AVINASH CONSTRUCTIONS SECUNDERABAD Vs. P USHA RAO

JUDGEMENT

(1.) Heard learned Counsel for the parties and with their consent this revision petition is disposed of at this stage.

(2.) It appears that the present petitioners are Defendants 1 and 2 in the suit in O.S. No.296 of 2004 on the file of III Senior Civil Judge. City Civil Courts, Secunderabad. An application came to be filed under Order 38, Rule 5 of C.P.C. by the plaintiffs. Defendants 1 and 2 had already filed a caveat. Admittedly, the money is due to Defendants 1 and 2 from Defendant No.3. The learned Judge noted that a caveat had been filed by the Respondents 1 and 2, who are the Defendants 1 and 2, but even then he did not think it proper to issue a notice to the caveators before ordering attachment and directing Respondent No.3 to with hold the payment of Rs.8,96,000/- which they were holding and which was payable to Respondents 1 and 2. The money was due to Respondents 1 and 2 even according to the Trial Court. The learned Judge observed that no relief was claimed against Respondents 1 and 2 and they are only formal parties to the petition. The only persons who were affected by the impugned order were Respondents 1 and 2 and the Judge noted it that the money held by Respondent No.3 was payable to the Respondents 1 and 2, even then, he stated that they are not necessary party. Even after that, the learned Judge did not even take care of following Order 38, Rule 5 of C.P.C. Before an order is passed under Order 38 Rule 5 of C.P.C., it is incumbent upon the Civil Court to satisfy itself of the existence of the conditions laid down in Order 38, Rule 5 of C.P.C. It is also incumbent upon the Court to seek security from the party and in case the security is not provided, to show-cause why the defendant should not furnish security. Rule 5 of Order 38 CPC is reproduced below:

(3.) The conditions precedent for passing an order under Order 38, Rule 5 CPC are,