Seetharam Reddy, J.:-

(1) This civil miscellaneous appeal is preferred against an order of the 5th additional judge, city civil court , hyderabad, made on 31 - 7 - 79 in i. A. No. 1050 of 1978 in o. S. No. 1059 of 1978, filed by the defendants 1 and 2, the appellants herein, against the respondents 1 and 2 who are the plaintiff and the 3rd defendant respectively.

(2) The brief facts that led to the filing of i. A no. 1050 of 1978 are: the 1st respondent (plaintiff - firm) filed the suit against the appellant and the 2nd respondent for recovery of a sum of rs. 1,23, 400 - 88p. With interest at 12 per cent per annum on the ground that the plaintiff - firm obtained cash credit facility for rs. 3,00,000. 00 from their bankers to accommodate one late y. C. Reddi for his business in stainless steel. A cheque was issued in favour of m/s. Vijaya traders, the sole proprietary concern of y. C. Reddi, and the same was encashed. Y. C. Reddi, pledged stainless steel material with the plaintiff - firm on 7 - 5 - 1976; and the plaintiff - firm in turn , pledged them with their bankers on cash credit loan account and some amount were paid thereafter by the said y. C. Reddi, during his lifetime and they have yet to recover a sum of rs. 1,23,400 - 88 p. Y. C. Reddi died on 2 - 3 - 1978. After his death, they demanded the appellants who are said to be the wives of y. C. Reddi. ; but there was no response. The plaintiff further alleged that the 3rd defendant, by his letter dated 4 - 10 - 1978, informed the plaintiff - firm that y. C. Reddi executed a will on 22 - 1 - 1978 at madras appointing him as the sole executor to discharge the liability and pay the residue , if any, to his wives and that he filed an application for probate of will of late y. C. Reddi in the madras high court and finally he requested the plaintiff not to rush to the court.

(3) Along with the suit, the plaintiff filed i. A. Nos. 1050 and 1051 of 1978. The former is for attachment before judgment of the movable property, namely , water meter machinery mentioned in the schedule to the petition, located in a factory at saroornagar, hyderabad, owned by y. C. Reddy and the latter is for the appointment of an advocate commissioner to take an inventory of the said machinery and take possession of the same. The court ordered notice in i. A. No. 1050 of 1978, and appointed an advocate. Commissioner in i. A. No. 1051 of 1978, on 29 - 12 - 1978 to take inventory of the machinery and to take possession of the same. Pursuant to the said order, the advocate - commissioner took possession of the factory and locked the same. Aggrieved by the same, the appellants filed c. R. P. No. 43 of 1979 in this court which , by its order dated 3 - 1 - 1979 in c. M. P. No. 73 of 1979 , suspended the said order in the following terms:

"there shall be a suspension of the order of the lower court subject to the following conditions: (i) that the commissioner appointed to take inventory will complete his job by taking full inventory and the petitioner undertakes to give all help and co - operation. (ii) the petitioner will be permitted to run his factory. (iii) the petitioner undertakes not to alienate any part of the machinery of the factory"

. Accordingly, the appellants have been running the factory.

(4) In so far as i. A. N. 1505 of 1978 is concerned, notices were issued in printed forms. The heading of the notice is: "notice to show cause (general from) ". The body of the notice reads:

"whereas the above named petitioner has made application to this court under order 38, rule 5 and section 151, civil p. C. You are hereby warned to appear in this court in person or by an advocate duly instructed on the 30th dec. 1974 at 11 a. M. To show cause against the application failing wherein the said application will be heard and determined ex parte."

In the notice issued to the 1st defendant, in addition to what has been extracted above, the words "to furnish security" appear after "section 151, civil p. C. " along with the said notices, two affidavits one by baby shankar said to be one of the partners of the plaintiff - firm and the other a third party affidavit of ram bilas tapadia, were also sent. The sum and substance of these two affidavits is that the appellants or their representatives are trying to remove the machinery from the factory premises to their houses in order to dispose of the same and that the said ram bails tapadia offered to purchase the same for 1 1/2 lakhs of rupees provided the appellants can get clear title regarding the property. However, appearance was filed on behalf of the defendants on 30th dec. 1978 and time was taken for filing counters to i. A. No. 1050 of 1979. The matter was adjourned from time to time till 31 - 7 - 1979. However , no counter was filed by them. On 31 - 7 - 1979, counter - affidavit on behalf of the 3rd defendant was filed wherein, while generally supporting the case of the plaintiff, it is stated that the defendants, through their agents , sold away even immoveable property worth about rs. 1,25,000. 00 for only rs. 50,000. 00 and also an imported fiat car was sold away by the 2nd defendant to one of the power agents by obtaining fraudulently a duplicate c certificate from the regional transport authority as the "c" certificate of the said car was actually with him. It is also stated that the defendants are making attempts to sell the house of late y. C. Reddi, at ashoknagar. Further, the defendants 1 and 2 through their agents forcibly took possession of the water meter and the factory machinery, and the inventory list filed by the commissioner does not tally with the list given by the agent of the defendants. The appellants while controverting, inter alia, stated that the will, which is not registered, is a forged one and that the 3rd defendant, in collusion with the plaintiff , is intent upon causing detriment to the interests of the appellants.

(5) On 31 - 7 - 1979, the advocate for the defendants did not appear and, therefore, the defendants 1 and 2 were set ex parte and thereafter, the impugned order was passed.

(6) The impugned order is challenged on two grounds: first , the order which is passed under rule 6 of o. 38, civil p. C. Is bad because it is not in compliance with rule 5 of order 38. The order is purported to be under rule 6 and that too, placing reliance on the counter filed by the 3rd defendant and not on the original affidavits filed on 29 - 12 - 1978; whereas the substance of the counter contention is that the impugned order is passed under rule 5 of order 38, and not under rule 6 of order 38, and therefore, the same is in compliance with rule 5, and even if it is to be reckoned as one passed under rule 6, this court cannot interfere with the discretionary order unless it is perverse. Secondly, the impugned order is the result of overall appreciation of the material which was on record and not necessarily the one based on the affidavit filed by the 3rd defendant.

(7) Before appreciating and analysing the arguments, the contents of the impugned order, which are brief, may usefully be extracted: -

"heard: in the counter of respondent no. 3, it is stated by respondent no. 3 that some immoveable properties and fiat car were sold after the suit was filed, as respondents no. 1 and no. 2 who are the widows of late y. C. Reddy have not chosen to file their counter despite time was granted to them on several occasions, i think there is case made out for the attachment of the moveable properties to protect the interest of the petitioner, who is a creditor. No security is furnished by the respondents 1 and 2 so far. In this view of the matter conditional attachment is ordered. Conditional attachment of moveables by 17 - 8 - 1979."

We may also notice the provisions laid down under both rules 5 and 6 of order 38, civil p. C. : rule 5: -

"where defendant may be called upon to furnish security for production of property. (1) where , at any stage of a suit, the court is satisfied , by affidavit , or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him,. (a) is about to dispose of the whole or any part of his property, or (b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the court. The court may 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 such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security. (2) the plaintiff shall, unless the court otherwise directs, specify the property required to be attached and the estimated value thereof. (3) the court may also in the order direct the conditional attachment of the whole or any portion of the property so specified. (4) if an order or attachment is made without complying with the provisions of sub - rule (1) , of this rule such attachment shall be void."

Rule 6: -

"attachment where cause not shown or security not furnished. (i) where the defendant fails to show cause why he should not furnish security, or fails to furnish security required within the time fixed by the court, the court may order that the property specified, or such portion thereof as appears sufficient to satisfy any decree which may be passed in the suit, be attached. (ii) where the defendant shows such cause or furnishes the required security and the property specified or any portion of it has been attached, the court shall order the attachment to be withdrawn, or make such other order as it thinks fit."

(8) Sub - rule (1) of rule 5 has three distinct components: (1) where, at any stage, of a suit, the court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him, is (a) about to dispose of the whole or any part of his property, or (b) about to remove the whole or any part of his property; (2) the court may direct the defendant, within a time to be fixed, 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; or (3) to appear and show cause why he should not furnish security.

(9) Now, under sub - rule (4) rule 5, any order of attachment without compliance with the provision of sub - rule (1) shall be void , so, before any order of attachment is made the court must satisfy itself that the defendant is about to dispose of or remove the whole or part of his property. See nowroji (sardar) pudumji v. Deccan bank ltd. (1921) ilr 45 bom 1256, senaji kanpurchand v. Pannaji devichand (1922) ilr 46 bom 431, and the judgment dated 18 - 4 - 1972 in c. M. A. No. 318 of 1971 by bench of this court. Secondly, this satisfaction must be derived from some material on record either by way of affidavit or otherwise; it cannot be whimsical not could it be illusory and it should also be based on clear and convincing proof on enquiry that the order is needed for the protection of the plaintiff. Not only that, the court must insist upon the strict proof of the allegations made in the affidavit. See bedanand rai v. Nobokumar singh, air 1938 pat 161, premraj v. Maneck gazi, air 1951 cal 156, natraja v. Bangaru air 1965 mad 212, and the judgment dated 18 - 4 - 1972 in c. M. A. No 318 of 1971 by a bench of this court.

(10) Bearing in mind the above stated principles, we will just examine in brief whether the compliance of rules 5 and 6 of o. 38, civil p. C. Had been made. Notice dated 29 - 12 - 1978 along with the two affidavits as stated earlier, was issued under o. 38 rule 5 (1) to furnish security. This is so even according to the learned counsel for the 2nd respondent. The notice was issued stating that the consequential order will be made on the very following day, namely. 30th december 1978 if the parties fail to appear. Nothing transpires from the said notice and in the absence of any other order accompanying the said notice by the court, that any due satisfaction was arrived at either with regard to the disposal of the property or with regard to the removal of the whole or part of the said property. There was no evidence let in excepting the couple of affidavits referred to above and much less any enquiry which could clearly convince that the order contemplated under the said rules is needed for the protection of the plaintiff and even in those two affidavits, what all has been averred is that the appellants through their agents are trying to dispose of the property. Even from the 3rd party affidavit the position that emerges is that the machinery is said to have been offered for sale and the response by him was that he is prepared to purchase provided there was a clear title regarding the said property. Surely these cannot be the circumstances warranting the issuance of an order under rr. 5 and 6 of order 38, civil p. C. See premraj v. Maneck gazi (supra) , durga das v. Nalin chandra, air 1934 cal 694 and nowroji (sardar) pudumji v. Deccan bank ltd. (supra).

(11) Now the impugned order passed on 31 - 7 - 1979 which in our judgment, is one passed under rule 6, order 38, our view gets reinforced in particular , by the sentence used therein "no security is furnished by respondents 1 and 2 so far" this provides a sufficient clue to the effect that the notice which was issued on 29 - 12 - 1978 containing a direction for furnishing security was not complied with and therefore, the impugned order has been passed. Though in the impugned order the words "conditional attachment is ordered" and "conditional attachment of moveables by 17 - 8 - 1979" do occur, it is irresistible that the said order is one under rule 6 of o. 38, because the main base is with regard to default in furnishing security and therefore, the consequential order was sought to be based rule 6.

(12) There is yet another aspect of the impugned order. From a reading of the order it becomes at once clear that the order is predominantly based on the affidavit filed by the 3rd respondent. If this order is, according to the learned counsel for the 2nd respondent, only under rule 5 of order 38, then no opportunity was given to the defendants. Secondly it is incumbent upon the court to arrive at the satisfaction of the allegations made in the affidavit of the 3rd respondent. The said affidavit, admittedly, was filed on 31 - 7 - 1979 itself. No opportunity was accorded to the defendants, though they were not said to be present and no enquiry was conducted and in the absence of any positive testimony, at the same hour on the same day, the order has been made. This again will be indicative of doing violence to the language employed in r. 5 (1) of o. 38. Therefore, it could be bad. In any view of the matter the impugned order cannot stand a moments scrutiny. Be that as it may, the composition and the contents cumulatively establish the fact, as stated earlier, that the impugned order is one under rule 6.

(13) From the foregoing , it is manifest that the impugned order has been passed by the court below on whims and fancies and has no nexus to the provisions enacted in rules 5 and 6 of order 38. It is now well settled that before any order of attachment before judgment is passed, the court has to satisfy itself on the basis of proof positive that the defendant is with intent to obstruct or delay the execution of any decree that may be passed against him , either 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. It is then, the court will pass an order directing the defendant within certain time to be fixed , either to furnish security in such sum as may be specified, or to appear and show cause as to why he should not furnish security. What, therefore, becomes apparent is that before the court gives a mandate calling upon the defendant to do one or the other thing, the condition precedent being the satisfaction to be arrived at with regard to one or the other, viz. , either the defendant is about to dispose of the property or to remove the property. From the order, it cannot be made out that there has been any exercise of mind in the direction , which the provisions of the rule contemplate. The impugned order, to say the least. Is mechanical inasmuch as rule 6 (1) says

"where the defendant fails to show cause why he should not furnish security , or fails to furnish security required"

and since security was not furnished as per the previous notice dated 29 - 12 - 1978, the impugned order of attachment has been effected. In fact the bailiff to whom separate orders were issued on the very day. , informed the manager and without any notice whatsoever to the defendants, attached the machinery and other movables and kept the same under lock and seal. This is yet another positive circumstance indicative of the fact that the order was passed under rule 6. Hence the impugned under rule 6. Hence the impugned order, in our judgment, is not only perverse but one based on wrong principles, eminently warranting interference.

(14) In view of the above, we have no hesitation to hold that the impugned order of attachment is void because of non - compliance of the provisions of sub - rule (1) of rule 5 of order 38, and the same is set aside the c. M. A. Is allowed accordingly. No costs.

(15) Appeal allowed.