JUDGMENT
1. In this civil revision petition at the instance of the defendant in O.S No. 426 of 1982, II Additional City Civil Court, Madras, the principal question that arises for consideration is, whether the order of attachment passed by the court below accords with the provisions of O. 38. R. 5, C.P.C as amended by Act 104 of 1976 and is valid or is vitiated and void.
2. The suit in O.S 426 of 1982 was laid by the respondent herein against the petitioner for the recovery of a sum of Rs. 66,468.15 with further interest and other incidental reliefs. In I.A No. 1209 of 1982 filed on 22nd January, 1982 under O. 35, R. 5, C.P.C, the respondent prayed for an order of attachment before judgment of two items of immovable properties belonging to the petitioner. In the affidavit in support of that application, the respondent after referring to the circumstances leading up to the institution of the suit for the recovery of the amounts from the petitioner, stated that the petitioner is in highly involved circumstances and that she has no other property except the two items of immovable properties and further that with a view to defeat and delay himself and other creditors, the petitioner was attempting to dispose of the properties, which, if not prevented, would result in serious prejudice to the respondent as well as other creditors. The respondent also stated that the petitioner had declared her inability to pay the amount as she was in financially helpless circumstances and that, therefore, an order of interim attachment of the immovable properties should also be passed. On 25th January, 1982 an order was passed by the court in the following terms:—
“Heard,. Interim attachment and notice 10th February, 1982.”
Even on 8th February, 1982, the petitioner filed a counter-affidavit in opposition to the application for attachment before judgment made by the respondent and on 10th February, 1982, it was reported to Court that notice has been served on the petitioner and the property has also been attached, and the filing of the counter by the petitioner was also noted by the court and the matter was posted for enquiry to 26th February, 1982, from which date it was adjourned to several other dates till it was finally posted to 1st April, 1982. Meanwhile, the respondent took out another application in I.A 1448 of 1982 to amend I.A 1209 of 1982, by including two more items of properties for attachment before judgment.
3. That application as well as I.A 1209 of 1982 were dealt with together and the II Additional Judge, City Civil Court, Madras was of the view that as the respondent had the benefit of a charge over a picture and had not in any manner relinquished such a right, the property already attached in I.A 1209 of 1982 would suffice to meet the suit claim and, therefore, the application for amendment filed by the respondent in I.A 1448 of 1982 was dismissed as unnecessary. Dealing with I.A 1209 of 1982. the learned II Additional Judge, City Civil Court, Madras, proceeded to dispose of that application in the following manner:
“The only objection raised by the respondent (petitioner in the civil revision petition) (words in brackets mine) is that, she was not given show cause notice before attachment is ordered to furnish security. In every order of attachment before judgment, if security is furnished, the attachment is not effected. Hence I.A 1209 of 1982, is allowed and the attachment already effected is made absolute.”
It is the correcss of this order that is challenged in the above civil revision petition.
4. The principal contention of the learned counsel for the petitioner is that there has been no compliance at all with the procedural requirements under O. 38, R. 5(1) C.P.C, and that, therefore, the attachment made is void in view of O. 38, R. 5(4), C.P.C Further, the learned counsel also contended that there is no power in the court to order a conditional attachment without giving notice to the defendant and giving an opportunity to the defendant to furnish security or to place at the disposal of the court such property or portion thereof as may be specified in the order and sufficient to satisfy the decree, or to appear and show cause why the defendant should not furnish security. On the other hand, the learned counsel for the respondent submitted that the requirements of O. 38, R. 5(1), C.P.C, have been satisfied in that a notice in the usual form had been given to the petitioner and that she had appeared and shown cause against the attachment before judgment and, therefore, she cannot complain of any prejudice by the course adopted by the court. Further, it was contended that in an application under O. 38, R. 5(1), C.P.C, the court had always the power to pass an order for conditional attachment as provided under O. 38, R. 5(3), C.P.C Stress was laid by the learned counsel upon the need for the court exercising its powers of conditional attachment under O. 38, R. 5(3), C.P.C, in appropriate cases; as otherwise, it may happen that by the time the notice is served on the defendant and he or she appears before court to show cause, he or she might have disposed of all or substantially all his or her properties and that would render the plaintiff absolutely helpless and without any remedy whatever when a decree is obtained and therefore, to avoid that, the powers conferred upon court under O. 38, R. 5(3), C.P.C, should be exercised by passing orders for conditional attachment and that the rule does not preclude the court from exercising such a power along with an order for notice to the defendant calling upon him or her to comply with the requirements of O. 38, R. 5(1), C.P.C In other words, the learned counsel submitted that the power of conditional attachment under O. 38, R. 5(3), C.P.C, is always available in the court to be exercised at the time of the issue of a notice to the defendant under O. 38, R. 5(1), C.P.C, depending upon the facts as well as the circumstances of the case.
5. Before embarking upon a consideration of these submissions, it is necessary to bear in mind the relevant provisions of the Code of Civil Procedure as well as the changes made therein by Act 104 of 1976. S. 94(b), C.P.C, is the substantive statutory provision conferring power on the court to direct the defendant to furnish security, to produce any property belonging to him or her and to place the same at the disposal of the court or order attachment of any property. Such a power has been conferred on the court in order to prevent the ends of justice being defeated. Prior to the changes introduced by Act 104 of 1976 O. 38, R. 5, C.P.C, read as under—
(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.
The Law Commission, in its fifty-fourth report (pages 271…272) with a view to set at rest a judicial divergence whether the non-fulfilment of the requirements of O. 38, R. 5(1), C.P.C, would have the effect of making the order passed ultra vires and void and the consequent attachment a nullity or whether if such an order is passed, it would be one which totally lacks jurisdiction or whether the attachment, though erroneous and liable to be set aside in appropriate proceedings, is one without jurisdiction and not a nullity, noticed the ratio of the conflicting decisions in Madhavan v. State . A.I.R 1966 Ker. 212., Ittyavira Mathai v. Varkey . A.I.R 1964 S.C 907., Abdul Karim Dhali…Plaintiff v. Nur Mohammed…Defendant . . A.I.R 1920 Cal. 526., Dular Singh v. Ram Chande . A.I.R 1934 All 165., and Sri Krishna Gupta v. Ram Babu . A.I.R 1977 All 136., and recommended a clarification in the nature of a sub-rule, to O. 38, R. 5, C.P.C, which was characterised by the Law Commission as a badly needed one, to the effect that an attachment which does not comply with the requirements of O. 38, R. 5(1), C.P.C, and is effected without the notice as required by the law being given to the defendant resulting in a denial of privilege of staving off the attachment by the offer of security, should be declared void. Consequent to this recommendation of the Law Commission, by S. 85 of Act 104 of 1976, O. 38, R. 5(1), C.P.C, was inserted with effect from 1st February, 1977. The Statement of Objects and Reasons for the introduction of this sub-S. (4), vide the Gazette of India, Extraordinary Part II, S. 2, dt. 8th April, 1974 reads as under:—
“There is divergence of opinion between the High Courts as to whether an attachment made before judgment without complying with the procedure specified in R. 5 is a nullity or is voidable. R. 5 is intended for the protection of the person whose property is sought to be attached before judgment. If he does not receive the notice required by law, and is thus denied the opportunity of preventing the attachment by the offer of security an injustice would accrue to him. R. 5, is, therefore, being amended to clarify that, where the attachment is made without complying with the procedure laid down in R. 5, such attachment shall be void.”
In the Bill, the provision (O. 38, R. 5(4) stood as under:
“Any attachment made under this rule shall be void if it is not made in the manner specified in this rule.”
and finally, it emerged as follows—
“if an order of attachment is made, without complying with provisions of sub-R. (1) of this rule, such attachment shall be void.”
Thus, the genesis of O. 38, R. 5(4), C.P.C, clearly demonstrates that it was a protective measure conceived in the interest of a defendant and intended to invalidate orders of attachment before judgment of his or her properties passed indiscriminately without notice giving an opportunity to stave off the attachment by the offer of security and without rigidly conforming to the requirements of O. 38, R. 5, (1), C.P.C
6. The essential requirements for invoking the power of court to effect an attachment under O. 38, R. 5(1), C.P.C, are that the Court must be satisfied that the defendant is about to dispose of the whole or any part of his or her property, or the defendant is about to remove the whole or any part of his or her property from the local limits of the jurisdiction of the court and the defendant is intending so to do with a view to cause obstruction or delay the execution of any decree that may be passed against him or her. It is incumbent that the plaintiff should state precisely the grounds on which the belief or apprehensions are entertained that the defendant is likely to dispose of or remove the property. It may even be necessary in some cases to give the source of information and belief. A mere mechanical repetition of the provisions in the Code or the language therein without any basic strata of truth underlying the allegation or vagus and general allegations that the defendant is about to dispose of the property or remove it beyond the jurisdiction of the court totally unsupported by particulars would not be sufficient compliance with the first part of O. 38, R. 5, (1), C.P.C
7. In this case no such particulars have been given and the order extracted earlier does not make out that the court bestowed any attention on these aspects and was satisfied that the defendant was, with a view to defeat or cause obstruction or delay the execution of any decree, about to dispose of the whole or any part of her property or even to remove the whole or any part of her property from the local limits of the jurisdiction of the court Thus, the primordial requirements of O. 38, R. 5, (1), C.P.C, have not been satisfied.
8. In addition there is a o a further serious infirmity in the method and the manner in which the order or attachment had been passed by the court below. It is seen from the notice served on the petitioner that it is neither in conformity with the requirements of the latter part of O. 38, R. 5(1), C.P.C nor does it incorporate the contents of the notice in Form No. 5 in Appendix F, which sets out as nearly as possible, the requirements under O. 38, R. 5(1), C.P.C From the notice served on the petitioner in this case, it is seen that the petitioner had not been directed to furnish any security in such sum as may be specified. Nor has the petitioner been directed to produce and place at the disposal of the court, when required, the property or the value of the property specified, or such portion thereof as may be sufficient to satisfy the decree. Besides, the petitioner has not been asked to appear and show cause why she should not furnish security. Thus, the notice issued to the petitioner in this case is defective and does not conform to the requirements of O. 38, R. 5(1), C.P.C No doubt, there has been a specification of the property required to be attached as well as the estimated value thereof and that would only be partial compliance with O. 38, R. 5(2). C.P.C In dealing with the applications for attachment before judgment, it is the first and foremost duty of the court to be satisfied from the particulars made available that the defendant is about to dispose of the whole or any part of his or her property or he or she is about to remove the whole or any part of his or her property from the local limits of the jurisdiction of the court with a view to delay or defeat or obstruct the execution of any decree that may be passed against him or her. Therefore, the court should issue a notice in an appropriate Form conforming to the requirements of O. 38, R. 5(1), C.P.C and setting out the details specified there under to the defendant; within a time to be fixed by it, either exiling upon him or her to furnish security in such sum as may be specified in the order or to produce and place at the disposal of the court the property so specified in the application or the value of the same, or even such position thereof as may be sufficient to meet the decree, or the notice may merely direct the defendant to appear and show cause why he or she should not furnish security for the amount claimed in the suit. No particular Form of notice in use for this purpose has been brought to the notice of the court except the one in Form No. 5 in Appendix F, which is really addressed to the bailiff by the the court. It is, therefore, imperative in view of O. 38, R. 5(4), C.P.C that a notice on the lines of Form No. 5 in Appendix F with the necessary changes conforming to the requirements of O. 38, R. 5(1). C.P.C should be prescribed for use. No doubt, the use of the word ‘may’ in the latter” part of O. 38, R. 5(1), C.P.C may at first blush mike it appear that the issue of a notice in compliance with the requirements of O. 38, R. 5(1), C.P.C is discretionary, but at the same time if it is not so done, O. 38, R. 5(4). C.P.C declares such an attachment effected pursuant to such noncompliance as void. It is, therefore, essential to strictly conform to and comedy with the requirements of O. 38, R. 5(1), C.P.C as otherwise, the order of attachment, if made and ejected in violation of the requirement, would be of no legal consequence, and worth only as a waste paper Therefore it is, it becomes necessary that this matter also should engage the time and attention of the Rules Committee for prescribing an appropriate form of notice especially in view of the amendment introduced to O. 38. R. 5, C.P.C by Act 104 of 1976.
9. Then occurs O. 38, R. 5(1), C.P.C under which the court may consider directing a conditional attachment of the whole or any portion of the property specified. This is quite reasonable and understandable as well. If O. 38, R. 5(1) and (3), C.P.C are so construed as to mean that in all cases, any order of attachment can be passed only after the defendant appears and furnishes security or otherwise makes arrangements to the satisfaction of the court to meet the liability under the decree that may be eventually passed, in response to a notice issued under O. 38, R. 5(1), C.P.C then that would result in the defendant being enabled to defeat the very power of the court to attach and also afford protection by the process of attachment and even the very decree that may be eventually passed, by resorting to dilatorytactics resulting in his or her not receiving the notice at all and by disposing of all his properties meanwhile. With a view to safeguard the interest of a plaintiff during the interregnum between the filing of the application for an order of attachment and the service of notice on the defendant and his or her appearing in response to that with reference to matters mentioned in the notice and showing cause, etc., the court is empowered under O. 38, R. 5(1), C.P.C, to direct a conditional attachment of the whole or any of portion of the property specified in the application for attachment. In this connection, the language of O. 38, R. 5 (3), C.P.C, should also be borne in mind. The expression used therein is ‘conditional attachment’ and that would mean that it is not an absolute attachment, but only in the nature of a dependent attachment or an attachment which would ensure and depend upon certain conditions, namely, the defendant appearing and showing cause or not. In other words, such a conditional attachment would be operative during the interregnum or the intervening time. If it were not so, the defendant can, meanwhile, part with all his or her valuable properties, pending receipt of a notice under O. 38, R. 5(1), C.P.C, and the court as well as the plaintiff, who may be successful eventually, would be left helpless high and dry and justice would be defeated, to prevent which the power of attachment is conferred on courts under S. 94(b), C.P.C, to be exercised in conformity with and after satisfying the requirements of O. 38, R. 5(1) and (3), C.P.C That is why the power to direct a conditional attachment of the whole or any portion of the property is also made available under O. 38, R. 5(3) C.P.C, which can be exercised by the court while passing an order under O. 38, R. 5(1), C.P.C It is easy to perceive the spirit and the object behind O. 38, R. 5(1) and O. 38, R. 5(3), C.P.C In an application for attachment before judgment, the court, if satisfied that the requirements of O. 38, R. 5(1), C.P.C, have been made out, may issue a notice to the defendant in appropriate Form conforming to the requirements of O. 38, R. 5(1), C.P.C, for all or any of the purposes mentioned therein and at the same time direct a conditional attachment of the whole or any part of the property under O. 38, R. 5(3), C.P.C If, in response to such a notice, the defendant appears and shows cause, or otherwise satisfies the court, then the court may proceed to withdraw the attachment effected earlier, under O. 38, R. 6(2), C.P.C If, on the other hand, the defendant does not show cause why he or she should not furnish security or fails to furnish security, then it will be open to the court to proceed under O. 38, R. 6(1), C.P.C, and the court may order attachment of the property specified in the application or such portion thereof, as appears sufficient to satisfy any decree that may be passed, in the suit, in the appropriate form, namely, Form 7-A in Appendix F.
10. Thus, a careful consideration of the provisions of O. 38, R. 5(1) to (4) and O. 38, Rr. 6(1) and (2), C.P.C, clearly bring out the real intention and purport as well as the scope of these provisions. The primary object of these provisions is no doubt to see that an order of attachment before judgment is not not secured indiscriminately on insufficient grounds, but at the same time, it is also manifest that the defendant must be, wherever possible, given an opportunity to stave off an attachment of his or her property. The requirements under O. 38, R. 5(1), C.P.C, have been designed only with this view and the notice issued thereunder has also to strictly conform to the requirements of O. 38, R. 5(1), C.P.C If the attachment is effected without rigidly conforming to the requirements of O. 38, R. 5(1), C.P.C, and fulfilling them, O. 38, R. 5(4), C.P.C, declares such an attachment as void. In this case, as seen earlier, there has been no compliance either in letter or spirit with the earlier part or even the latter part of O. 38, R. 5(1), C.P.C, and under O. 38, R. 5(4) C.P.C, the attachment effected would be void and the order of the court below cannot be sustained. Accordingly, it is set aside and the civil revision petition is allowed. There will be no order as to costs.
11. Before parting with this case, it is necessary to place on record the valuable assistance rendered to the court by Mr. V.C Sri Kumar and Mr. G. Subramaniam, Advocates who appeared as Amicus Curiae and placed all the relevant materials before court.
VCS.