B. L. Yadav, J. - (1.) THIS is a defendant's appeal against the order dated 6-8-1988 passed under Order 38 Rule 5 (3) of the Code of Civil Procedure, (for short the Code), by the Civil Judge, Lalitpur, directing the defendant not to transfer his property till he appears on 1-11-88 and shows cause as to why not the application of the plaintiff respondent for attachment before judgment could be allowed.
(2.) SRI V. S. Singh, learned counsel for the appellant urged that the impugned order was beyond the scope of Order 38 Rule 5 (3) of the Code and principles of natural justice were violated. Reliance was placed on Vishwanath v. Pirabhunath Misir, 1982 ACJ 119. Before coming to tbe point it is convenient to refer to the factual metrix a bit in detail. The plaintiff respondents have filed a suit for recovery of a sum of Rs.9,53,000/- from the defendant appellant with pendente lite and future interest on 22-2-84 in the court of the Civil Judge, Lalitpur. The plaint was filed with insufficient stamp and an application was filed to grant some more time to enable the plaintiff to make good the deficiency. Till 30-5-88 from time to time opportunity was given to the plaintiffs to make good the deficiency. On 30-5-88 another application was filed under sections 148/149 of the Code for further extension of time, which was rejected. The plaint was also rejected under Order 7 Rule 11 of the Code. On 1-7-88 an application under section 151 was filed for recalling the order dated 30-5-88. On 8-7-88 the application dated 1-7-88 was allowed. On 6-8-88 the plaintiff respondents filed an application under Order 38 Rule 5 of the Code for attachment before judgment, and on that date the Civil Judge passed the impugned order. Shorn of details the findings are that the plaintiffs' application was accompanied by an affidavit with the allegations that the defendant appellant was making efforts to dispose of his properties situate within the jurisdiction of the court and the notice sent to the defendant appellant has been received back without service with the indication that in State v. Mahendra Pratap Singh the plaintiff appeared in the Court of the District Magistrate. On this background 23-8-88 was the date fixed for showing cause and prima facie reliance was placed on the averments made by the plaintiff in his affidavit. The defendants were directed to appear on 1-11-88 and to file objections. By that date the defendants were directed not to dispose of the property in suit. Ex Abundanti cautela, the statutory provisions . of Rule 5 Order 38 are set out below :- " 5. Where defendant may be, called upon to furnish security for production of property :- (1) Where, at any stage of the 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. "
(3.) THE elementary rule of interpretation is that it must be textual and contextual. All the provisions of the statute must be considered together and all the sub-sections or sections or rules have also to be read and construed together. In fact, every Chapter or Order of the Code has got a distinct connotation. All the rules of Order 38 appear to be somewhat inter connected. One need not be read in isolation. In brief Rule 1 of Order 38 is that at any stage of the suit if the Court is satisfied by affidavit or otherwise that the defendant with intent to delay the plaintiff, or to avoid any process of the court or to obstruct or delay the execution of any decree that may be passed against him, has neither absconded nor is about to leave the local limits of the jurisdiction of the court or to dispose of his property or any part thereof, or he is about to leave the country, in such and similar other situations the court may issue a warrant to arrest the defendant and bring him before the Court to show cause why he should not furnish security for his appearance. Rule 2 is that when the defendant fails to show cause, the Court may order him to deposit money and other sufficient property to answer the claim of the plaintiff. Rules 3 and 4 provide procedure on the application by surety to be discharged or where the defendants fail to furnish security. Rule 5 is the procedure for attachment before judgment. Rule 5 deals with a separate heading and power of the Court (i. e. attachment before judgment) and a distinct power of the Court to pass an order for attachment before judgment in two stages. The first is before the stage of showing cause when the notice to show cause has been issued. Till the defendant appears and shows cause as to why not the order for attachment before judgment may be passed, the Court may pass order for attachment. It is with the first stage that we are concerned in the present appeal. Notices were issued to the defendant appellant to appear on a particular date fixed and an affidavit was filed by the plaintiff making out a ground that the intention of the defendant was to obstruct or delay the execution of decree to be passed in favour of the plaintiff, to dispose of whole or any part of the property or to remove whole or any part of the property from the local limits of the jurisdiction of the Court. Consequently, the plaintiff wanted his prayer to be granted. The impugned order was passed as the Court was satisfied on the basis of the averments made in the affidavit that till the defendant appears and shows cause he should not dispose of the property in suit. Sub-rule (3) of Rule 5 of Order 38 gives the court a slightly distinct and separate power than other sub-rules. It is to be emphasized that sub-rule (3) is an additional jurisdiction of the Court that under such circumstances the Court may also direct additional attachment of the whole or any part of the property. Rule 5 has been enacted with a salutary object so that there may not be any attempt on the part of the defendant to defeat the realization of decree that may be passed in favour of the plaintiff and the same has to be kept in mind before passing the order.;