R.S.Narula, J. - (1.) THIS order will dispose of Civil Revision Nos. 783 of 1976 and 782 of 1976 in both of which the parties are the same and arise out of the same suit relating to the same proceedings for attachment before judgment. In a money suit for recovery of Rs. 23,000/ -, the plaintiff petitioners made in application under order 38 Rule 5 of the Code of Civil Procedure (hereinafter referred to as the Code) for attachment before judgment. While issuing notice of the application to show cause who the defendant -respondents should not furnish security for the amount in suit, the trial Court issued conditional attachment under sub Rule (1) of Rule 5 of Order 38 of the Code of various amounts which were due to the defended -respondents from certain Government departments. The defendants failed to show cause against the application and did not furnish security which they had been called Upon to furnish under Order 38 Rule 5(1) of the Code. It was in those circumstances that on February 20, 1976, the trial Court passed an order to the following effect: - In view of the statement of the Learned Counsel for the plaintiff, recorded overleaf the attachment in respect of the amount of Rs. 27 000/ - belonging to the defendant Nos. 1 to 3 lying with (?...) in force. The amounts belonging to the defendant Nos. 1 to 3 lying with the other departments which were attached are hereby released from attachment. Release warrants be issued accordingly...... The amount of defendant Nos. 1 and 3 over and above the said sum of Rs. 27,000/ - lying with Garrison Engineer. Chandigarh is ordered to be released. The effect of the order which related to defendants 1 to 3 was that a sum of Rs. 27,000/ - due to them from certain departments was finally attached under Rule 5, Order 38 of the Code and the attachment of other amounts due to them was released. It appears that subsequently the defendant -respondents made some application to the trial Court in pursuance of which the order dated May 15, 1976 was passed in the following words: - Today the requisite security to the tune of Rs. 27,000/ - has been furnished and accepted by the Court. Hence, I order that the amounts belonging to the defendant Nos. 1 to 3 lying with the department concerned and attached before judgment in pursuance of the warrant of attachment issued by this Court are released from attachment. Intimation to be sent to the concerned department forthwith. This is the order watch has been impugned in Civil Revision No. 783 of 1976.
(2.) MR . R.L. Aggarwal, Learned Counsel for the petitioners, has rightly pointed out that though the trial Court has full jurisdiction to accept security so long as the proceedings for attachment before judgment are pending but It has no jurisdiction after culmination of those proceedings in the order of final attachment under Order 38 Rule 6 of the Code to re -open the matter except possibly on an application for review in which case it would be necessary for the court to give notice (of the application) to the plaintiff petitioners before considering the merits of the review application. Counsel for the defendant -respondents has not been able to point out any error in this argument. Agreeing with the argument of the counsel for the petitioners, I hold that the order of the trial Court, dated May 15, 1976, is wholly without jurisdiction because it has been passed at the back of the plaintiff petitioners without any notice to them of the application of the defendant respondents on which the order was passed. Having come to know of the order of release dated May 15, 1976, the plaintiff petitioners filed an application dated May 17, 1976, for setting aside and vacating the order of release. Pending disposal of the plaintiffs' application dated May 17, 1976, the release warrant was called back by the trial Court. In the application dated May 17, 1976, the plaintiffs took up lengthy objections against the acceptance of surety bond on merits. 1 am not concerned with those objections in the present proceedings. Ultimately, by an order dated May 20, 1976, the trial Court rejected the application of the plaintiffs, dated May 17, 1976, on the ground that the surety bond had been duly attested by it and that the surety had shown to the Court that she was the owner of the property claimed by her on the basis of some will, Civil Revision No. 782 of 1976 has been filed against that order of the trial Court, dated May 20, 1976. Counsel for the plaintiff -petitioners has urged that the trial Court should have allowed the application dated May 17, 1976 (Civil Revision No. 782 of 1976) on the legal ground and also on the various grounds relating to the merits of the surety bond, which had been detailed in the application. Counsel for the respondents has argued that the question of validity of the order dated May 15, 1976, for want of jurisdiction had not been taken up by the plaintiff -petitioners before the trial Court. Be that as it may, the situation now is that the order dated May 15, 1976 having itself been set aside, the subsequent order dated May 20 1976, falls with it.
(3.) AT the stage, the counsel for the respondent submits that he now be permitted by this Court to furnish a fresh surety bond to the trial Court so that he may get the attachment released. It is not for this Court to entertain such applications. The defendant -respondents may, if so advised, make a suitable application for appropriate relief to the trial Court. If and when such application is made, the trial Court will have to issue notice thereof to the plaintiff petitioners and it is only after hearing both the sides that the Court below will be able to dispose of the application on merits in accordance with law.;