JAGANNADHA RAO, J.

( 1 ) THIS revision petition has been referred to a Division Bench by neeladri Rao J. , by order dated 26-4-1990 on the basis that the decision of this Court in M. Venkaiah Naidu vs. Neelavenamma decided by Syed Shah mohammed Quadri J. , requires re-consideration. The learned Judge, while making the referring order, gave certain reasons for disagreeing with the view expressed by Syed Shah Mohammed Quadri J. and also referred to the judgment of the Madras High Court in N. Pappammal vs. L. Chidambaram.

( 2 ) THE point arising in the revision is whether it is incumbent on the civil court to follow the procedure mentioned in cl. (b) of Or. XXXVIII rule 5 (1) of the Civil Procedure Code while passing an order of conditional attachment under sub-rule (3) of Order XXXVIII Rule 5 CPC ? Quadri, J. took the view that it is necessary.

( 3 ) NEELADRI Rao, J. took the view that the Court could pass a conditional order of attachment under sub-rule (3) of Order XXXVIII Rule 5 cpc without issuing any prior notice as mentioned in cl. (b) of O. XXXVIII rule 5 (1) CPC.

( 4 ) THE revision was preferred by the plaintiff. He filed the suit o. S. No. 84 of 1989 on the file of the Sub-Court, Gudur for recovery of a sum of Rs. 2,10,300/- with interest thereon from the 1st defendant. The 1st defendant in the suit is a contractor ; the 2nd defendant is the Special deputy Collector, Tetugu Ganga Project, Podalakur, Nellore district ; the 3rd defendant is the Branch Manager, State Bank of India, Barracks, Nellore and the 4th defendant is the Executive Engineer, Tirumala Tirupathi devasthanams, Tirupathi. The plaintiff filed I. A. No. 519/89 for directing attachment of the properties mentioned in the said interlocutory application and sought for the grant of "conditional interim attachment without notice to the respondent" and also the issue of a prohibitory order with notice to the garnishee not to encash the schedule items payable to the creditor, the 1st defendant. The schedule to the interlocutory application referred to the compensation amount awarded in favour of the 1st defendant for acquisition of his land by the Land Acquisition Officer, Nellore, who was to issue a cheque in favour of the 1st defendant to be encashed before the branch Manager, State Bank of India, the approximate value of the cheque being Rs. 2 lakhs. The other item mentioned in the schedule is the bill for rs. 1 lakh given by the concerned Executive Engineer of the Tirumala tirupathi Devasthanams in respect of certain works for which the 1st defendant was the contractor. Upon the said interlocutory application being filed, the learned Sub-Judge, Gudur passed an order directing notice to the respondent and the garnishee by 18-10-1989.

( 5 ) THE revision has been preferred by the plaintiff contending that the learned Sub-Judge erred in merely granting notice and that this amounts to non-exercise of jurisdiction. It is contended that the non-issue of an order would render the inter locutory application infructuous and that the respondent would draw the compensation amount or the bill amount from the government or the Tirumala Tirupathi Devasthanaras. As the 1st defendant does not, according to the petitioner, possess any other property, it would be difficult to realise any amount if a decree is passed.

( 6 ) AT the time when the revision came up before Neeladri Rao, J. it was contended for the 1st defendant, placing reliance on the judgment of this Court in M. Venkaiah Naidu vs. Neelavenamma (1 supra), that no order of conditional attachment could have been issued under sub-rule (3) of O. XXXVIII R. 5 CPC without following the procedure of issuing a notice as contemplated by clause (b) of O. XXXVIII R. 5 (1 ). Neeladri rao J. , did not agree with the submission and also thought that the judgment in M. Venkaiah Naidu s case (1 supra) requires re-consideration.

( 7 ) WE have heard the learned counsel for the revision petitioner, Sri s. R. Ashok, and the learned counsel for respondent No. 1, Sri M. V. Ramana Reddy.

( 8 ) ORDER XXXVJH Rule 5 CPC reads as follows :"o. XXXVIII R, 5 : Where defendant may be called upon to furnish security for production of property. (1) Where, at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that toe 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, or (b) is about to remove 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) The plaintiff shall, unless the Court otherwise directs, specify the property required to be attached and estimated value thereof, (3) The Court may also in the order direct the conditional attachment of the whole or any portion of the property so specified. (4) If an order of attachment is made without complying with the provisions of sub-rule (1) of this rule, such attachment shall be void. "

( 9 ) IT is also necessary to refer to Order XXXVIII Rule 6 CPC, which reads as follows:"o. XXXVIII R. 6: Attachment where cause not shown or security not furnished. (1) 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. (2) 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. "

( 10 ) NEELADRI Rao, J. was of the opinion that sub-rule (3) of O. XXXVIII r. 5 permitted conditional attachment without notice and without following the procedure laid down in clause (b) of O. XXXVIII R. 5 (1 ). According to the learned Judge, sub-rule (3) of O. XXXVIII R. 5 on the one hand and sub-rules (1) and (2) of O. XXXVIII R. 5 and O. XXXVIII r. 6 CPC on the other have to be harmoniously construed. The learned judge also placed reliance on the fact that the form prescribed in Appendix-F of the First Schedule in relation to "conditional attachment" has not been modified or amended by the legislature. The learned Judge also pointed out that sub-rule (4) of O. XXXVIII R. 5 was introduced for the first time by the Amending Act of 1976 and was intended for a different purpose viz. , for resolving the conflict of opinion between various High courts as to the effect of non-compliance with the procedure indicated in clause (b) of O. XXXVIII R. 5 (1 ). The learned Judge also held that if before passing an order of conditional attachment under sub-rule (3) of O. XXXVIII R. 5 notice is to be issued, in several cases and particularly in cases where cash or movable property is to be attached, the very purpose of the attachment might be rendered infructuous.

( 11 ) BEFORE proceeding to construe the various provisions of O. XXXVIII Rules 5 and 6, we shall first mention the reasons as to why sub-rule (4) was added by the Amending Act of 1976 in O. XXXVIII R. 5 CPC.

( 12 ) AS stated earlier, sub-rule (4) of O. XXXVIII R. 5 was introduced for the first time by the CPC Amending Act of 1976 with effect from 1-2-1977. That was intended to resolve the conflict of opinion of various high Courts as to whether the contravention of the procedure indicated in clause (b) of O. XXXVIII R. 5 (1) made the order void or voidable.

( 13 ) THE Law Commission in its fifty-fourth report (Pp. 271-272) appears to have pointed out that it was necessary to set at rest the judicial divergence of opinion whether the non-fulfilment of the requirements of O. XXXVIII R. 5 (1) CPC will have the effect of making the order passed ultra vires and void and the consequent attachment a nullity or whether if such an order is passed, it would be one which totally lacks jurisdiction or whether the attachment, though erroneous and liable to be set aside in appropriate proceedings, is one without jurisdiction and not a nullity. The Law commission recommended the clarification to the effect that an attachment, which does not comply with the requirements of Order XXXVIII, Rule 5 (1) and is effected without notice as required by the law, resulting in the denial of a privilege of staying off the attachment by the offer of security, should be declared void. Consequently to this recommendation, sub-rule (4) was introduced in Order XXXVIII, Rule 5 C. P. C.

( 14 ) THE Statement of Objects and Reasons for the introduction of sub-rule (4) reads as under:"there is divergence of opinion between the High Court as to whether an attachment made before judgment without complying with the precedure specified in Rule 5 is a nullity or is voidable. Rule 5 is intended for the protection of the person whose property is sought to be attached before judgment. If he does not receive the notice required by law, and is thus denied the opportunity of preventing the attachment by the offer of security an injustice would accrue to him. Rule 5 is, therefore, being amended to clarify that, where the attachment is made without complying with the procedure laid down in Rule 5, such attachment shall be void. "

( 15 ) AS we shall presently show, an order of conditional attachment passed under Order XXXVIII, Rule 5 (3) C. P. C. does not become void for not following the procedure under Order XXXVIII, Rule 5 (1) and that order XXXVIII, Rule 4, introduced in 1976, has nothing to do with a conditional attachment. In fact, Order XXXVIII, R. 6 (2) throws light on this aspect of the matter.

( 16 ) THE point is whether, for purposes of granting conditional attachment under sub-rule (3) of O. XXXVIII, R. 5, the precedure of notice contemplated in Cl, (b) of O. XXXVIU R. 5 has to be followed. A reading of order XXXVIII R. 5 and R. 6 would show that the legislature is making a distinction between an order of "attachment" and an order of "conditional attachment". What the legislature meant by the words "conditional attachment" is not very clear from the statute but the said words have received a particular meaning eversince the Code came into force in 1908. The indication of what the legislature meant by the use of the words "conditional attachment" can also be gathered from Form No. 5 of Appendix-F of the first Schedule to the Code of Civil Procedure. The title to the Form reads as follows: "attachment before judgment, with order to call for security for fulfilment of decree". It is a direction to the Bailiff of the Court to do certain things. The form reads as follows:"to the Bailiff of the Court. Whereas___has proved to the satisfaction of the Court that the defendant in the above suit. . . . . . ; these are to command you to call upon the said defendant. . . . . . on or before the___day of 19. . . either to furnish security for the sum of rupees. . . . . . to produce and place at the disposal ot this court when required or the value thereof, or such portion of the value as may be sufficient to satisfy any decree that may be passed against him; or to appear and show cause why he should not furnish security; and you are further ordered to attach the said___and keep the same under safe and secure custody until the further order of the court; and you are further commanded to return this warrant on or before the. . . . day of___19___, with an endorsement certifying the date on which and the manner in which it has been executed, or the reason why it has not been executed. Given under my hand and the seal of the Court, this. . . . day of. . . . 19. . . . . Judge. "

( 17 ) THE first part of the form directs the defendant to furnish security in a particular amount or produce and place at the disposal of the Court the said property or its value or such portion of the value as may be sufficient to satisfy any decree that may be passed against him and also requires the defendant to appear and show cause why he should not furnish security. The first part of the form, therefore, is a re-production of the procedure as to notice envisaged by clause (b) of O. XXXVIII R. 5 (1), but the more important part of the form is the second part and this throws considerable light as to what the legislature meant by the words "conditional attachment". This second part contains a further direction to the Bailiff to attach and it reads as follows;". . . . AND you are further ordered to attach the said. . . . and keep the same under safe and secure custody until the further order of the court;"

( 18 ) IT will have to be noticed from the Form that the first part referred to above and the second part need not be contained in every order passed under Order XXXVIII, Rule 5 C. P. C. This is clear from the word also used in Order XXXVIII, Rule 5 (3 ). If the court thinks fit merely to order the defendant to furnish security or show cause why security should not be furnished, the order as drafted in the Form will not contain the second part. It is only where the court thinks that pending further orders, there shall also be an order of attachment, as contemplated by Order xxxviii, R. 5 (3) that the second part of the Form will be included in the directions issued to the bailiff.

( 19 ) IT is this second type of order that is called an order of conditional attachment . If the defendant does not comply with the first part of the Form, the bailiff, if so authorised, can invoke the second part of the form.

( 20 ) IT will be noticed from the First Schedule to the Code of Civil procedure where various forms have been set out that in respect of several forms, the legislature has amended the same to bring them into conformity with the provisions of the Amending Act of 1976. So far as Form No. 5 of appendix-F of the First Schedule is concerned, no such amendment is made. This is a clear indication that by introduction of sub-rule (4) of o. XXXVIII, R. 5, the legislature did not think of amending the procedure relating to conditional attachment, viz. , that such an order could be passed simultaneously with the order directing the defendant to show cause. The legislature also did not amend Or. XXXVIII, R, 6 (2) which relates to withdrawal of attachments.

( 21 ) THE above interpretation of the provisions of Order XXXVIII, r. 5 and Form No. 5 would be consistent with the provisions of sub-rule (2) of Order XXXVIII, R. 6, and under that sub-rule, where the defendant shows 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. This withdrawal of attachment under Order XXXVIII, R. 6 (2) can only be of an order of conditional attachment granted under Order XXXVIII, R. 5 (3 ). In fact, if there could be no conditional order of attachment without notice to the defendant there would be no occasion for the defendant to invoke order XXXVIII, R. 6 (2) for withdrawal of the attachment. In our view, order XXXVIII Rule 6 (2) deals with withdrawal of conditional orders of attachment. The circumstances under which sub-rule (2) of Order XXXVIII, rule 6 would come into play would be, where the court had previously exercised the power under sub-rule (3) of Order XXXVIII, Rule 5 to order conditional attachment, either of moveable or immoveable property, in addition to directing the defendant to furnish security or show cause why he should not furnish security.

( 22 ) COMING to the decision in M. Venkaiah Naidu vs. Neelavenamma and another (1 supra), it is not clear whether the learned Judge had meant that notice should be given and the defendant be heard before an order of "conditional attachment" could be passed under sub-rule (3) of order XXXVIII, Rule 5. In fact, a reading of the facts of that case shows that the learned Judge was perhaps not laying down any such principle as being applicable to conditional attachments. In that case, the order of attachment was made on 2-5-1989 in respect of certain amount lying in deposit with the second respondent therein and the point that was raised was that the order was passed in violation of the provisions of order XXXVIII, Rule 5, and that, therefore, the attachmant order was void. It does not appear to us that any specific question as to the conditional attachment was raised, muchless any question that such an order was passed before hearing the defendant.

( 23 ) THE view which we have taken is similar to the view taken by a learned single Judge (Ratnam, J) of the Madras High Court in S. Venkata chalam Iyer vs. S. Rama Iyer. In that case, the learned Judge held:"if Order, 38, Rule 5 (1) and (3) CPC is so construed as to mean that in all cases, any order of attachment can be passed only after the defendant appears and furnishes security or otherwise makes arrangements to the satisfaction of the court to meet the liability under the decree that may be eventually passed, in response to a notice issued under Order 38 Rule 5 (1) CPC, then that would result in the defendant being enabled to defeat the very power of the court to attach and also afford protection by the process of attachment and even the very decree that may be eventua 11y pass, by resorting to dilatory tactics resulting in his or her not receiving the notice at all and by disposing of all his properties mean while. "the learned Judge further held:"the expression used therein is conditional attachment and that would mean that it is not an absolute attachment, but only in the nature of a dependent attachment or an attachment which would ensure and depend upon certain conditions, namely, the defendant appearing and showing cause or not. In other words, such a conditional attachment would be operative during the interregnum or the intervening time. "our attention was drawn to another decision of Seetharam Reddy, J. in nellimarla Jute Mills vs. Sree Mahaveer Rice and Oil Mills. The learned judge held: "it is not competent for the court to issue an interim order of attachment without observing the formalities, which are mandatory in nature, as laid down under sub-rule (1) of Rule 5. In other words, an ex-parte order of attachment can be made either resorting to the provisions of sub-rule (1) of Rule 5 or sub-rule (3) of Rule 5. It was further held therein that:"there is no provision for making any interim attachment order without making it known in the order, whether it has been done resorting to the provisions enacted in sub-rule (1) of Rule 5. It must expressly be stated so in the order. "if the learned Judge means that an order of conditional attachment should not be made under sub-rule (3) of Rule 5 of Order XXXVIII before hearing the defendant, we respectfully dissent from the abovesaid judgment. We do not however find anything in the judgment of a Division Bench of this court in Y. Vijayalakshmamma vs. S. Lakshtnaiah, to the contrary. In that case, no question as to the interpretation of sub-rule (3) of Order XXXVIII rule 5, much less any question as to prior notice, arose.

( 24 ) FOR the aforesaid reasons, we hold that the Court by reason of its power under Order XXXVIII, Rule 5 (3) can order conditional attachment also along with a show cause notice to be issued under Order XXXVIII, rule 5 (1) of CPC. The court can adopt the first part of Form No. 5, and in such an event, it may be necessary for the court to hear the defendant before issuing such a notice. It is also open to the court to adopt both the first and the second parts of Form No. 5, without issuing notice and direct the Bailiff to attach the property straight-away, if the defendant fails to comply with the first part of the Form. In the latter case, the order will be one of conditional attachment . However, if the defendant comes to court and satisfies the court, it will be open to the court to withdraw such conditional attachment under Order XXXVIII, Rule 6 (2 ). The above interpretation of the provisions seems to us to be in harmony with the intention of the Legislature, In any event, sub-rule (4) of Order XXXVIII, rule 5 does not come into play at the stage of ordering condititional attachment. No order of conditional attachment can be declared as void on account of the court not following the procedure under Order XXXVIH, rule 5 (1) C. P. C.

( 25 ) DURING the pendency of this Revision, this Court passed an order permitting the first defendant to furnish security or bank guarantee to the satisfaction of the Trial Court for the suit sum and costs. The said order has been complied with by the first defendant. The said order shall be the order in this Revision also.

( 26 ) THIS Court also directed attachment of the amount as prayed for by the plaintiff, pending the defendant furnishing security or bank guarantee. In case the security or bank guarantee has not been furnished, the order of attachment passed by this Court will continue to be in force, of course, subject to the defendant filing a proper application under Order XXXVIII, rule 6 (2) C. P. C. for withdrawal of such attachment. It will be open to the Court to deal with that application in accordance with Law. C. R. P,disposed of accordingly. No costs.