INDUSTRIAL ASSOCIATES Vs. MOHAMMAD HUSSAIN

JUDGEMENT

(1.) The Civil Revision Petition gives rise to the question whether the procedure under Order 38, Rule 5 have to be gone through by the Court before it issues a prohibitory order to a garnishee, in a procfeding before attachment before judgment. The facts leading to the revision petition, briefly stated are these:

(2.) The plaintiff-petitioner laid a suit for recovery of Rs. 6,282-78 from the respondent. A prohibitory order was issued against five garnishees under Order 21 Rule 46 restraining them from making payments to the respondents of the sums alleged due by them. After the prohibitory order was issued, the defendant-respondent filed a counter inter alia disputing the amount of claim. It was his specific contention that the plaintiff has not placed any material before the Court to show that the defendant is likely to leave the jurisdiction of the Court or that he was about to dispose of any of his movable or immovable property so as to evade the suit claim in the event of decree and therefore the issue of prohibitory order under Order 21, Rule 46 before complying with the conditions of Order 38, Rule 5 of the Code of Civil Procedure is illegal. The learned Assistant Judge held that the affidavit of the petitioner does not disclose any circumstance for the issue of prohibitory orders in the sense that it does not disclose that the defendant was about to leave the jurisdiction of the Court or was disposing of any of his properties. In other words, the learned Assistant Judge has held that the conditions laid down under Order 38, Rule 5 C.P.C. are not fulfilled before a prohibitory order could be issued to the garnishee under Order 21, Rule 46 C.P.C. He thus dismissed the petition. It would also appear that the earlier exporte prohibitory order was withdrawn. It is this order that is now assailed in this revision petition.

(3.) The contention of the learned Counsel for the petitioner is, that before a prohibitory order under Order 21, Rule 46 C P.C. could be issued to a garnishee, it is not necessary for the plaintiff to fulfil the conditions of Order 38, Rule 5 C.P.C. and, in fact, no notice to the defendant is equally necessery at that stage. Order 21 Rule 46 C.P.C. relates to the attachment of certain properties in the possession of not the judgment-debtor but a person who can be said to be a bebtor of the judgment-debtor. This is a provision which can be availed of in the course of execution of a decree. Order 38 Rule 5 enables the plaintiff to have the properties of the defendant attached before judgment, when the plaintiff satisfies the Court that the defendant with intent to obstruct or delay the execution of any decree that may be passed against him is 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 from the local limits of the jurisdiction of the Court. When the plaintiff in a suit makes an application under Order 38 Rule 5(1) CPC, the court may direct the defendant either to furnish security or to appear and show cause why he should not furnish security. The question presently is whether the plaintiff could straight away seek a prohibitory order against the garnishee in a petition purporting to be under Order 21, Rule 46 read with Order 38, Rule 5, without any notice by the Court to the defendant to furnish security or to show cause as to why he should not furnish security for the suit claim. We are not presently concerned with any execution proceeding. In the instant case, the prohibitory order was sought to be issued before judgment. What was contended by the learned counsel for the revision petitioner is that when there is a specific provision under Order 21, Rule 46, recourse need not be bad to Order 38 Rule 5 and that the procedure laid down under the latter order need not be followed and as such, there not need be a notice to the defendant either calling upon him to furnish security or to show cause as to why he should not furnish security. In support of his contention that Order 21, Rule 46 would alone govern a case like this, and that no notice to the defendant is necessary where prohibitory order before judgment is sought, reliance is sought to be placed by the learned Counsel for the petitioner on a ruling of the Patna High Court reported in Imperial Bank vs. Bibi Sayeedan' The following head note, however, does not bring out the ratio decided therein. The Head note reads as follows: "An order for attachment before judgment can be issued only against the defendant of the suit as provided in Or. 38, Rule 5. A prohibitory order can be issued against a person, who is not a defendant to the suit, under Order 21, R. 46. When there is a specific provision in the Code, no recourse can be had to the inherent powers of the Court under Section 151"