MOHAMMAD ALI ISMAIL Vs. BALDEO SINGH

JUDGEMENT

(1.) This appeal is by defendants to a suit for recovery of a certain sum of money on the basis of several handnotes. The handnotes were executed by defendant No. 1; defendant No. 2 is his brother and defendant No. 3 is his mother. After the institution of the suit, the plaintiff filed an application under Order 38, Rule 5, Order 39, Rule 1 and Section 151, Civil P. C., and the prayer was that

(2.) These defendants 2 and 3 are the appellants before us, and the point taken is that, as there was no compliance with the provisions of Order 38, Rule 5, the final order under Rule 6 is illegal and liable to be set aside. Order 38, Rule 5, enjoins upon the Court to direct the defendant, within a time fixed by it

(3.) I have mentioned in sufficient detail the prayer made by the plaintiff in his application, the reference of that prayer in the order-sheet itself and the contents of the show cause petition. The question is whether the non-fulfilment of the procedure prescribed under Rule 5 made the order of attachment illegal and invalid; In my opinion, though the conditions mentioned in Rule 5 were not, in letter, complied with by the Court, there was sufficient compliance in spirit by reference of the facts stated in the prayer portion of the application of the plaintiff in the order issuing notice. Non-fulfilment of Rule 5, therefore, was a mere irregularity. When the defendants appeared and showed cause, if they had been prejudiced by the Court not strictly following the conditions laid down in Rule 5, they could have drawn the attention of the Court to the omission made by it; but there is absolutely no reference to any prejudice caused to them or to the omission made by the Court in regard to the compliance with the provisions of Rule 5.