Order of attachment prior to judgment set aside.

ORDER: - In this civil revision petition at the instance of the defendant in O.S. No. 426 of 1982, II Additional City Civil Court, Madras, the principal question that arises for consideration is, whether the order of attachment passed by the court below accords with the provisions of O.38, R.5, C. P. C., as amended by Act 104 of 1976 and is valid or is vitiated and void.

2. The suit in O.S. 426 of 1982 was laid by the respondent herein against the petitioner for the recovery of a sum of Rs. 66,468.15 with further interest and other incidental reliefs. In I. A. No. 1209 of 1982 filed on 22-1-1982, under O.38, R.5, C. P. C., the respondent prayed for an order of attachment before judgment of two items of immovable properties belonging to the petitioner. In the affidavit in support of that application, the respondent after referring to the circumstances leading up to the institution of the suit for the recovery of the amounts from the petitioner, stated that the petitioner is in highly involved circumstances and that she has no other property except the two items of immovable properties and further that with a view to defeat and delay himself and other creditors, the petitioner was attempting to dispose of the properties, which, if not prevented, would result in serious prejudice to the respondent as well as other creditors. The respondent also stated that the petitioner had declared her inability to pay the amount as she was in financially helpless circumstances and that, therefore, an order of interim attachment of the immovable properties should also be passed. On 25-1-1982, an order was passed by the court in the following terms:-

"Heard. Interim attachment and notice 10-2-1982."

Even on 8-2-1982, the petitioner filed a counter-affidavit in opposition to the application for attachment before judgment made by the respondent and on 10-2-1982, it was reported to Court that notice has been served on the petitioner and the property had also been attached and the filing of the counter by the petitioner was also noted by the court and the matter was posted for enquiry to 262-1982, from which date it was adjourned to several other dates till it was finally posted to 1-4-1982. Meanwhile, the respondent took out another application in I. A. 1448 of 1982 to amend I. A. 1209 of 1982, by including two more items of properties for attachment before judgment.

3. That application as well as I. A. 1209 of 1982 were dealt with together and the II Additional Judge, City Civil Court, Madras, was of the view that as the respondent had the benefit of a charge over a picture and had not in any manner relinquished such a right, the property already attached in I. A. 1209 of 1982 would suffice to meet the suit claim and, therefore, the application for amendment filed by the respondent in I. A. 1448 of 1982 was dismissed as unnecessary. Dealing with I. A. 1209 of 1982, the learned II Additional Judge, City Civil Court, Madras, proceeded to dispose of that application in the following manner:

"The only objection raised by the respondent (petitioner in the civil revision petition) (words in brackets mine) is that she was not given show cause notice before attachment is ordered to furnish security. In every order of attachment before judgment, if security is furnished, the attachment is not effected. Hence I. A. 1209 of 1982, is allowed and the attachment already effected is made absolute."

It is the correctness of this order that is challenged in the above civil revision petition.

4. The principal contention of the learned counsel for the petitioner is that there has been no compliance at all with the procedural requirements under O.38 R.5 (1), C. P. C. and that, therefore, the attachment made is void in view of O.38, R.5 (4), C. P. C. Further, the learned counsel also contended that there is no power in the court to order a conditional attachment without giving a notice to the defendant and giving an opportunity to the defendant to furnish security o