. The learned First Additional Sub judge, before whom the suit is pending, passed an order directing the garnishee to deposit in Court Rs. 50 lakhs out of Rs. 7 crores attached, within 7 days. The order was challenged in C.R.P. No. 1566 of 1999. When the matter was taken up, the learned Single Judge entertained doubt about the correctness of finding of the Division Bench in Mohammed Hariss's case (supra), which held that the attachment order in cases of attachment before judgment has to be in Form No. 5 (Appendix-F) and otherwise invalidity is attached especially when under 0.38 R.7 the attachment even in cases where it is ordered before judgment has to be considered as one for attachment in execution. Referring to proviso to 0.38 R.11 A, it was concluded that the provisions under 0.21 will apply to 0.38 also. It was felt that as there is separate procedure prescribed for issuing orders to garnishees under 0.21 R.46 C.P.C., the position stated by the Division Bench needs a fresh look.

4. We shall first deal with correctness of view expressed in Mohammed Hariss 's case. In the factual position of that case it was observed that merely passing an order in terms of sub-r.(1) of R.5,0.38 CPC without serving it on the defendant cannot be treated as substantial compliance with the statutory requirement. It was further observed that Form No. 5 has to be used when order of attachment is passed. Reference was made to an earlier Full Bench decision of this Court in Madhavan v. State (AIR 1966 Ker. 212), where it was held that noncompliance with the provisions of 0.38 R.5(1) CPC only makes the order voidable and until that is done, it is operative and cannot be ignored or collaterally attacke