Mehta - (1.) THIS appeal arises out of an application under O. 38, R. 5 C.P.C.
(2.) THE plaintiffs brought suit on 27th November, 1948 against Kalulal and others for recovery of a sum of Rs. 9963/10/- in the court of the District Judge, Kishangarh. THE defendants denied the plaintiffs' claim. An application was filed by the plaintiff Shri Narain on 18th June, 1949 alleging that the defendants had mortgaged their property situated at Madan-ganj to Radha Mohan Shridhar and that they were also about to dispose of their property situated at Singara by way of sale with intent to obstruct the execution of any decree that might be passed against them in the suit and to deprive the plaintiffs of the fruits of such a decree. It was, therefore, prayed that the Singara property be attached before judgment. This application was accompanied by an affidavit. THE District Judge Kishan-garh ordered this application to be put upon the date of hearing of the case, the 28th June, 1949. But on 21th June, 1949 the plaintiffs presented another application by way of reminder praying that orders on his previous application be passed as the defendants were about to alienate their property. Upon this application the District Judge on that very day passed an order in the following terms: - ".........As the applicant has stated in the affidavit that the defendants had mortgaged their Madanganj property and are about to dispose of their property situated at Singara the Singara property may be-attached & security be taken. It is hereby ordered that a warrant of attachment before judgment under O. 38, R. 5 C.P.C. be issued." It is against this order that the defendants have come here in appeal. It has been argued on behalf of the appellants that as the plaintiffs did not state the source of information in the affidavit filed by them it was not a proper affidavit and no order for attachment before judgment could be passed on the strength of such an affidavit and secondly that as the provisions of O. 38, R. 5 C.P.C. have not been complied with inasmuch as no notice was issued to the defendants as was necessary under those provisions, the order is void. It may be observed that although the order challenged in this appeal has apparently been made under 0. 38 R. 5 it is in reality an order passed under O. 38, R. 6 because it is not one of conditional attachment and, therefore,it is appealable under O. 43, R. I (q) (Vide 107 1. C. 276 and 23 1. C. 1o7). To justify an order of attachment before judgment it is necessary that the court should be satisfied that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him, is about to dispose of the whole or any part of his property or is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court. Now the evidence on which the learned District Judge has apparently relied is a statement of the plaintiff Shri Narain on affidavit. In the affidavit the plaintiff has simply stated that the defendants had disposed of their property at Madanganj and were about to dispose of their property situated at Singara. No details what ever have been given beyond this bare statement. It is not clear as to whom the defendants wanted to sell their Singara property. Nor the plaintiff has stated the source of his information. Therefore this affidavit containing a vague statement by itself cannot be held to be sufficient to satisfy that the defendants were about to dispose of their property. As has been held in A.I.R. 1936 Lah. 33 and A.I.R. 1926 Cal., 855 the provisions of O. 38, R. 5 and 6 C.P.C. arc very drastic as the plaintiff can by them secure a very great advantage over his opponent in the earlier stages of the litigation long before the merits of the controversy are tried out. The Court should therefore be fully satisfied on a proper affidavit or other materials whether it can take any action under O. 38 R. 5 and 6. Where the affidavit filed by the applicant is wholly inadequate it is not in law an affidavit and no action under O. 38 R. 5 and 6 can be taken on it. In the present case the mere allegation by the plaintiffs that the defendants were about to dispose of their property, without stating the source of information,was not sufficient and no order for attachment before judgment could be pasted on his ground. The first objection of the appellants therefore succeeds. The other objection of the appellants is also not without force. Under O. 38 R. 5 a court cannot at once order attachment before judgement. It must at first direct the defendants 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. It is only on the court's ordering security to be given and on the failure of the defendant in giving such security that attachment can be ordered. The language of O. 38. R. 5 (1) is very clear and before passing an order of attachment before judgment the Court must faithfully and strictly carry out the strin ent procedure as laid in O. 38 R. 5 C.P.C. No short cuts are permissible. In this case the lower Court has made an order for attachment before judgment without directing the defendants to furnish security or giving an opportunity to show cause why they should not furnish security. Under O.38 R. 5 (3) the Court could order conditional attachment of the whole or any portion of the property with the order calling upon the defendants to furnish secu-rity for production of the property or to show cause against furnishing such security. But the lower Court has not made a conditional order of attachment before judgment. The order of the District Judge, therefore, cannot be maintained on this ground as well. In A.I.R. 1936 Lah. 35, A, I. E. 1942 Peshawar 17, A.I.R. 1936 All 498 the orders of attachment before judgment have been set aside on this very ground. The appeal, therefore, succeeds and is allowed with costs. The order of the District Judge ordering attachment before judgment is set aside. Counsel's fee Rs. 15/-. ;