These appeals are directed against the order passed by the learned Subordinate Judge, Salem directing the 1st respondent to furnish security, and passing a conditional order, and also thereafter making the interim order absolute.

2. It is seen that the 1st respondent herein has filed, a suit against the petitioner for recovery of a sum of Rs.42,275 alleging that as per the agreement, he has not paid the amount towards the work completed by him. He also filed an application, namely, I.A.422 of 1987 for attaching the amount before judgment in the cash credit account of Kaveri Mudali Mines, Minerals and Chemicals with the State Bank of India, Harur, by issuing a pro-order prohibiting the garnishee from making payment of any amount in the account of the 1st respondent and restraining the 1st respondent from withdrawing any amount. IA.423 of 1987 was filed for directing the appellant herein to furnish cash security to the extent of the suit claim within time stipulated by the Court failing which order of attachment before Judgment has to be made. It is seen, in the affidavit filed in support of the two applications, the 1st respondent has alleged that the appellant herein, with intent to delay and defeat his lawful claim, is trying to transfer his bank amount to some other account, and is trying to alienate his only property, and if the appellant is allowed to do so, it will be difficult to realise the amount. Both the applications were filed under 0.38, R.5 and S.151 of the Code of Civil Procedure.

3. The applications were resisted by the appellant herein putting forth various contentions denying the liability. In addition to that, he has also given an undertaking that he will not alienate the property.

4. In I.A.No.422 of 1987, the Court below passed the following Order:

Heard. Interim attachment and notice by 16.4.87.

On 30.4.1987, it passed a final order to the effect that since the cheque issued by the appellant herein bounced, the order of interim attachment already passed cannot be said to be in any way erroneous and hence attach. Similarly, in I.A.No.423 of 1987, in respect of the immovable property, the Court below has passed the following order immediately on receipt of the application on 16.3.1987:

"Heard. Interim conditional attachment on the failure of respondent to furnish security for Rs.45,000 within 15 days and notice by 16.4.87."

Thereafter, after the appellant herein entered appearance and appeared through lawyer, it passed the final order on 30.4.1987 to the effect that, whereas it is seen that the respondent has not furnished, security, and he has only given an undertaking that he would not alienate the property, the attachment order is confirmed. Aggrieved by the same, the above two appeals were filed.

5. C.Selvaraju, learned counsel appearing for the appellant, mainly submitted that the orders passed by the Court below are vitiated as the Court below had not adverted its mind to the relevant provisions of 0.38, R.5 of the Code of Civil Procedure. There is absolutely nothing to show that the Court below had satisfied that the ingredients which are necessary for passing the order are made out. Further, the Orders passed by the Court below are not speaking orders. The various contentions raised by the appellant in the counter affidavit have not at all been considered and there is no finding to the effect that the appellant herein 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, which are the necessary ingredients for ordering attachment. Further, in this case, the Court below has not mentioned the value of the property to be attached. As such, the order passed by the Court below is liable to be set aside.

6. On the other hand, learned counsel for the respondent only submits that the Court below is empowered to pass such an order and that has been done here. The fact that the lower Court has got the power to order attachment is not disputed. But the question is, whether the Court below has passed the order after satisfying itself that the ingredients for passing such order were available in the case. Learned counsel appearing for the respondent has fairly conceded that such a finding is lacking in this case. But he only wants the appellant to file an undertaking before this Court that he would not alienate the properties to which course the learned counsel for the petitioner also agrees.

7. The trial Court ought to have passed a speaking order. It is worthwhile to refer to certain decisions of this Court on this aspect so that such things should not be repeated by the Court below in future in the matter of passing orders ordering attachment before judgment. In N. Pappammal v. L. Chidambaram, (1984)1 M.L.J. Page 148, Ratnam, J. has held as follows:

"In dealing with the applications for attachment before judgment, it is the first and foremost duty of the Court to be satisfied from the particulars made available that the defendant is about to dispose of the whole or any part of his or her property or he or she is about to remove the whole or any part of his or her property from the local limits of the jurisdiction of the Court with a view to delay or defeat or obstruct the execution of any decree that may be passed against him or her. Therefore, the Court should issue a notice in an appropriate form conforming to the requirements of 0.38, R.5(l), Civil Procedure Code, and setting out the details specified thereunder to the defendant; within a time to be fixed by it, either calling upon him or her to furnish security in such sum as may be specified in the order or to produce and place at the disposal of the Court the property so specified in the application or the value of the same, or even such portion thereof as maybe sufficient to meet the decree, or the notice may merely direct the defendant to appear and show cause why he or she should not furnish security for the amount claimed in the suit. No particular form of notice in use for this purpose has been brought to the notice of the Court except the one in Form 5 in Appendix F, which is really addressed to the bailiff by Court. It is, therefore, imperative in view of O.38, R.5(4) Civil Procedure Code, that a notice on the lines of Form 5 in Appendix F with the necessary changes conforming to the requirements of 6.38, R.5(l), Civil Procedure Code, should be prescribed for use."

In P. Ramaswamy v. Sri Dhandayuthapani Finance, Sankari, A.I.R. 1986 Mad. 360, [LQ/MadHC/1986/179] Sathiadev, J. has held as follows:

"Under R.5(1) it is open to the Court either to ask for security coupled with production of the property or to remit its value or such portion of the decree as may be found reasonable, and if not, to issue notice to defendant to appear and show cause as to why he should not furnish security. Hence, it is for the court, either to ask for earlier part of the requirements or to direct defendant to appear for showing cause relating to furnishing of security. In the instant case, plaintiff himself asked for issue of notice, as a first requirement, before attachment could be effected. But, before-ever defendant is heard by court about furnishing of security, the order of the Court below has gone beyond the pleas of plaintiff by imposing a default clause resulting in attachment being effected. The requirements of R.5(l) not being complied with, there is no alternative left than to hold that the attachment is void under R.5(4).

In T. Srinivasan and another v. V. Srinivasan, (1985)98 L.W. 78: 1984 T.L.N.J. 449: A.I.R. 1985 Mad. 269, [LQ/MadHC/1984/425] Nainar Sundaram, J. has observed as follows:

"A mechanical adaptation of the language of the relevant provision of the Civil Procedure Code, herein after referred to as the Code, namely, O.38, R.5 thereof would not suffice the purpose. There must be positive and definite material on the two points set out in 0.38, R.5 of the Code, namely, (1) that the defendant is about to dispose of the whole or part of his property, and (2) that the disposal is with the intention of obstructing or delaying the execution of any decree that may be passed against him. An attachment before judgment is not a process to be adopted as a matter of course.

In the present case, the plaintiff is stated to have filed an affidavit of one Jagannathan on the question of apprehended alienations to defeat and delay the execution of any decree which may ensue against the defendants. Nothing is disclosed and much less, the Court below has discussed as to the credentials of the said Jagannathan to speak about the material averments and the persuasive or evidentiary value of such averments. Furthermore, the court below has not given a finding that the apprehension of the plaintiff that the first defendant is about to dispose of his properties with a view to defeat and delay the claims of the plaintiff, requires acceptance. This certainly will not be a proper exercise of the extraordinary power as contemplated under 0.38, R.5 of the Code. Ratnam, J. in Pappammal v. Chidambaram, (1984)1 M.L.J. 148 has also taken note of the rule for that the Court must be satisfied from the particulars made available that the defendant is about to dispose of the whole or any part of his property with a view to defeat and delay the claims of the plaintiff. I do not find that the requisite satisfaction has been expressed in the fair order of the court below. Bare allegations as stated above, would not suffice the purpose. In this view, I find that the order passed by the Court below cannot be sustained and they require quashing in appellate jurisdiction."

Applying the ratio laid down in the foregoing decisions to the facts of this case, though the respondent/plaintiff is said to have filed an affidavit on the question of apprehended alienations to defeat and delay the execution of any decree which may ensue against the defendant, nothing is disclosed and much less, the Court below has discussed the credentials of the deponent to speak about the material averments and the persuasive or evidentiary value of such averments. Furthermore, the Court below has not also given a finding that the apprehension of the plaintiff that the 1st respondent is about to dispose of his properties with a view to defeat and delay the claims of the plaintiff, requires acceptance. Hence the order passed by the Court below is not proper exercise of the extraordinary power as contemplated under O.38, R.5 of the Code of Civil Procedure as held in the above decisions. There must be a specific finding that the Court below was satisfied from the materials made available that the defendant is about to dispose of the whole or any part of his property with a view to defeat and delay the claims of the plaintiff, or to remove the same. In the instant case, such a finding is lacking. On that ground alone, the orders are liable to be set aside, and accordingly, they are set aside.

8. In the result, both the appeals are allowed. The orders passed by the Court below are set aside, and the petitions filed by the 1st respondent herein are dismissed. However, as agreed to by his counsel, the appellant herein is directed to file an

affidavit before the trial Court giving an undertaking that he would not alienate any of his properties till the termination of the proceedings, on or before 15.10.1987. There will be no order as to costs in these appeals.