GH MOHD BOTU Vs. TAJA BIBI

JUDGEMENT

(1.) THE trial court of City Judge, Srinagar passed an order on 26 -4 -1977 directing the defendants under R. 5 of order 13 of the Code of Civil Procedure to furnish security within specified time By the same order the court directed the conditional attachment of the property of the defendants under sub -rule (3) of R. 5. That order was executed and the attachment of the property of the defendants was also effected. Thereafter the defendants sought the release of the attached property on their furnishing the security in the like amount. That too has been done. The property has been released from attachment and the defendants have furnished security.

(2.) THE grievance of the petitioners in this revision petition is that the court below has not followed Rule 5 in letter and spirit and therefore the impugned order suffers from legal infirmity. The argument is that where the court is satisfied that conditions exist for the passing of order under R. 5, the court may direct the defendant within the time fixed by it either to furnish security in such time as may be specified in the order or to appear and show cause why he should not furnish security. The court may also in the order direct the conditional attachment of the property of the defendant is submitted that this has not been done in the present case. Under the aforesaid rule a conditional order of attachment must be accompanied by an order directing the defendant either to furnish the security or to show cause as to why he should not furnish security within the prescribed period. If the conditional order is not accompanied by such a notice it is not according to law.

(3.) IN my opinion there is great force in this argument. The trial court when it decided to take action under R. 5, should have directed the defendants also to furnish security in the like amount or to appear and show cause why he should not furnish security. Alongwith this the court could also direct the conditional attachment of the property of the defendants. In the instant case only the first part of R. 5 has been followed in the sense that the court has asked the defendants to furnish security. It has not called upon the defendants to appear and show cause as to why they should not furnish the security. In this view of mine I am fortified by 50 Appellate Cases 368 and 175 Indian Cases 828.