WANCHOO, C. J - (1.) THESE are two connected matters arising out of the same judgment of the District Judge of Jodhpur.
(2.) THE appeal as well as revision has been filed by Bhuwan Mohan who was defendant in a suit brought by Oriental Government Security Life Assurance Co. Ltd. Bombay, against him and another person called Lalaram. THE appeal as well as revision has been filed as Bhuwan Mohan was not certain whether the order in dispute had been passed under O. 38, r. 6, or O. 38, r. 5. It appears to be a combination of both. The facts are that the applicant, was the Inspector of the Insurance Company at Jodhpur, and Lalaram, the other defendant, was the cashier. As Inspector it was the duty of the applicant according to the general instructions contained in the book supplied to him, to count the cash every evening and take the custody of such cash and lodge the same in the private safe which should have been kept under his control. The Company's case further was that there was a defalcation to the tune of Rs. 37,450/- in the cash at the Inspectorate Office at Jodhpur. The Company alleged that this was either due to a conspiracy between the applicant and the cashier Lalaram or at the lest due to the culpable negligence of the applicant in not carrying out his duties properly. The present suit was, therefore, filed by the Company against the applicant as well as the cashier for recovery of this money. The Company also filed an application for attachment before judgment and prayed that a certain house, belonging to the applicant, in the city of Jaipur, might be attached before judgment as it was felt that the applicant was about to dispose of the building with inter to defeat or delay the execution of the decree that might be passed against him eventually. It was also prayed that conditional attachment of the property be made under O. 38, r. 5, sub-rule (3 ). In addition, it was prayed that a temporary injunction be issued restraining the applicant from alienating his property. The Court issued a temporary injunction restraining the present applicant from disposing of the property under O. 39, r. 1. In addition to that notice of the application for attachment before judgment was also given to the present applicant. We are not concerned in these proceedings with the temporary injunction because that has expired. In reply to the notice of the application under O. 38, r. 5, the present applicant appeared and objected to the attachment of his property before judgment. Thereafter, Mr. Mehta, who had filed an affidavit on behalf of the Company, was cross-examined and the applicant gave a counter-affidavit in reply, and the Court decided, on the 2nd of June, 1951, that attachment before judgment should be allowed, and that the defendant should be directed to furnish security for Rs. 40,000/- failing which his house in Jaipur City would be attached before judgment. It may be added that the house has never been attached so far, and the security has also not been given yet. The order of the 2nd June does not give any time within which the security is to be deposited. Aggrieved by this order, the applicant has come to this Court both in appeal as well as revision. The main contention on behalf of the appellant is that the procedure adopted by the Court below is wrong and not in conformity with the provision of 0. 38, r. 5, and he has, therefore, been prejudiced, and the order of the 2nd June, 1951 should be set aside. It seems that the court below did not care to read the provisions of O. 38, r. 5 before is suing notice to the present, application and that is why the procedure provided in that rule was not followed. Sub-rule (l) of 0. 38, r. 5 provides that, on an application for attachment before judgment being made, the court would 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 to appear and show causes why he should not furnish security. There is a form provided in Appendix F for issuing notice under O. 38, r. 5, and that from is No. 5. It is the duty of the Court, therefore, before issuing a notice on an application under O. 38, r. 5 to specify the amount for which the security is to be given and also to specify the time within which such security is to be given. The notice should further direct the defendant to appear and show cause why the above order requiring security should not be carried out. After this notice under O. 38, r. 5 the court should proceed under O. 38, r. 6. Sub-rule (1) of that rule provides that if the defendant fails to show cause why he should not furnish security, or fails to furnish the security required, within the time fixed by the court, the court may order that the property specified be attached. Sub-rule (2) of rule 6 further provides that where the defendant shows such cause or furnishes the required security, the property specified shall not be attached of if it has been conditionally attached the attachment would be withdrawn. The procedure, that has been followed by the court below is not in accordance with this, and that is why we find that the order of the 2nd of June, 1951, is neither in terms of rule 5, nor in terms of rule 6. It is a curious order which can be read as coming both under rule 5 and rule 6, and that is why the applicant was compelled to file both an appeal and a revision to this Court. That is why also we find the curious position that though an order requiring security was passed as far back as the 2nd of June, 1951, and the order also said that in case the security was not furnished, the property would be attached, neither has the security been furnished, not has the property been attached. The next question is as to what should be done in the circumstances. We are of opinion that the order of the 2nd of June cannot be allowed to stand. In this connection, it is enough to refer to two cases. In B. Prag Nath vs. Mst. Indra Devi (1) (AIR 1934 All. 456.), a similar mistake was made by the court when dealing with an application under O. 38, r. 5. There also the first notice was in these words : "let notice go the defendant to show cause, if any against this application. " The Judge in that case did not carefully read the provisions of O. 38, r. 5, and worded his order wrongly with the result that the office did not issue a notice in form No. 5 of Appendix F of the Civil Procedure Code, as should have been properly done. I the result the learned Judges allowed the appeal, and sent the case back to the court with the direction that it should proceed according to the provisions of O. 38, r. 5, and after issuing a proper notice dispose of the application finally. In Kalulal vs. Shri Narain (2) (1951 RLW 168.), it was pointed out that the language of- rule 5 was very clear, and before passing an order under O. 31, r. 5 the court must faithfully and strictly carry out the stringent procedure provided in the rule. We are in respectful agreement with the view taken in these two cases, and, in the circumstance, the appeal must be allowed. In B. Prag Nath's case (1) (AIR 1934 All. , 456), the learned Judges, while remanding the case, converted the order of attachment, which had been passed irregularly, into a conditional order of attachment under O. 38, r. 5, sub-rule (3 ). Learned counsel for the respondent prays that we should also pass an order of conditional attachment; but there is one vital difference between B. Prag Nath's case (1), and the present case. In that ease, there was an order of attachment passed by the court below, though irregularly. In the case before us, there is no order of attachment all, and therefore no question arises of our converting it into an order of conditional attachment. As the case will now go back and will be dealt with from the very beginning, it will be open to the opposite party to request the court below for an order of conditional attachment. We therefore, allow the appeal, set aside the order of the court below, and send the case back to the court with the direction that it should proceed with the case according to the provisions of O. 38, r. 5, and after issuing a proper notice dispose of the application finally. We order parties to bear their own costs of this Court. As for the revision, it has become infructuous for we have allowed the appeal, and we dismiss it. Parties will bear their own costs of the revision application also. . ;