Modi, J. - (1.) THIS is a revision by the defendant Mangalram and two others in a suit which is pending in the court of the Civil Judge, Bharatpur.
(2.) THE material facts out of which this revision arises may be shortly stated as follows. THE plaintiffs opposite parties filed a suit against the defendants petitioners in the court of the Civil Judge, Bharatpur, for a sum of Rs. 4447/12/- on the 16th February, 1954. THE plaintiffs also presented an application lor attachment before judgment under 0. 38 r. 5 C. P. C. on the same date whereby for certain reasons mentioned in the application, two houses of the defendants were sought to be attached. THEreupon the trial court issued a notice to the defendants either to furnish security in the sum which was mentioned 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 cause why they should not furnish security. THE court also passed a conditional order of attachment of the two houses in question under sub-rule (3) of rule 5. What then happened was that when the bailiff went to serve this notice on the defendants, they furnished security to him and consequently no attachment was made as ordered by the court. THEreafter the case came before the court on the 8th April, 1954 by which date the defendants had also raised their objections to the plaintiffs' prayer under O. 38, r. 5 C. P. C. THE trial court held and, in my opinion, rightly that the security which the defendants gave to the bailiff and was accepted by him was absolutely unauthorised. That court, however, instead of considering the objections filed by the defendants directed a fresh conditional attachment of the properties in question of the defendants and further ordered that if the defendants should give security to the court before the warrant of attachment was issued, the order of conditional attachment shall not be executed, and that the objections raised by the defendants would be considered later. Against this order, the defendants went in appeal to the learned District Judge, Bharatpur who dismissed the appeal on the men's. THE present revision was then filed by the defendants in this Court, and this is how- the matter has come up before me. I have heard learned counsel for the defendants petitioners. It is to be regretted that no one has appeared before me on behalf of the plaintiffs opposite parties. It however clearly seems to me that the courts below have committed a number of irregularities in the disposal of the matter before them. At the very outset I should like to point out that no appeal lay to the District Judge against the order passed by the trial court, as an order passed under sub-rule (3) of r. 5 of O. 38 C. P. C. has not been made appealable under O. 43, r. 1. It may be pointed out in this connection that clause (q) of O. 43, r. 1 makes orders under rules 2, 3 and 6 of O. 38 appealable but there is no mention therein of an order passed under rule (5) of O. 38. Be that as it may, the principal question to consider in this revision is whether the order passed by the trial court directing conditional attachment by its order dated the 8th April, 1954, was correct. The language of O. 38, r. 5 clearly leads me to the conclusion that it was not. The scheme of that rule is that where the court is satisfied on proper materials 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 to remove the same from the jurisdiction of the court, the court may direct the defendant to furnish security in a certain sum to produce and place at the disposal of the court the said property or the value of the same or to appear and show cause why he should not furnish security. By sub-rule (3), it is further provided that while so directing the defendant to furnish security or to show cause why he should not furnish security, the court may also by that very order direct the provisional attachment of the whole or any portion of the property specified to it by the plaintiff until the further order of the court. In other words the order of conditional attachment can only be made, where necessary, alongwith the order to furnish security or to show cause why security should not be furnish but not otherwise. Now, what happened in this case was that the order of the court directing conditional attachment of the defendants' properties was not carried out in the first instance because the defendants had somehow furnished security to the bailiff and that security had been accepted, though wrongly. Thereafter when the matter came before the court on the 8th April, 1954, the defendants, however, had admittedly shown cause why they should not be called upon to furnish security. In these circumstances, it clearly seems to me that what the court should have done was to have applied its judicial mind to the question whether the reasons given by the defendants, not to be called upon to furnish security, were well founded or not and thereafter to pass a proper order under 0. 38, r. 6 C. P. C. What the court, however, did was to have again directed the conditional attachment of the defendants' properties though they had already adduced reasons to the court why they should not be called upon to furnish security. I have no doubt that an order of conditional attachment in such circumstances is not at all contemplated by the scheme and intendment of O. 38 r. 5 and it could not have been correctly passed. The reason is that a conditional order of attachment cannot be made without at the same time making an order directing the defendant to furnish security or to show cause why he should not furnish security. I also wish to point out that, putting the best construction on the order of the trial court, namely that it was really reinforcing its original order, the further order of the court that the warrant of conditional attachment should not issue if security is furnished seems to me to be clearly self-contradictory, the reason being that the order of conditional attachment was obviously an order over and above the requirement to furnish security as ordered by the court in the first instance and that such an order is in addition to the requirement of security also clearly appears from Form No. 5 of the order of attachment before judgment prescribed in Appendix F of the Code of Civil Procedure. I may also point out in this connection that learned counsel for the petitioners tells me that security was furnished by his clients in compliance with the order of the court dated the 8th April 1954, though his father submission is that they had to do this as a matter of compulsion. That being so and as the defendants had already submitted reasons why no attachment before judgment was called for in the circumstances of this case, the trial court should have at once proceeded to consider the validity of those reasons and then pass a proper order under rule 6 of O. 38 rather than pass the kind of order which it did. For the reasons mentioned above, I hold that the order of conditional attachment passed by the trial court on the 8th April, 1954, in this case was entirely irregular and must be set aside. I, therefore, allow this application, set aside the order of the courts below and hereby direct that the trial court shall proceed to dispose of the objections filed by the defendant to the plaintiffs' prayer for attachment before judgement, and thereafter pass an order under O. 38, r. 6 Cr. P. C. , in accordance with law. I make no order as to the costs of this revision as the respondents have not appeared in this Court. ;