Raman Nayar, J.:— The question we are called upon to answer and the bare facts necessary for the purpose appear from the order of the reference made by the Division Bench:

“The appellants in Criminal Appeal 173 of 1964 have been convicted of the offence of robbery of a bus K.L.K 2036 after it had been attached and was in the custody of the Amin, PW. 1, under an attachment warrant issued by the Subordinate Judge's Court, Kottayam the main question for decision in this case would be whether non-compliance of the provisions in O. 38 R. 5 has the effect of making the order ultra vires and void and the consequent attachment a nullity and whether in passing such an order there is total lack of jurisdiction as the decisions are not uniform and as the question involved is of considerable importance, we refer the above said question for decision to a Full Bench”

2. Presumably the Division Bench is of the view that if the order of attachment was void there could be no actual possession, whether lawful or unlawful, with the Amin or no dishonest intention on the part of the accused so that the alleged removal of the bus could not amount to theft. In a suit for money (O.S 107 of 1963 of the Sub Court. Kottayam) which he had brought against the 2nd accused in this case the plaintiff applied under Order XXXVIII R. 5 of the C.P.S.C 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 of warrant of attachment signed by the Judge himself has been duly proved and that has been marked as Ext. P-1 (b). A warrant of attachment under O. XXXVIII R. 5 should be in Form No. 5 of Appendix F of the Code. But the form actually used for Ext P-1 (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. XXI R. 30 for the at lachment of movable property in execution of a decree for money this form has been most clumsily adapted for the purposes of O. XXXVIII R5

3. It is headed (in Malavalam) 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. XXXVIII 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. XXII R. 8 of the Travancore CPC (O. XXI R. 30 of the CPC) has not been scored off then the warrant goes on to authorise the Amin to attach the properly specified in the accompanying schedule—Ex 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.

4. 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 of conditional attachment under O. XXXVIII R5(3) of the Code ??? 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 Order, XXXVIII R5 exist. But that perhaps, is no an essential requirement since the rule does not say that the satisfication should be record cd in writing

5. There is, however, the obligatory requirement of sub-rule (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 lake action under the rule or not to lake 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-rule (3) was not made, as that sub-rule requires it should be made, in an order under sub-rule (1) directing the defendant to furnish security or appear and show cause against furnishing security. And the condition that the property should be held under attachment until further orders from the court unless the suit claim is paid is altogether unauthorised.

6. There can be no doubt that Ext. P-1 (b) was an utterly wrong order, an erroneous or illegal order (in the sense that it was not in accordance with law). But that would not suffice to make it a void order, in the strict sense of that word, if the court had inherent jurisdiction, in other words, if it had jurisdiction over the parties and the subject-matter.

7. “When the record itself discloses the fact that the court had no jurisdiction of the controversy, or that jurisdiction of the person of the defendant did not attach in the particular case, the judgment is a mere nullity and may be collaterally impeached, by any person interested, whenever and wherever it is brought in question x x x x x x x

“It is also to be remarked that there is a clear distinction between those facts which involve the jurisdiction of the court over the parties and the subject-matter, and those quasi jurisdictional facts, without allegation of which the court cannot be set in motion, and without proof of which a decree should not be pronounced. In the absence of the former, the judgment of the court is void and may be attacked in collateral proceedings, while, in respect to the latter, it is conclusive, and cannot be questioned except on a direct proceeding.” (Black on Judgments, Second Edition, Vol I. para 278.).

8. As noticed by Black himself in para 170 and by de Smith (at p. 100 of his book on Judicial Review of Administrative Action) not a little obscurity has resulted from the circumstances that terms such as “void”, “voidable”, “invalid” and “illegal” are often used inter-changeably and the further circumstances, that even in juristic writing, expressions such as “void”, “jurisdiction” and “ultra vires” are used in different senses. A thing that is void in the strict sense of the word is a mere nullity and may be ignored even in collateral proceedings as if it never were. “Void ab initio” is the expression courts often use to make it clear that they mean “void” in the strict sense of the word and vet courts do often use the word, and even expressions such as “null and void” and “nullity”, as an emphatic way of saying that an order is so clearly illegal that it is to be readily set aside. Therefore, in cases where an order is directly attacked, the use of such expressions even by the highest tribunals is no certain indication of the real nature of the order — it might mean no more than that the order is voidable, or liable to be upset.

9. In its true sense the word, “jurisdiction' means inherent jurisdiction and yet it is often used, as in Section 115 of the CPC in a special sense as meaning what we might call compelency or in the language of Black, as connoting “those quasi-jurisdictional facts without allegation of which the court cannot be set in motion, and without proof of which a decree should not be pronounced”. The expression, “ultra vires” likewise, which strictly speaking implies an absence of jurisdiction, is often used to imply an absence of competency.

10. Hence the use of expressions such as “void”, “nullity”, “null and void”, “without jurisdiction”, and “ultra vires” in cases where the impugned order is under direct attack as in appeal or revision provides no safe guide for holding that the order is void in the strict sense of the word so that it is for all practical purposes non est and may he ignored in collateral proceedings.

11. The question really is not so much whether, as some decisions put it, the provisions of O. XXXVIII R. 5(1) are mandatory or merely directory even the breach of a mandatory provision does not necessarily make an order or judgment void though it would make it illegal, see Ittyavira Mathai v. Varkey Varkey, AIR 1964 SC 907 where the breach was of the mandatory provisions of Section 3 of the Limitation Act — but whether compliance with those provisions is a condition precedent for the assumption of jurisdiction or whether, on the other hand, the provisions merely lay down the manner in which the jurisdiction is to be exercised. If it is the former, non-compliance would make the order void; but, if the latter, non-compliance would only make the order voidable. The order would be liable to be set aside but, until that is done, it would be operative and cannot be ignored or collaterally attacked. On this question we do not think that we can do better than repeat what was said in Dhian Singh v. Secy of State, AIR 1945 Nag 97.

“Rule 5 of O. 38 of the CPC is intended for the protection of the person whose properly is sought to be attached before judgment. If he did not receive notice required by law and was consequently denied the privilege of staving off the attachment by the offer of security the injury would no doubt accrue to him but the law gives him a remedy by way of appeal under O. 43. R. 1(q) from such an irregular order to get it set aside…………In Jang, Bahadur v. Bank of Upper India Ltd.., AIR 1928 PC 162 their Lordships pointed out the difference between a matter of procedure and one of jurisdiction in these words:

‘This is a matter of procedure and not of jurisdiction the jurisdiction over the subject-matter continues as before, but a certain procedure is prescribed for the exercise of such jurisdiction. If there is non-compliance with such procedure the defect might be waived, and party who has acquiesced in the Court exercising it in a wrong way cannot afterwards turn round and challenge the legality of the proceedings.’

12. This is what was pointed out in Devidas v. Nilkanthrao ILR (1936) Nag 73 : (AIR 1986 Nag 157) following the various decisions of the Privy Council. It was clearly shown there that jurisdiction is entirely independent of the manner of its exercise. The distinction between the two is that error of judgment is reversible by the appellate court within a certain fixed time and is therefore voidable, whereas the usurpation of power is a mere nullity. The jurisdiction of the Court to attach property before judgment is indicated by the words ‘if so prescribed” in S. 94, and that condition is satisfied when rules are made to order attachment of any properly of the defendant the meaning of the expression ‘if so prescribed’ would be clear when they are compared with the words ‘subject to such conditions and limitations as may he prescribed’ occurring in Section 107 of the CPC ‘Prescribed’ means prescribed by rules (see Section 2(16) of the CPC) In the latter case if the rules prescribe any conditions or limitations as affecting the jurisdiction of the Court, the jurisdiction cannot arise unless the conditions or limitations are satisfied S. 94 merely says “so prescribed” and does not like S. 107 say “subject to conditions and limitations as may be prescribed”. Rules 5 and 6 of O. 38 bring into effect the jurisdiction that is conferred by S. 94 in so far as they make it clear that the Court has power to order attachment before judgment in the absence “of words such as those used in Section 107(i) of the CPC the other provisions made in Rs. 5 and 6 of O. 38 must be interpreted as laying down the manner in which the Court's jurisdiction is to be exercised, and accordingly regarded as dealing with matters of procedure regulating the mode of exercise of a jurisdiction that exists on this view any error in the manner of the exercise of the jurisdiction conferred by S. 94 would not affect the validity of the Court's act if the Court's jurisdiction is derived from a source independent of the provisions which merely prescribe the manner of its exercise”.

13. Other decisions taking the same view are B Prag Nath v. Mt. India Devi, AIR 1934 All 456, Dwarka Das Badri Das v. Siri Ram, ILR (1937) 18 Lah 756 : (AIR 1938 Lah 49) Awappan Pillay v. Govinda Kurup, 1949 Trav LR 141, Badri Prasad v. Babulal, AIR 1950 Cal 368 and Gaya Thakur v. Bhagwat Prasad, AIR 1963 Pat 286 With the contrary view taken or indicated in Abdul Karim v. Nur Mohammed, AIR 1920 Cal 526, Dular Singh v. Ram Chander, AIR 1934 All 165 and Rameshyvardaval v. Bheemsen, AIR 1951 Madh B 82(2) we are, with great respect, unable to agree. The remaining cases dealing with an attachment under the provisions of O. XXXVIII cited on behalf of the accused only lay down, what cannot be doubted, that an order of attachment without compliance with the provisions of R5 is it legal not that it is void.

14. The case considered in AIR 1945 Nag 97 was of an absolute attachment under R. 6 of O. XXXVIII without any attempt at compliance with the provisions of R. 5. Under the scheme of O. XXXVIII it is only after a direction has been issued under sub-rule (1) of R. 5 and the defendant has been given an opportunity to show cause that an absolute attachment can be made. But the conditional attachment under sub-rule (3) of R. 5 is to be ordered ex parte, before the direction under sub-rule (1) is communicated to the defendant, and before he has had an opportunity of showing cause a conditional attachment ordered under sub-rule (3) of R. 5 without complying with the provision of that rule therefore stands on a stronger footing than an absolute attachment order under R. 6 without such compliance.

15. We think a distinction must be diawn between a judgment or order of a court of law and an act such as an attachment, or a sale, or a search of the recording of a confession under Section 161 of the CPC performed by a court of other authority in exercise of statutory power in the latter case, where a power is given to do a certain thing in a certain way that might carry the implication that the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden or it might be that a particular step prescribed by a statute is an essential in-gredrent of the act itself in either case the act done without compliance with the statutory requirement would be legally ineffective and may therefore, be properly described as void, and, among other results, would be the result that resistance to such an act, involving unlawful invasion of private rights, would be no offence

16. But in the former case, then the judgment or order is within the jurisdiction of the court, it is effective until it is set aside however irregular or erroneous it might be and it cannot be impugned in collateral proceedings. If this distinction is borne in mind cases such as Nazir Ahmad v. King Emperor AIR 1936 PC 253(2), State of Uttar Pradesh v. Singhara Singh, AIR 1964 SC 358, Muthiah Chetty v. Palaniappa Chetty, AIR 1928 PC 139, Monoharlal v. Bengal Immunity Co., AIR 1945 Cal 308, Venkaleswara Ettu Naicker Ayyammal, AIR 1950 Mad 367, Eravi Pillai v. Maluk Mohammad, AIR 1953 Tray Co. 494 (FB), Srikakula Chinna v. Pannapali Elias, AIR 1954 Mad 1024 and State Of Rajasthan v. Rehman , AIR 1960 SC 210 on which such strong reliance is placed on behalf of the accused will be found to have no real hearing on the question we are considering.

17. Our attention has been drayvn to the observation in paragraph 13 of the report in Chandra Deo v. Prokash Chandra, AIR 1968 SC 1430 to the effect that failure to record reasons as enjoined by Section 203 of the Cr PC before dismissing a complaint under the provisions of that section is an error going to the root of the matter and that it is possible to say that the absence of reasons would make the order a nullity.

18. Their Lordships did not actually pronounce the order a nullity — what they did was to set it aside. What they said was that it was possible to say so and we venture to think that the word, “nullity” was used to indicate not that the order of dismissal was void strictosensu and therefore non est, but that there was an illegality going to the root of the matter not a mere error, omission or irregularity which could be cured under Section 537 of the Cr PC.

19. Our answer to the question is that the order of attachment in this case, though erroneous and liable to be set aside to appropriate proceedings, Is an order made with jurisdiction and is not a nullity. It cannot be ignored or subjected to attack in collateral proceedings.

DJ/VSB/D.V.C

20. Answer accordingly.