IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRDESH:: HYDERABAD THURSDAY, THE TWENTY SEVENTH DAY OF TWO THOUSANDAND ELEVEN PRESENT:: HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.R.P.No.2393 OF 2011 Between: Mandala Komala …Petitioner A n d Samala Chandraiah ..Respondent HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.R.P.No.2393 OF 2011 ORDER: This civil revision petition is directed against the order dated 30.05.2011 in I.A.No.860 of 2010 in O.S.No.318 of 2010, on the file of the Principal Senior Civil Judge, Kothagudem, wherein the said application filed by the respondent herein, the plaintiff, under Order XXXVIII Rules 5 and 6 CPC for attachment of the plaint schedule property, was ordered. 2. Heard the learned counsel for the petitioner/defendant and the learned counsel for the respondent/plaintiff. Perused the record. 3. The respondent/plaintiff filed the suit for recovery of the suit amount based on the pronote dated 24.09.2008 said to have been executed by the petitioner/defendant for borrowal of Rs.2 lakhs from the respondent/plaintiff. The respondent/plaintiff filed I.A.No.860 of 2010 seeking attachment before judgment of the schedule properties belonging to the petitioner/defendant on the ground that the defendant is making attempts to alienate the schedule properties. 4. By docket order dated 30.05.2011, the learned Senior Civil Judge directed attachment of item Nos. 1 and 2 of the plaint schedule property. 5. As seen from the impugned order, in the counter filed by him, the petitioner/defendant has averred that item No.1 was already alienated to one Kampa Kumara Swamy under a sadha sale agreement and the said agreement will not give any rights to the purchaser and the petitioner herein, the defendant, is not furnishing security. 6. The main contention of the learned counsel for the petitioner/ defendant is that the impugned order is contrary to the provisions of Order XXXVIII Rule 5 CPC as no notice is given to the defendant to furnish security and, therefore, the question of defendant’s failure to furnish security does not arise. 7. Sub-rule (1) of Rule 5 of Order XXXVIII CPC states – where, at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that the defendants, with intent to obstruct or delay the execution of any decree that may be passed against him is about to dispose of the whole or any part of his property, or 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 or to produce the property or value of the same, or to appear and show cause as to why he should not furnish security. Sub-rule (3) enables the Court to direct the conditional attachment of the whole or any portion of the property so specified. Sub-rule (4) states that if an order of attachment is made without complying with the provisions of sub-rule (1) of this Rule, such attachment shall be void. In the present case, admittedly no such notice was issued to the petitioner/defendant as contemplated under Rule 5(1) to furnish security or fix time on the amount or to appear and show cause why he should not furnish security. Straight away the trial Court has ordered attachment of the property by observing that the respondent is not furnishing security. When there is no call upon the respondent to furnish security, the question of his failure to furnish security does not arise. In view of sub-rule (4), non-compliance with the provisions of sub-rule (1) would render the attachment void. 8. The learned counsel for the respondent/plaintiff would submit that the warrant of attachment issued under Order XXXVIII Rule 6 CPC, copy of which is filed along with the petition filed for vacating the stay, would show that there has been compliance with the procedure. Sub- rule (6) states that where 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 property to be attached. In the present case, there was no notice issued to the petitioner/defendant calling upon him to furnish security fixing a time and specifying the amount but, however, the Court proceeded to issue the warrant observing that the petitioner/ defendant has not furnished security. There is no obligation on the part of the petitioner/defendant to volunteer and come forward to furnish security. When a certain procedure is prescribed under Rule 5 of Order XXXVIII, the same has to be followed, before ordering the attachment, especially when non-compliance with such procedural requirements renders the order of attachment void under sub-rule (4). 9. In the circumstances, the impugned order directing attachment of the schedule property is held unsustainable and the same is accordingly set aside. The trial Court shall follow the procedure prescribed under Order XXXVIII Rule 5 (1) CPC and pass appropriate orders. 10. In the result, the civil revision petition is allowed. There shall be no order as to costs. _____________________ G.V.SEETHAPATHY, J 27th October, 2011 Lrkm.