The present appeal is directed against the order of the learned Civil Judge, Nankana Sahib, dated 24-6-1975, issuing a warrant of attachment of the tractor in dispute after proceeding ex parte against the appellant.
2. The respondent Muhammad Hayat instituted a suit on 13-6-1975, for declaration that he was a joint owner of 1/2 share along with Faqir Ali appellant of the tractor No. S.A/3913 and was entitled to its use equally. Along with the suit, an application under Order XXXIX, rules 1 and 2, C. P. C. Was also made. The plaintiff also moved an application under Order XXXVIII, rule 5, C. P. C. For the attachment of the tractor before judgment, stating that the appellant was not only plying it on hire to others but was also trying to dispose of the same and this was likely to result in irreparable loss to the respondent.
3. The learned Court issued a notice to the appellant for 17-6-1975 but it could not be served on him, therefore, another notice was issued for 24-6-1975. It transpires from the note on the back of the notice that the appellant expressed his inability to attend the Court on the date fixed because he was to appear that day in his case in the High Court. However, he assured that he would appear on the next date. But the learned trial Court proceeded ex parte against him and forthwith issued a warrant of attachment before judgment of the tractor. Against this order, the present appeal has been filed.
4. The learned counsel for the respondent raised a preliminary objection that the learned trial Court passed the impugned order under rule 5 of Order XXXVIII, which was not appealable under Order XLIII, rule 1(q), C. P. C. In case it was an appealable order, the appeal could lie before the learned District Judge as the valuation of the suit for the purposes of jurisdiction is only Rs. 200.00. It was further contended that the appellant had already applied to the learned trial Court under rule 6 :or withdrawal of attachment and his application was still pending decision. As such, according to him, this appeal did not lie when the appellant has already chosen to seek another remedy.
5. According to rule 1(q) of Order XLIII, C. P. C., an appeal shall lie from an order under rule 2, rule 3 or rule 6 of Order XXXVIII. On the facts of the present case, rules 2 and 3 of Order XXXVIII do not apply.
Rule 6(1) lays down that where the defendant fails to show cause why he should not furnish security, or fails to furnish the security, required, within the time fixed by the Court, the Court may order that the property specified or such portion thereof as appears sufficient to satisfy any decree which may be passed in the suit be attached. In sub-rule (2) of this rule, it is further provided that where the defendant shows such cause or furnishes the required security and the property specified or any portion of it has been attached, the Court shall order the attachment to be withdrawn, or make such other order as it thinks fit.
6. Sub-rule (1) of rule 6 comes into play only after issue of a notice under sub-rule (1) of rule 5 of Order XXXVIII. There can be no order of attachment before judgment under rule 6 until after the defendant has either failed to furnish security or to show cause in accordance with rule 5. It has -- been held in Abdul v. Nur 57 I C 907 and Kanshi v. H. N. Bank Ltd. AIR 1928 Lah. 376 that the Court can order attachment when the defendant has failed to show cause why he should not furnish security or has failed to furnish the security required. The defendant is called upon to furnish security for production of the property under rule 5 of Order XXXVIII, C. P. C. Which runs:- "(1) Where, at any stage of the suit, the Court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him-
(a) is about to dispose of the whole or any part of his property from the local limits of the jurisdiction of the Court, the Court may direct the defendant within a time to be fixed by it either to furnish security in such sum as may be specified in the order, to produce and place at the disposal of the Court, when required the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security.
(2)--------------------------------------------------------------------------------------- ---------------------------------
(3) The Court may also in the order direct the conditional attachment of the whole or any part of the property so specified."
7. If the Court is satisfied that the defendant is about to dispose of his property or is about to remove it from the jurisdiction of the Court with the intention to obstruct or delay the execution of any decree that may be passed against him, the Court may direct him to furnish security or to produce the property and place it at the disposal of the. Court or appear and show cause R by he should not furnish security, and may also direct the conditional attachment of the property. In other words, a valid attachment is made under rule 6 after service of notice under rule 5 specifying the terms in Form No. 5 of Appendix `F' of the Code. But before issuing the impugned order, the learned Court did not adopt the required procedure and in fact failed to resort to the provisions of rule 5(l) of Order XXXVIII, C. P. C. The Court below did issue a notice on 17.6-1975 to the appellant but it was in the general form for appearance in person or through a counsel on 24.6-1975, for a reply to the application, failing which ex parte would be ordered. There is no indication in the notice that the application referred to therein was under Order XXXVIII, rule 5, C. P. C. Nor was a copy of the application attached with the notice. In these circumstances, there was no notice to the appellant.
Under rule 5, no action could be taken under rule 6 and the order dated 24-6-1975 in dispute cannot be said to have been passed under rule 6 of Order XXXVIII, C. P. C. It is laid down in Prag v.
Badri AIR 1934 All. 456 and Firm Divarka v. Syiram AIR 1938 Lah. 49 that attachment without complying with the requirements of rules 5 and 6, is not in accordance with proper procedure and is liable to be set aside at the instance of the defendant. In the position, as it is, the impugned order, not being under rule 6 of Order XXXVIII, C. P. C. Was not appealable. In the absence of the notice, the impugned order of attachment by the Court cannot be treated as having been issued even under rule 5(3).
8. On this view of the matter and strictly speaking the impugned order is not at all appealable under rule 1(g) of Order XLIII of the Code. But in considered opinion in this case the trial Court has acted illegally in the exercise of the jurisdiction vested in it under the law and in the interest C of justice this is eminently a fit case for my interference with that order in the exercise of the revisional jurisdiction of the High Court under section 115(1) of the Code. Under similar circumstances, in Messrs Madan Theatres Ltd. v. Hari Das AIR 1936 Lah. 33 it was held that when the lower Court grants an application for attachment before judgment without issuing notice to the defendant under Order XXXVIII, rule 5(1), C. P. C. And there is an appeal against the order, the Court may treat it as an application for revision. In Virasat Ullah and another v. United Bank Ltd. PLD 1975 Lah. 17 also the provisions of section 115, C. P. C. Were invoked.
9. It has been discussed above that the learned lower Court has, without issuing a notice to furnish security or to appear and show cause why the appellant should not furnish security, passed an order of attachment which is irregular and is liable to be set aside at the instance of the appellant.
Court should not at once pass an order attaching the property and as held in Shyam Lal v. Bahal R.I AIR 1936 All. 408 the proper order to pass first, when so satisfied is to order judgment-debtor to furnish security, to produce and place at the disposal of the Court the property or to call upon the judgment-debtor to show cause why he should not furnish security. Having failed to comply with the requirements of rule 5. Order XXXVIII, any order passed attaching the property cannot stand and must be set aside.
10. Before passing the order under revision, the learned Court should have satisfied itself that the appellant-petitioner was about to dispose of his property or about to remove it from its jurisdiction with the intention to obstruct or delay the execution of any decree that may be passed. There is not even an allegation in the application to the effect that the petitioner was trying to dispose of the property with the ulterior intention to abstruct or delay the execution of the decree that may be passed in the case. It is mainly stated that the petitioner is making efforts to dispose of the tractor in dispute. The respondent must have definite evidence to satisfy the Court on this pint. Vague and general allegations that the defendant is trying to dispose of the property are insufficient. Merely because there are such indefinite apprehensions it does not follow that the defendant had the intention contemplated in the rule. Without stating the ground of belief and the source of information, the allegation is inadequate and defective, and Courts should be slow in exercising this extraordinary jurisdiction.
11. In the circumstances, there was no cogent material justifying t issue of a warrant of attachment, therefore, accepting the revision petition the order dated 24-6-1975 is set aside with no order as to costs.