D.K.Seth, J. - (1.) The order dated 3.7.1999 passed by the learned Additional District Judge, IIIrd Court, Bareilly in Misc. Civil Appeal No. 7 of 1999 affirming the order dated 3.9.1996 passed by the learned civil Judge in Original Suit No. 492 of 1995 has since been challenged.
(2.) Shri Vipin Sinha, learned counsel for the petitioner contends that the learned trial court has to come to a finding that there was no ingredient for invoking Order XXXVIII, Rule 5 of the Code of Civil Procedure, therefore, directing furnishing of security is wholly illegal exercise of jurisdiction and as such the impugned order is liable to be set aside. The order passed by the appeal court also suffers from the same infirmity.
(3.) But the fact remains that so far as the trial court is concerned, it had come to a conclusion that there was no ingredient disclosed in the application under Order XXXVIII, Rule 5, in order to pass an order of attachment, still then it had directed furnishing of security without requiring the defendant to show cause as to why he may not furnish the security. Drawing my attention to sub-Rule (4) of Rule 5. Shri Sinha contends that if such an order of attachment is made without complying with the provisions of sub-rule (1), in that event, the same shall be void. On these grounds, he contends that the orders should be set aside.;