B PRAG NATH Vs. MTINDRA DEVI

JUDGEMENT

(1.) This is a defendant's appeal from an order directing attachment of certain properties before judgment. The order purported to have been passed under Order 38, Rule 6 and an appeal from an order passed under that Rule is allowed by Order 41, Rule 1(q).

(2.) The defendants did not raise the objections in the Court below which is raised before us, viz., that the notice issued by the Court below ordering the attachment was not in compliance with Order 38, Rule 5. Under that order, when the Court is satisfied that the defendant, with intent to obstruct or delay the execution of any decree, is about to dispose of...his property, or is about to remove the...property from the local limits of the jurisdiction of the Court, it may direct the defendant either (1) to furnish security to produce the property or the value thereof, or (2) to appear and show cause why he should not furnish security. Under Rule 6, when the defendant fails to show cause why he should not furnish security or fails to furnish security required, the Court may order the property to be attached. In the present case, the wife had brought a suit for maintenance allowances against her husband and applied for. attachment before judgment. On the application the Court ordered. Let notice go to the defendant to show causse, if any, against this application.

(3.) The learned Judge did not carefully read the provisions of Order 38, Rule 5 and worded his order wrongly. The result was that his office instead of issuing a notice on form No. 5, Appendix 17 to the Civil Procedure Code, issued a notice on the general form for notice to show cause. It directed the defendant to appear on the date fixed and show cause against the application and he was informed that if he did not appear and show cause, the application would be disposed of in his absence. As already noted, the defendant when he appeared filed objections, but did not take any objection as to the defective form of the notice. Nonetheless, there is no doubt that the provisions of Rule 5 were not complied with by the Court below. As laid down in Nathu Mal V/s. Kishori Lal A.I.R. 1914 All. 511, such non- compliance with the provisions of the Rule amounted to an irregularity and the order passed by the Court below was both irregular and objectionable. It does not necessarily follow that it was wholly ultra vires or void ab initio.