The main legal point established is that the defendant has the right to appear and show cause against a conditional order of attachment before judgment, as provided in the Civil Procedure Code.

Bhat, J

Respondent herein filed a suit against the appellant herein for recovery of Rs. 3,45,650/-with costs. He also filed I.A. 536/1986 under Rule 5 Order XXXVIII C.P.C. seeking attachment before judgment of the movable articles described in the schedule and also seeking a conditional order of attachment. Learned Subordinate Judge ordered notice directing the appellant to show cause why he should not be called upon to furnish security and also passed an order of conditional attachment. It appears, certain articles were, as a matter of fact attached and removed from that custody of the appellant. At that stage, appellant appeared before the learned Subordinate Judge and filed objections 10 I.A. 536/1986. Learned Subordinate Judge allowed I.A. 536/1986 confirming the conditional order of attachment mainly on the ground that in a case where notice has been issued and a conditional order of attachment has been granted, the defendant has no right to appear and show cause against the relief claimed. It is this order which is now challenged.

2. We are not concerned with the merits of the contentious of either side since merits were not gone into by the learned Subordinate Judge. We are concerned only with the refusal of the learned Subordinate Judge to go into the contentions raised by the appellant against the conditional order of attachment and in response to the show cause notice.

3. Order XXXVIII C.P.C. deals with arrest and attachment before judgment. Rule 5 states, inter alia, that where, at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him, is about 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, the Court may 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, 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.

4. Sub-rule (3) states that the Court may also in the order direct the conditional attachment of the whole or any portion of the property so specified.

5. Rule 6 states that where the defendant fails to show cause why he should not furnish security, or fails to furnish the security required, within the time fixed by the Court, the Court may order that the property specified, or such portion thereof as appears sufficient of to satisfy any decree which may be passed in the suit, be attached. Sub-rule (2) states that where the defendant shows such cause or furnishes the required security and the property specified or any portion of it has been attached, the Court shall order the attachment to be withdrawn, or make such other order as it thinks fit. Rule 9 states that where an order is made for attachment before judgment, the Court shall order the attachment to be withdrawn, when the defendant furnishes the security required, together with security for the costs of the attachment or when the suit is dismissed.

6. Rule 5 intends to protect the interests of a plaintiff in a suit, where it is apprehended that the defendant with intent to obstruct or delay the execution of any future decree, seeks to shield his property from court process. In such a case the Court may direct the defendant to furnish security in such sum as may be specified, to produce the property or the value of the same, when required, or to appear and show cause why he should not furnish security. The order to be passed under Rule 5 gives an option to the defendant. The defendant may either furnish security to produce the property or value of the same, when required or to appear and show cause why he should not furnish security. If the d