When order of interim attachment can be passed.

Srinivasan, J.

1. This appeal is against an order passed on 43.1988 by the Subordinate Judge, Dindigul making the interim attachment absolute.

2. The respondent herein filed a suit for recovery of a sum of Rs. 51,300 with interest on Rs. 45,000 at 24% per annum from the date of plaint. The suit is based on two promissory notes executed by the defendants. While the suit was pending, the respondent applied for attachment of the properties. In support of the application for attachment the respondent had made the following averments:

... Now, already 1st defendant's husband wound up his business at Madras and is attempting to sell the same to third parties. She has only one house at Madurai with intention to obstruct and delay the execution of the decree that may be passed in this suit, she is about to dispose off the whole of the property belonging to her and to secrete the consideration herself. If she does so, I may not be able to recover any amount. I have also filed a third party affidavit to substantiate the same. Hence this application has been filed by me for an order of attachment before judgment of the properties mentioned in the application and an ad interim attachment pending disposal of this application. This application is filed for the same.

3. In support of his affidavit the respondent had also obtained a third party affidavit and filed the same in Court. That affidavit is to the effect that the first defendant had closed his shop and he was arranging for the sale of this house. On this application for attachment, the Court passed an order on 2.12.1987 directing notice calling upon the appellant to furnish security and interim conditional attachment.

4. After the receipt of notice, the appellant engaged a counsel who appeared before the Court and applied for time for filling counter. That was on 11.12.1987. One Thiru Kadar Batcha appeared for the appellant. Time was granted till 7.1.1988 for filing counter and on 7.1.1988 no counter was filed and further time for filing counter was prayed for. The Court adjourned the matter to 4.3.1988 for counter and enquiry. ON 4.3.1988 no counter was filed in Court and the Court passed an order which is as follows:

Counter is not filed. In the interest of justice the petition is allowed, attachment made absolute.

5. It is the said order which is challenged in this appeal. Learned Counsel for the appellant contends that the interim order of attachment made on 2.12.1987 is not in accordance with the provisions of Order 8, Rule 5, Code of Civil Procedure and it is, therefore, null and void. According to learned Counsel the order dated 4.3.1988 making the interim attachment absolute is also void. Learned Counsel placed reliance upon a decision of this Court in Pappammal v. Chidambaram. In that case, the order of the Court was in the following terms:

Heard, interim attachment and notice 10th February, 1982.

Even on 8th February, 1982, the defendant filed his counter affidavit and was ready for enquiry on 10th February,' 1982. After the matter was adjourned several times the Court passed a final order in the following terms:

... The only objection raised by the respondent (petitioner in the civil revision petition) (words in brackets nine) 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. No. 1209 of 1982 is allowed and the attachment already effected is made absolute.

6. Ratnam, J. who considered the validity of those orders held on the facts of the case that the petition for attachment did not even contain the necessary particulars. He held that the provisions of Order 38, Rule 5 of the Code of Civil Procedure were not complied with and the notice in that case was not issued in the proper form. He held that the attachment in that case was void and set aside the order of the Court below. While discussing the law on the subject, he ob