IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD TUESDAY, THIS THE 29th DAY OF JUNE, 2010 CIVIL MISCELLANEOUS APPEAL No.407 of 2010 Between: Shaik Mahaboob ... PETITIONER(S) and Durgah – E – Hazrath Yousufuddin and others …RESPONDENT(S) THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY CIVIL MISCELLANEOUS APPEAL No.407 of 2010 ORDER: The respondent filed O.S.No.142 of 2009 before an Agency Court namely Sub-Divisional Magistrate Mobile Court at Bhadrachalam for recovery of a sum of Rs.7,97,271/- against the petitioners on the basis of a contract for supply of iron. It has also filed I.A.No.194 of 2009 under Rule 5 of Order XXXVIII of C.P.C. Through its order dated 26.11.2009 the trial Court directed M/s.ITC LTD PSPD, Sarapaka, Khammam District, to withhold payment of Rs.8,00,000/- to the petitioners from out of the bills payable to them. This appeal is filed against the said order. Sri Mohammed Imrankhan, learned counsel for the appellants, submits that the prayer in the I.A. itself was untenable and the trial Court committed serious irregularity in straightaway ordering the application that too in the form of a garnishee order. Sri R.Kameswara Rao, learned counsel for the respondent, on the other hand submits that the trial Court, being an Agency Court, passed an interlocutory order to protect the interests of the parties and that no exception can be taken. He placed reliance on the Rules which are applicable to Agency Courts. The respondent filed almost a regular suit before the Agency Court for recovery of certain amount against the appellants. I.A.No.194 of 2009 was filed specifically under Rule 5 of Order XXXVIII read with Section 151 of C.P.C. Therefore, the plea of the respondent that the provisions of C.P.C. do not apply and that the order under appeal came to be passed in exercise of Agency Rules cannot be accepted. Order XXXVIII of C.P.C. prescribes a detailed procedure to be followed, for passing order attachment of the property of a defendant before judgment. The first and foremost step to be taken is to issue a notice to the defendant calling upon him to furnish security to satisfy the decree that may be passed against him or to appear and show cause whey he need not furnish security. It is only when he fails to respond or the explanation offered by him is not satisfactory, that the Court can proceed to order attachment of his property, before judgment. In the instant case, the trial Court has straightaway passed an order directing a Company which is not a party to the suit, to withhold payment to the appellants. Such a course is totally impermissible in law. The order under appeal cannot be sustained either on merits or for the failure to follow the procedural requirements. In fact, the very prayer made by the respondent in his application under Order XXXVIII Rule 5 of C.P.C. is defective. Hence, the Civil Revision Petition is allowed and the order under appeal is set aside. It is, however, open to the respondent to file appropriate application, and the trial Court shall consider the same strictly in accordance with law. No costs. __________________________ L.NARASIMHA REDDY, J 29th June 2010 CVRK