GUPTA, J —This revision petition has been filed against the order passed by the learned Additional District Judge, Sirohi, dated July 5, 1973 by which he restored the Civil Misc. Case No. 5 of 1965, in respect of proceedings under Order 38, Rule 5, C.P.C., to its original number and directed that further enquiry be made in those proceedings. The argument which prevailed with the learned Judge was that Civil Misc. Case No 5 of 1965 was consigned to record on October 28, 1970 without passing any final order and as such those proceedings should be revived.

2. I am constrained to observe that the learned Additional District Judge did not at all appreciate the nature of the proceedings under Order 38, Rule 5, Civil Procedure Code. Under Order 38, Rule 5, the Court is empowered, at any stage of a suit, to direct the defendant either to furnish security in such sum as may be specified in the order or to produce and place at the disposal of the court, when required, the said property or the value thereof or such portion thereof as may be sufficient to satisfy the decree that may be passed in the suit or to appear and show cause way he should not furnish security, provided the conditions specified in that provision are satisfied. In case the defendant fails to show cause why he should not furnish security or fails to furnish security within the time allowed by the court in that behalf, then under Order 38, Rule 6, Civil Procedure Code, the Court may pass an order directing that the property specified therein or such portion thereof, as may be sufficient to satisfy the decree that may be passed in the suit, may be attached. Thus, if the conditions mentioned in Order 38, Rule 5, C.P.C., are fulfilled, then the court hearing the suit is empowered, at any stage of the suit, to direct the defendant either to furnish security or to show cause why he should not furnish such security and in the event of his failure to do so, an order under the provisions of Order 38, Rule 6, C.P.C. may be passed, directing the attachment of the property or a portion thereof, as may be sufficient to satisfy the decree that may be passed in the suit.

3. In the present case, the plaintiff filed a suit No. 25 of 1965 for the recovery of Rs. 34,500/ against the firm M/s Mohammed Saddiq Hazi Hussain and its partners on June 4, 1965 Along with the suit, the plaintiff filed an application under Order 38, Rule 5, C.P.C. The defendants appeared and they gave an undertaking that they would not sell or mortgage their immovable properties. Moreover, one Maganlal executed a bond to the effect that if the stock of charcoal referred to in the application of the plaintiff under Order 38, Rule 5, C.P.C. was found by the court to be attachable and in case the court directs the defendants to furnish security, then he would deposit in court a sum of Rs. 10,000/- if the defendant fails to file security in pursuance of the order of the court passed under Order 38, Rule 5, CPC The proceedings under Order 38, Rule 5, C.P.C. were taken in Civil Misc. Case No. 5 of 1965. After the aforesaid unedrtaking was given by the defendants and Maganlal executed the aforesaid bond on June 5, 1965, no further order was passed by the court in the case in accordance with the provisions of Order 38, Rule 5 C.P.C. or under Rule 6 of the said Order. The court could have either called upon the defendants to furnish security in such sum as it might have specified in the order, to produce and place at the disposal of the court, when required, the properties specified therein or the value thereof or such portion thereof as may be sufficient to satisfy the decree that may be passed in the suit or the court could have proceeded to attach the property under Order 38, Rule 6, C.P.C. But nothing of the kind was done in this case.

4. On October 28, 1970, the suit was decreed as against the firm, M/s Mohammed Saddique Hazi Hussain but was dismissed against its partners On that very day, the trial court passed an orde

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