The main legal point established in the judgment is that while an order may be erroneous and liable to be set aside, if it was made with jurisdiction, it is not a nullity and cannot be ignored or subjected to attack in collateral proceedings.

1. The question we are called upon to answer, and the bare facts necessary for the purpose, appear from the order of reference made by the division bench:

"The appellants in Criminal Appeal 173 of 1964 have been convicted of the offence of robbery of a bus K.L.K. 2036 after it had been attached and was in the custody of the Amin,

Pw.1, under an attachment warrant issued by the Subordinate Judge's Court, Kottayam. The main question for decision in this case would be whether non-compliance of the provisions in 0.38, R.5 has the effect of making the order ultra vires and void and the consequent attachment a nullity and whether in passing such an order there is total lack of jurisdiction. As the decisions are not uniform and as the question involved is of considerable importance, we refer the above said question for decision to a Full Bench."

Presumably the division bench is of the view that, if the order of attachment was void, there could be no actual possession, whether lawful or unlawful, with the Amin, or no dishonest intention on the part of the accused, so that the alleged removal of the bus would not amount to theft.

2. In a suit for money (O.S.107 of 1963 of the Sub Court, Kottayam), which he had brought against the 2nd accused in this case, the plaintiff applied under Order XXXVIII R.5 of the Civil Procedure Code for the attachment before judgment of a bus belonging to the 2nd accused. Attachment was ordered, but neither the application made for the purpose nor the order thereon is in evidence although one should have thought that those would be among the first things the prosecution would prove. However, the actual order or warrant of attachment signed by the judge himself has been duly proved and that has been marked as Ext. P1(b). A warrant of attachment under Order XXXVIII R.5 should be in Form No. 5 of Appendix F of the Code. But the form actually used for Ext. P1 (b) was the Malayalam form prescribed under the old Travancore Civil Procedure Code corresponding to Form No. 8 of Appendix E of the Code which is the form for a warrant under Order XXI R.30 for the attachment of movable property in execution of a decree for money. This form has been most clumsily adapted for the purposes of Order XXXVIII R.5. It is headed, "which literally means, "Order of immediate attachment", but is the expression in use for a conditional attachment - usually referred to as an interim attachment - under Order XXXVIII R.5(3). The number and other particulars of the suit in which the warrant is issued are furnished. But the provision of law given in the printed form, namely, Order XXI R.28 of the Travancore Civil Procedure Code (Order XXI R.30 of the Civil Procedure Code) has not been scored off. Then the warrant goes on to authorise the Amin to attach the property specified in the accompanying schedule - Ext. P-2(a) is the schedule - namely, the bus belonging to the defendant, for the decree that may be passed in the suit in the plaintiff's favour, and, unless the amount claimed in the suit and the costs (both of which are specified) are paid to him, to hold the property until further orders from the court.

3. There is evidence to prove that there was a suit for money (O.S. No. 107 of 1963 of the Sub Court, Kottayam) against the 2nd accused, that the plaintiff therein applied for the attachment before judgment of the 2nd accused's bus and that it was on that application that the order, Ext. P-1(b), was made. As we have seen Ext. P-1(b) is headed "Order of conditional attachment" and it says that the attachment is in respect of the decree that may be passed in favour of the plaintiff. It is therefore clear that the order is an order of conditional attachment under Order XXXVIII R.5(3) of the Code. It is equally clear that it was made in utter disregard of the law. It does not say that the court is satisfied that the grounds necessary for making an order under Order XXXVIII R.5 exist. But that, perhaps, is not an essential requirem