L NARAYANA REDDY Vs. CANARA BANK

JUDGEMENT

(1.) In this Civil Revision Petition the laconic order of the Subordinate Judge at Jangaon in I.A. No. 313 of 1990 in O.S. No. 31 of 1990 dated 25-10-1990 is questioned. That application was made by the 1st respondent herein under Order XXXVIII Rule 5 read with Section 151 C.P.C. to attach before judgment the petition schedule property of the petitioners herein who are the defendants in the suit and the Subordinate Judge allowed it by the following order :

(2.) The Subordinate Judge has failed to see that Rule 5 or any other Rule of Order XXXVIII does not provide for any interim conditional attachment. This is made clear by Seetharam Reddy, J., in Nullimarla Jute Mills Co. Ltd. vs. Sree Mahaveer Rice & Oil Mills as follows :-

(3.) Sub-rule (1) of Rule 5 of Order XXXVIII C P.C. provides that the Court after the satisfaction specified therein is reached, "may direct the defendant, within a time to be fixed by the either to furnish security, in such 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". Sub-rule (3) of the said Rule 5 provides that while giving such directions to the defendant, the Court may also in the order direct the conditional attachment of the whole or any portion of the property so specified. From a reading of sub-rules (1) and (3) of the said Rule 5, it is apparent that the Court will have to direct the defendant to do one or the other of the two: (i) to furnish security for a sura specified in the order within the time specified in the order, or (ii) to appear and show cause why he should not furnish security; and while giving one or the other of such directions, the Court may also direct Conditional attachment' of the property or any part of it. Analysing the said Rule 5, Syed Shah Mohd. Quadri, J., observed in M. Venkaiah Naidu vs. V. Neelavenamma as follows :