A.F.O.O. No. 88 of 1948. Case: Badri Prasad Jhunjhunwalla Vs Babulal Jhunjhunwalla and Ors.. High Court of Calcutta (India)

Case NumberA.F.O.O. No. 88 of 1948
CounselFor Appellant: Jagadish Chandra Ghose, Adv. And For Respondents: N.C. Sen Gupta and Sudhansu Bhusan Sen, Advs.
JudgesHarries, C.J. and Sarkar, J.
IssueCivil Procedure Code (CPC), 1908 - Sections 100 to 101 - Order 38, Rules 5 and 6; Hindu Law
CitationAIR 1950 Cal 368
Judgement DateFebruary 02, 1950
CourtHigh Court of Calcutta (India)

Judgment:

Sarkar, J.

  1. This is an appeal from an order made by the learned Subordinate Judge at Asansol, directing an attachment before judgment. The suit is on a loan which was said to have been advanced by the plaintiffs to one Kaliprosad Jhunjhunwalla who was in charge of a business. Kaliprosad being dead the suit has been brought against the members of the family which carried on that business.

  2. The plaintiffs applied for attachment before judgment in respect of their claim in this suit of a certain decree which had been passed in favour of defendant 1 who is the senior most member of the family, on 28th January 1948. Notice was issued by the learned Subordinate Judge which was served by affixation at the door of the residence of the defendants. The defendants' case is that they did not get this notice and in those circumstances they did not appear to show cause. The learned Subordinate Judge thereupon passed an order for attachment before judgment ex parte. Subsequently, the defendants made an application that they should be allowed to show cause and on that application the order appealed from was made.

  3. Learned Advocate appearing for the appellant has taken two points. The first point taken was that the provisions of Order 38, Rule 5 Civil P. C., had not been complied with, His contention is that an order for attachment before judgment can be made only under Order 38, Rule 6 and in order that that rule may apply the conditions laid down in Rule 5 must be satisfied. The point that is made is that the notice that was issued by the learned Subordinate Judge before he ordered attachment before judgment was a general notice. It did not specify that the defendants would have either to furnish security in case the application succeeded and that on their failing to furnish security attachment before judgment would issue. Learned advocate for the appellant has drawn our attention to the case of Prag Nath v. Mt. Indra Devi AIR1934All456. In this case Sulaiman C. J., and King J. said that non-compliance with Rules 5 and 6 of Order 38 amounted to an irregularity, and the order passed without complying with these rules was as both irregular and objectionable. They, however, went on to hold that the order was not in those circumstances necessarily ultra vires or void ab initio. Their decision in that case was that the order for attachment before judgment should be set aside, but a conditional attachment should be...

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1 practice notes
  • Second Appeal No.6 of 1966. Case: Satish Chandra Roy Vs Haridas Chakraborty and another.
    • India
    • 23 July 1970
    ... ... the order dated 1-10-1964, of the executing Court dismissing the objections of the surety against ... relied on the decision in the case of Ram Prasad v. Somabhai, AIR 1964 Guj 260 ... 5. In the ... The Calcutta High Court held in the case of Amulya Ratan v ... Court took an identical view in the case of Badri Prasad v, Babulal, AIR 1950 Cal 368. It was ... ...
1 cases
  • Second Appeal No.6 of 1966. Case: Satish Chandra Roy Vs Haridas Chakraborty and another.
    • India
    • 23 July 1970
    ... ... the order dated 1-10-1964, of the executing Court dismissing the objections of the surety against ... relied on the decision in the case of Ram Prasad v. Somabhai, AIR 1964 Guj 260 ... 5. In the ... The Calcutta High Court held in the case of Amulya Ratan v ... Court took an identical view in the case of Badri Prasad v, Babulal, AIR 1950 Cal 368. It was ... ...

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