JUDGMENT
D.K. Seth, J.
1. The order dated 3.7.1999 passed by the learned Additional District Judge, IIIrd Court, Bareilly in Misc. Civil Appeal No. 7 of 1999 affirming the order dated 3.9.1996 passed by the learned civil Judge in Original Suit No. 492 of 1995 has since been challenged.
2. Shri Vipin Sinha, learned counsel for the petitioner contends that the learned trial court has to come to a finding that there was no ingredient for invoking Order XXXVIII, Rule 5 of the Code of Civil Procedure, therefore, directing furnishing of security is wholly illegal exercise of jurisdiction and as such the impugned order is liable to be set aside. The order passed by the appeal court also suffers from the same infirmity.
3. But the fact remains that so far as the trial court is concerned, it had come to a conclusion that there was no ingredient disclosed in the application under Order XXXVIII, Rule 5, in order to pass an order of attachment, still then it had directed furnishing of security without requiring the defendant to show cause as to why he may not furnish the security. Drawing my attention to sub-Rule (4) of Rule 5. Shri Sinha contends that if such an order of attachment is made without complying with the provisions of sub-rule (1), in that event, the same shall be void. On these grounds, he contends that the orders should be set aside.
4. Mr. A.K. Goyal, learned counsel for the opposite parties on the other hand contends that though the learned trial court has found that there was no such ingredient but in the appeal court’s order, it was found that in the meantime, there has been a sale of tractor by defendant No. 3. But Mr. Sinha contends that the said tractor belonged to and sold by defendant No. 7 and the defendant No, 3-petitioner has nothing to do with it. Therefore, that cannot be used against the petitioner.
5. I have heard learned counsel for the parties at length.
6. The trial court had found that the defendant No. 3 has sold one of the tractors which was sought to be attached and had also held that the defendant was a financial company which obtained deposits from the parties and they are not returning the same. This observation clearly shows that there is an apprehension on which Order XXXVIII. Rule 5, could be attracted. At the same time, Order XXXVIII, Rule 5 (4), makes it clear that if any order of attachment is issued without complying the sub-rule (1), then such attachment shall be void. In the present case, no order of attachment was issued, it was only a direction for furnishing security. Rule 4, therefore, cannot be attracted. Inasmuch it is attracted only when there is an attachment. So far as the question of furnishing security is concerned, in fact in this case, it was directed to be furnished without requiring the defendant to show cause why he should not furnish security. But at the same time, the Court may even direct furnishing of security without asking to show cause. It is not shown how sub-rule (1) of Rule 5, was not complied with in the matter. The only ground that was taken was the assertion made by the trial court that no ingredient was made out. But from the appeal court’s order, it shows that there were sufficient ingredients attracting the application of Order XXXVIII, Rule 5, which has not been properly looked into by the learned trial court.
Admittedly the defendants are finance company which are after having obtained deposit are not refunding the money and are not acting within the scope of agreement for depositing such money. These are sufficient ingredients to attract Order XXXVIII, Rule 5. On these grounds, I do not find any reason to interfere with the order impugned in this writ petition.
It would be open to the opposite party plaintiff to ask for further order of attachment if they are so advised if some other property comes to the knowledge of the opposite party plaintiff.
7. The writ petition, therefore, fails and is accordingly dismissed with the aforesaid observation.