An order of attachment before judgment passed before the inclusion of Sub-rule (4) of Rule 5 of Order 38, which stated that an order of attachment made without complying with the provisions of Sub-rule (1) of Rule 5 shall be void, is not necessarily ultra vires or void ab initio.

S. Swamikkannu, J.

1. This is an appeal filed by the plaintiff in O.S. No. 49 of 1978 on the file of the Court of the Second Additional Subordinate Judge of Pondicherry, against the judgment of the trial Court dated 7th September, 1979, dismissing the suit.

2. The case of the plaintiff-appellant in the lower Court was as follows : The second defendant sold the suit house to him for Rs. 45,000/- under a sale deed dated 11.8.1976. At the time of execution of the sale deed, the second defendant produced an encumbrance certificate which showed that a sum of Rs. 20,000/ had been borrowed by the second defendant from one Kanagalingam on 4.9.1973. The encumbrance certificate did not disclose any other encumbrance. The plaintiff took possession of the house. While so, on 8.2.1978, the plaintiff found a sale notice affixed on the suit property, which proclaimed for sale the suit property in E.P. No. 314 of 1977 on the file of the Sub-Court, Pondicherry. The above sale notice disclosed the second defendant as the judgment-debtor in the said execution petition which had been filed in execution of a decree obtained by the first defendant against the second defendant in O.S. No. 91 of 1973 on the file of the Sub-Court, Pondicherry, for a sum of Rs. 10,407/-. The sale notice also disclosed that the suit property had been attached before judgment by the first defendant in I.A. No. 541 of 1973 in the said suit. At the time of the sale the second defendant did not disclose to the plaintiff any such attachment by the court and the plaintiff too had no reasonable possibility to have knowledge of the said attachment. The above attachment effected in the suit was made absolute since the second defendant submitted to a decree in that suit. The very contents of the order of attachment as disclosed in the sale notice, shows that the court, in the earlier suit by the first defendant, had not applied its mind in passing the order of attachment and making it absolute. The above order is not conditional in nature as prescribed by Order 38, Rule 5, Code of Civil Procedure, and hence the order of attachment is null and void. According to the plaintiff, no attachment had been made on 2.5.1973 and the attachment was not also made as required under the Rules governing the effecting of attachments before judgment. Therefore, the order of attachment is ab initio void and not enforceable in law. It appears to have been effected in collusion between the first and second defendants in a fraudulent manner in order to deceive a third-party. The plaintiff came to know of the said fraud committed only On 8.2.1978 and has filed the suit to set aside the said attachment in I.A. No. 541 of 1973 as null and void.

3. The second defendant did not contest the suit, but remained ex-parte. The first defendant filed written statement and contended as follows : The appellant-plaintiff has no locus standi to file the suit against the first defendant. The first defendant filed the earlier suit O.S. No-91 of 1973 for recovery of moneys due by the second defendant under a chit, along with interest and costs. Therein it filed I.A. No. 541 of 1973 alleging that the second defendant was trying to sell away the suit property in order to defeat the first defendant and the Court, after consoling the plaint and the petition in that suit, passed an order of attachment which had been effected according to law. The second defendant had not taken any steps to have the said attachment vacated and had not also chosen to contest the suit since the claim was bona fide. From the date of the attachment the property had been kept in custodia legiss for being dealt with by the Court. Vile so, the judgment debtor, viz., the second defendant had no right to execute any sale deed in favour of a third-party concerning the said property, and the alienation made by the judgment-debtor during the pendency of the attachment in favour of the plaintiff cannot confer any right on him. The purchas of the pro