THE HONOURABLE SRI JUSTICE K.C.BHANU CIVIL REVISION PETITION No.5564 of 2009 ORDER: This Civil Revision Petition is directed against the order, 20.10.2009, passed by the VII Senior Civil Judge, City Civil Court, Hyderabad, whereunder and whereby I.A.No.290 of 2009 in O.S.No.837 of 2009, seeking to attach and direct the garnishee to withhold an amount of Rs.10,22,259/- out of the amounts payable to defendant No.1 in his contracts, was dismissed. 2. The petitioner is the plaintiff and respondents 1 and 2 are defendants 1 and 2, respectively, in the said suit and defendant No.3 is a third party. 3. For the sake of convenience, in this order, the parties will be referred to as arrayed in the said suit. 4. In the affidavit, filed in support of the said application, it was alleged that the plaintiff supplied some material to first defendant, for which, the first defendant became due to the plaintiff; that when the plaintiff demanded the first defendant to pay the due amount, he issued two cheques and when the said cheques were presented for encashment, the same were returned with an endorsement “insufficient funds”; that subsequently, O.S.No.837 of 2009 was filed along with a petition seeking to attach the amounts belonging to the first defendant lying with the garnishee; and that the said application was dismissed on the ground that it was not the case of the plaintiff that defendant No.1 has certain properties and he is trying to dispose of the same to avoid the decree or that he is trying to flee away from the jurisdiction of the Court. 5. Learned counsel appearing for the revision petitioner- plaintiff contended that the plaintiff supplied some material to the first defendant and to discharge the amount due for it, he issued two cheques, therefore, prima facie, there is a privity of contract between the plaintiff and the first defendant; and that if the garnishee pays the amount to the first defendant, it would be difficult for the plaintiff to realize the amount from the first defendant, in case, ultimately the suit is decreed and hence, he prays to set aside the impugned order. 6. On the other hand, learned counsel appearing for the first respondent-first defendant contended that there is no privity of contract between the first defendant and the plaintiff; that the first defendant has given the sub-contract to the second defendant; that after completion of the contract work, the first defendant paid the amount to the second defendant; that for the purpose of security, the first defendant issued two blank cheques to the second defendant, who, in turn, might have given them to the plaintiff and hence, there are no grounds to interfere with the impugned order. 7. Under Order XXXVIII Rule 5 of the Code of Civil Procedure, 1908 (for short ‘C.P.C.’), conditional attachment of the whole or any portion of the property of the defendant can be ordered by the Court, on its satisfaction that the defendant is about to dispose of the whole or any part of his property, or that he is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court. But before ordering such attachment, at the first instance, a notice has to be given to the defendant to furnish security to the amount due, and if the defendant fails to give the security as ordered, then attachment can be made. 8. It is not the case of the plaintiff that the first defendant is trying to dispose of the properties or leave the jurisdiction of the Court, which are conditions precedent for ordering attachment before judgment. Admittedly, the amount of the first defendant is lying with the garnishee. The case of the plaintiff is that if the first defendant withdraws the amount from the garnishee, it would be very difficult for him to realize the amount due, in case, ultimately, he succeeds in the suit. This contention urged on behalf of the plaintiff can be accepted, at this stage, because after completing some contract works, certain amounts are lying with the garnishee, which are payable to the first defendant. The trial Court ought to have followed the procedure prescribed under Order XXXVIII Rule 5 C.P.C., directing the first defendant to furnish the security at the first instance, but, it has not done so. Therefore, the impugned order is liable to be set aside. However, the interests of plaintiff have to be kept in mind. 9. Accordingly, the Civil Revision Petition is allowed, setting aside the impugned order, and directing the first defendant to furnish third party immovable security for the suit amount to the satisfaction of the trial Court. If the first defendant fails to furnish the security, his amount lying with the garnishee shall be attached and it is needless to mention that if the first defendant furnishes the security, the amount of the first defendant lying with the garnishee shall be returned to him. However, there shall be no order as to costs. ____________________ JUSTICE K.C.BHANU 22nd March 2010 Note: Issue CC by one week. B/o dr