The conditional order of attachment can be passed simultaneously with the issuance of notice under Order 38, Rule 5, sub-rule (1) to protect the plaintiff's interest, but compliance with the provisions of sub-rule (1) is necessary before passing an attachment order.

B. P. DAS, J.

( 1 ) THIS miscellaneous appeal is directed against an order dated 10-8-2000 passed by the learned Civil Judge (Senior Division), Balasore on an application filed under Order 39, Rule 6 of the Code of Civil Procedure (hereinafter REFERRED TO as "c. P. C. "), registered as Misc. Case No. 453 of 2000 arising out of Money Suit No. 35 of 2000.

( 2 ) THE brief fact leading to this appeal as stated by the learned counsel for the appellant was that an application under Order 38, Rule 5, C. P. C. was filed by the present respondent who as plaintiff filed a suit in the Court below for recovery of an amount of Rs. 6,50,000/- from the present appellant who was the defendant in the said suit. According to the appellant the order of conditional attachment passed by the learned Civil Judge is illegal and contrary to the provisions of Order 38, Rule 5, sub-rule (4), C. P. C.

( 3 ) THE case of the plaintiff respondent, is that in pursuance of an agreement dated 17-12-1997 the defendant-appellant took a loan of Rs. 5,00,000/- from her promising to repay the same within two years. Further it was agreed that in the event the defendant-appellant would fail to repay the money within two years in terms of the agreement, the respondent would attach the trawler by the process of law, and at the same time the appellant also agreed to supply all the spoils from the sea to the respondent and the respondent would also be entitled to take 10% commission from the total sale amount of the fish. Accordingly, the money advanced by the present respondent was invested in the fishing business and the appellant procured fish by his trawler namly Sona (sic) The allegation of the respondent is that the appellant violated the terms of the agreement and after repeated demands, he delivered two cheques drawn on the Union Bank of India, Balasore in favour of the plaintiff-respondent for an amount of Rs. 2,50,000/- each towards the loan amount but the said cheques were returned by the banker as there was no balance in the account of the present appellant. When the respondent failed to get back the money, after taking all possible steps, she had no other way out than to take legal course and accordingly filed the suit for recovery of the said amount as aforesaid. The respondent came to know from reliable source that the present appellant is going to sell away his trawler, the cost of which would be around Rs. 10,00,000/-, solely with a motive to obstruct or delay the execution of any decree that might be passed against him. In order to protect herself, the respondent filed an application under Order 38, Rule 5, C. P. C. of which notice was issued directing the present appellant to appear before the Court on the date fixed and to furnish security to the tune of Rs. 6,50,000/- and to produce the trawler at the time, date and place to be directed by the Court when required or to furnish security towards the value of the same or such portion thereof as may be sufficient to satisfy the decree. While issuing notice to show cause, the learned Civil Judge (Senior Division), Balasore also passed order of conditional attachment of the trawler in question. Accordingly he directed attachment of the entire trawler with all its accessories if the present appellant fails to pay the amount of Rs. 6,50,000/ -. Along with the conditional order of attachment, the learned Civil Judge also directed the police authorities to render all necessary police help to the bailiff and the zimadar for attachment and custody of the trawler in question.

( 4 ) LEARNED counsel for the appellant submits that an application was filed by him to stay the order of attachment on 28-7-2000 and thereafter on 31-7-2000 another application was filed to vacate the order of attachment along with his show cause and counter. The learned Civil Judge (Senior Division), Balasore after perusal of the same and on hearing both sides ultimately came to the conclusion that prima facie, the defendant failed to e