Defendant if can be furnish third party security.

This civil revision petition and the civil miscellaneous appeal are against the orders passed in I.A.No.775 of 1991 in O.S.No.231 of 1991 on the file of Subordinate Judge, Sankari.

2. The short facts are: The respondent herein had filed the suit on a promissory note against the first revision petitioner and had also filed a petition in I.A.No.775 of 1991 for attachment before judgment. In that petition, the first petitioner in the civil revision petition who was the defendant in the suit and the second revision petitioner in C.RP.No.1638 of 1992 who was a third party in the suit, had offered the properties belonging to the second revision petitioner/third party as security. Learned Subordinate Judge had rejected it stating that the property offered by the third party as security cannot be accepted. Aggrieved by that order, C.R.P.No.1638 of 1992 is filed by the defendant as well as the third party, as revision petitioners. After rejecting the security offered by the third-party, learned Subordinate Judge, has passed an order of attachment. Aggrieved by the order of attachment before judgment, C.M.A. No.509 of 1992 is filed.

3. Mr.R.Sekar, learned counsel appearing for the revision petitioners/appellants would submit that the court below is wrong in rejecting the security furnished by the third-party and that 0.38, Rules 5 and 6 and Form No.6 in Appendix-F of Civil Procedure Code, would clearly indicate that a third-party can furnish security in such contingencies and the lower court is wrong in rejecting the same.

4. Per contra, Mr.V.K.Muthusami, learned counsel appearing for the respondent, would submit that the language of O.38, Rules 5 and 6, C.P.C. does not explicitly permit a third-party to furnish security nor can it be implied from the language of Form No.6 in Appendix-F of C.P.C. He would further submit that in case his submission is not accepted, the matter may be remitted back to the trial court for finding whether the security offered by the third-party is enough to discharge the decree that may be passed if the defendant fails to produce the property which is sought to be attached or value of the same and only in case the solvency of the property offered by the surety is accepted Form 6 in Appendix-F can be taken into account by the court below.

5. I have carefully considered the submissions made by the rival counsels. For a better appreciation of the rival contentions O.38, Rules 5 and 6 Form in Appendix F of C.P.C. need extraction.

“0.38, Rule 5: Where defendant may be called upon to furnish security for production of property:

(1)” Where, at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him,-

(a) is about to dispose of the whole or any part of his property, or

(b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court, the court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security.

(2) The plaintiff shall, unless the court otherwise directs, specify the property required to be attached and the estimated value thereof.

(3) The court may also in the order direct the conditional attachment of the whole or any portion of the property so specified.

(4) If an order of attachment, is made without complying with the provisions of sub-rule (1) of this rule, such attachment shall be void.

Rule 6: Attachment where cause not shown or security not furnished (1) Where the defendant fails to show cause why he should not furnish security, or fails to furnish the security required, within the time fixed by the