- (1.) THIS revision petition has been filed against the order passed by the learned Additional District Judge, Sirohi, dated July 5, 1973 by which he restored the Civil Misc. Case No. 5 of 1965, in respect of proceedings under Order 38, Rule 5, C. P. C. , to its original number and directed that further enquiry be made in those proceedings. The argument which prevailed with the learned Judge was that Civil Misc. Case No 5 of 1965 was consigned to record on October 28, 1970 without passing any final order and as such those proceedings should be revived.
(2.) I am constrained to observe that the learned Additional District Judge did not at all appreciate the nature of the proceedings under Order 38, Rule 5, Civil Procedure Code. Under Order 38, Rule 5, the Court is empowered, at any stage of a suit, to direct the defendant either to furnish security in such sum as may be specified in the order or to produce and place at the disposal of the court, when required, the said property or the value thereof or such portion thereof as may be sufficient to satisfy the decree that may be passed in the suit or to appear and show cause way he should not furnish security, provided the conditions specified in that provision are satisfied. In case the defendant fails to show cause why he should not furnish security or fails to furnish security within the time allowed by the court in that behalf, then under Order 38, Rule 6, Civil Procedure Code, the Court may pass an order directing that the property specified therein or such portion thereof, as may be sufficient to satisfy the decree that may be passed in the suit, may be attached. Thus, if the conditions mentioned in Order 38, Rule 5, C. P. C. , are fulfilled, then the court hearing the suit is empowered, at any stage of the suit, to direct the defendant either to furnish security or to show cause why he should not furnish such security and in the event of his failure to do so, an order under the provisions of Order 38, Rule 6, C. P. C. may be passed, directing the attachment of the property or a portion thereof, as may be sufficient to satisfy the decree that may be passed in the suit. In the present case, the plaintiff filed a suit No. 25 of 1965 for the recovery of Rs. 34,500/ against the firm M/s Mohammed Saddiq Hazi Hussain and its partners on June 4, 1965 Along with the suit, the plaintiff filed an application under Order 38, Rule 5, C. P. C. The defendants appeared and they gave an undertaking that they would not sell or mortgage their immovable properties. Moreover, one Maganlal executed a bond to the effect that if the stock of charcoal referred to in the application of the plaintiff under Order 38, Rule 5, C. P. C. was found by the court to be attachable and in case the court directs the defendants to furnish security, then he would deposit in court a sum of Rs. 10,000/- if the defendant fails to file security in pursuance of the order of the court passed under Order 38, Rule 5, CPC The proceedings under Order 38, Rule 5, C. P. C. were taken in Civil Misc. Case No. 5 of 1965. After the aforesaid unedrtaking was given by the defendants and Maganlal executed the aforesaid bond on June 5, 1965, no further order was passed by the court in the case in accordance with the provisions of Order 38, Rule 5 C. P. C. or under Rule 6 of the said Order. The court could have either called upon the defendants to furnish security in such sum as it might have specified in the order, to produce and place at the disposal of the court, when required, the properties specified therein or the value thereof or such portion thereof as may be sufficient to satisfy the decree that may be passed in the suit or the court could have proceeded to attach the property under Order 38, Rule 6, C. P. C. But nothing of the kind was done in this case. On October 28, 1970, the suit was decreed as against the firm, M/s Mohammed Saddique Hazi Hussain but was dismissed against its partners On that very day, the trial court passed an order in Civil Misc. Case No. 5 of 1965 that the said case may be considered to have been disposed of, as the suit No. 25 of 1965 was decreed on that day. It is in respect of the aforesaid order dated October 28, 1970 passed in Civil Misc. case No. 5 of 1965 that it has been held by the learned Additional District Judge that as no final order was then passed is that case and so the Misc. Case No. 5 of 1965 be restored to its original number. But it appears that the learned Additional District Judge completely lost sight of the fact that any order under Order 38, Rule 5, C. P. C. or for that matter even an order under Order, 38 Rule 6, C. P. C. , could be passed only during the pendency of the suit. Once the suit was either dismissed or decreed, the proceedings for attachment before judgment automatically came to an end. The order passed by the trial court on October 28, 1970 was perfectly justified in the circumstances of the case because the suit was decreed and no further proceedings could have been taken by that court thereafter on the application under Order 38 Rule 5, C. P. C. The proceedings in Civil Misc. Case No. 5, of 1965 were ipso facto terminated as soon as the suit was decided and no useful purpose can now be served by reviving those proceedings. The suit was decreed on October 28, 1970 and thereafter the court is not empowered to pass any order under Order 38 Rule 5 or even under Order 38 Rule 6, C. P. C. , in that case as such an order could be passed at any stage of the suit but not after the suit itself was disposed of Learned counsel for the petitioner has referred to the decisions in Beni Mahto vs. Chaturgun Sao (1) and Pragji Liladhar Firm vs. Prahlad Madho Patil (2) in support of his contention. In Beni Mahto's case (1), the question was as to whether an objection in respect of the attachment of the property attached before judgment could braised during execution proceedings and it was held that such an objection could be preferred after the decree was passed. But in that case, the question related to an application under Order 38 Rule 8, C. P. C. and an order of attachment had already been passed during the pendency of the suit under the provisions of Order 38 Rule 6, C. P. C. It was held in that case that if an objection is not raised under Order 38 Rule 8, C. P. C. , a claim petition under Order 21 Rule 58 C P. C. would still be maintainable. Thus Beni Mahto's case (1) has no application to the facts of the present case because no order under Order 38 Rule 5, C. P. C. , or Order 38 Rule 6, C. P. C. , has been passed in this case, as I have already pointed out above. The decision in Pragji Liladhar's case (2) is also to the same effect as in that case also a claim peti-tion under Order 21 Rule 58, C. P. C. was filed in a case of attachment before judgment and the plea that no objection under Order 38 Rule 8 having been raised, a claim petition under Order 21 Rule 58 C. P. C. was not maintainable, was held to be untenable. It was observed in that case that if the suit is dismissed, the attachment before judgment would be discharged and then it would not be necessary for the person, who has a claim to the property attached before judgment, to prefer any claim at all and so an objection petition under Order 21 Rule 58 was not hatred, even in cases where the property was attached before judgment. This case, therefore, is also not relevant to the question raised before me. In my view, after the decree has been passed in the suit, the proceedings under Order 38 Rule 5, C. P. C. , cannot survive and, therefore, they cannot be revived subsequently. In the result, the revision petition is allowed. The order passed by the learnd Additional District Judge, Sirohi, dated July 5, 1973 is set aside and the application for restoration, in respect of Civil Misc. Case No. 5 of 1965 is dismissed. The par ties are, however, left to bear their own costs. . ;