MADHAVAN PILLAI SOMANATHA PILLAI Vs. STATE OF KERALA

JUDGEMENT

(1.) The question we are called upon to answer, and the bare facts necessary for the purpose, appear from the order of reference made by the division bench:

(2.) In a suit for money (OS 107 of 1963 of the Sub Court, Kottayam), which he had brought against the 2nd accused in this case, the plaintiff applied under O.38 R.5 of the Civil Procedure Code for the attachment before judgment of a bus belonging to the 2nd accused. Attachment was ordered, but neither the application made for the purpose nor the order thereon is in evidence although one should have thought that those would be among the first things the prosecution would prove. However, the actual order or warrant of attachment signed by the judge himself has been duly proved and that has been marked as Ext. P1(b). A warrant of attachment under O.38 R.5 should be in Form No. 5 of Appendix F of the Code. But the form actually used for Ext. P1(b) was the Malayalam form prescribed under the old Travancore Civil Procedure Code corresponding to Form No. 8 of Appendix E of the Code which is the form for a warrant under O.21 R.30 for the attachment of movable property in execution of a decree for money. This form has been most clumsily adapted for the purposes of O.38 R.5. It is headed, "DS³ P]vXn D¯-chv" which literally means, "Order of immediate attachment", but is the expression in use for a conditional attachment - usually referred to as an interim attachment - under O.38 R.5(3). The number and other particulars of the suit in which the warrant is issued are furnished. But the provision of law given in the printed form, namely, O.21 R.28 of the Travancore Civil Procedure Code (O.21 R.30 of the Civil Procedure Code) has not been scored off. Then the warrant goes on to authorise the Amin to attach the property specified in the accompanying schedule - Ext. P. 2(a) is the schedule - namely, the bus belonging to the defendant, for the decree that may be passed in the suit in the plaintiff's favour, and, unless the amount claimed in the suit and the costs (both of which are specified) are paid to him, to hold the property until further orders from the court.

(3.) There is evidence to prove that there was a suit for money (O. S. No. 107 of 1963 of the Sub Court, Kottayam) against the 2nd accused, that the plaintiff therein applied for the attachment before judgment of the 2nd accused's bus and that it was on that application that the order, Ext. P 1(b), was made. As we have seen Ext. P 1(b) is headed "Order of conditional attachment" and it says that the attachment is in respect of the decree that may be passed in favour of the plaintiff. It is therefore clear that the order is an order of conditional attachment under O.38 R.5(3) of the Code. It is equally clear that it was made in utter disregard of the law. It does not say that the court is satisfied that the grounds necessary for making an order under O.38 R.5 exist. But that, perhaps, is not an essential requirement since the rule does not say that the satisfaction should be recorded in writing. There is, however, the obligatory requirement of sub-r.(1) of the rule that the court should make an order directing the defendant either to furnish security or to appear and show cause why he should not furnish security - the "may" of the sub-rule only means that it is within the discretion of the court to take action under the rule or not to take action; but, if it decides to take action, then it must make the direction contemplated - there is no discretion in that matter. It does not appear that any such direction was issued, and, in any case, the direction for conditional attachment under sub-r.(3) was not made, as that sub-rule requires it should be made, in an order under sub-r.(1) directing the defendant to furnish security or appear and show cause against furnishing security. And the condition that the property should beheld under attachment until further orders from the court unless the suit claim is paid is altogether unauthorised.