S. S. M. QUADRI, J.

( 1 ) THE 1st defendent in O. S. No. 31 of 1989 on the file of the Subordinate judge, Gudur (O. S. No. 6/89 on the file of the Vacation Ju ige, Nellore) is revision petitioner. The first respondent-plaintiff filed the suit for recovery of money. In the said suit she filed I. A. No. 230/89 before the Vacation judge, Nellore for attachment of the amount payable to the defendant No. 1 by the Superintending Engineer (R andb. Circle Office, Seethammadhara, visakhapatnam) the 2nd respondent herein. On 2-5-89, the Vacation Civil judge ordered attachment of the amount lying in deposit with the 2nd respondent. The validity of that order is assailed in this revision petition.

( 2 ) SRI M. V. Ramana Reddy, the learned counsel for the petitioner, submits that the order under revision was passed in violation of the provisions of Order 38 Rule 5 CPC. , and, therefore, the order suffers from the vice of material irregularity in exercising the jurisdiction by the Vacation civil Judge. so it is liable to be set aside.

( 3 ) SRI S. R. Ashok, the learned counsel for the 1st respondent, submits that had the notice been given under Sub-rule (1) of Rule 5 of Order 38, the petitioner would have withdrawn the amount and the purpose of attachment would have been frustrated, so in the circumstances of the case, the vacation Judge was justified in passing the order in question.

( 4 ) THE short question that arises for consideration in this case, is whether the order under revision warrants interference under Section 115 of the Code of Civil Procedure.

( 5 ) INASMUCH as the order in question purports to have been passed under Order 38 Rule 5 CPC, it would be appropriate to notice the provision of the said rule.

( 6 ) RULE 5 of Order 38 CPC. reads as follows :"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 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, 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 the 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. "

( 7 ) FROM a reading of the rule extracted above, it is clear that Rule 5 prescribes the circumstances which should be satisfied and the procedure that should be followed before calling upon the defendant to furnish security for production of property or ordering attachment of property. Sub-Rule (1) provides that the Court may direct the defendant (i) either to furnish security as may be specified by it to produce and place at the disposal of the court, when required, the property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or (ii) to appear and show cause why he should not furnish security. Before issuing such a direction, the Court has to be satified by affidavit or otherwise that the defendant (a) is about to dispose of the whole or any part of his property ; (b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court and (c) his intention is to obstruct or delay the execution of any decree that may be passed against him. Sub-Rule (2) casts an obligation on the plaintiff to specify the property required to be attached and its estimated value. Sub-Rule 3 confers power on the Court to order conditional attachment of the whole or any portion of the property. Sub-rule (4) which is inserted by the Code of Civil Procedure (Amendment) Act, 1976 (for short the Amendment Act) declares that if an order of attachment is made without complying with the provision of sub-rule (1) such attachment shall be void. Before insertion of sub-rule (4), judicial opinion was divided in regard to consequence of non-compliance of provisions of sub-rule (1 ). The controversy is set at rest by adding declaration contained in sub-rule (4 ). Therefore, it follows that only after the defendant is granted time to show cause or furnish security within the specified time and if he fails to show cause or commits default in furnishing security that the Court can order attachment. Any order of attachment without complying with the mandatory requirements of sub-rule (1) is void. It may be observed here that the mandatory provision of Rule 3 of Order 39 CPC which requires that notice should be given before granting injunction provides an exception in case where object of granting injunction will be defeated by the delay that may be caused due to giving notice but such a consideration is alien to the scheme of Rule 5 of Order 38. It should be remembered that the order of attachment of property has grave and serious consequences. Therefore, it should not be granted liberally for mere asking as a matter of course but only after satisfying the requirements of sub-rule (1 ). In this case, admitedly no direction or notice was issued to the petitioner under sub-rule (1) before passing the order under revision. Indeed, the order is not a speaking order. The order suffers not only from a material irregularity in the exercise of jurisdiction but is also void. Therefore, the order under revision is liable to be set aside.

( 8 ) IT is however, contended by Mr. Ashok the learned counsel for the 1st respondent, that Proviso (b) to sub-section (1) of Section 115 CPC. reauires that the order under revision should not be set aside merely because there is an error of jurisdiction unless it is proved that the person against whom the order is passed, would suffer irreparable loss if the order is allowed to stand Sri M. V. Ramana Reddy, the learned counsel for the petitioner submits that sub-rule (4) of Rule 5 of Order 38 CPC provides that an order of attachment made without complying with the provisions of sub-rule (1) of o 38 R. 5 CPC. is void, therefore, the order cannot be sustained.

( 9 ) WE may read here the proviso added to Section 115 by the Amendment Act. "provided that the High Court shall not, under the section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where- (a) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding, or (b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made. It may be mettioned that sub-section (1) of Section 115 CPC provides that in case decided by subordinate Courts in which no appeal lies and the court has exercised jurisdiction where it does not have or has failed to esercise jurisdiction where it possesses or acted in the exercise of jurisdiction illegally or with marerial irregularity, this section can be invoked. The proviso noted above placed further limitations on the revisional powers of the High courts. Now it is not enough to show that an order suffers from an error of jurisdiction it should also be shown that the order, if it has been made in favour of the revision petitioner would have finally disposed of the suit or other proceeding or that if the order is allowed to stand, it would occasion a failure of justice or cause irreparable injury to the party against whom it was made. The order of attachment of property against a person, in my view, as noted above, carries with it serious adverse consequences. So it does cause irreparable injury to him. Proof of any specific loss need not be shown. Further in my view, the Court cannot decline to exercise the jurisdiction under Proviso (b) on the grounds mentioned therein, where the order itself is declared by the statute to be void. In such cases, non-exercise of jurisdiction would amount to maintaining a void order which the courts would not do.

( 10 ) FOR all these reasons, the order under revision is set aside and the civil revision petition is allowed with costs. The trial court is directed to pass appropriate orders expeditiously after following ,the procedure prescribed under Rule 5 of O. 38 CPC.

( 11 ) SRI Ashok, the learned counsel for the 1st respondent submits that the 1 st respondent may be given an opportunity to pursue such remedy as is open to her to safeguard her rights. It is needless to point out that setting aside the order under revision would not preclude the 1st respondent from pursuing the remedies open to her under law.