A. D. DESAI, J. ( 1 ) THIS is an appeal from the order of the District Judge Mehsana dismissing the objections of the appellant that the proceeding in execution of the decree obtained by respondents Nos. 1 to 6 against him should be discontinued. ( 2 ) BRIEFLY stated the facts are that Regular Civil Suit No. 63 of 1950 was filed by respondents Nos. 1 to 6 against respondent No. 7 who died pending the proceedings and respondents Nos. 7/1 and 7/2 are his heirs who were brought on record for recovering the amount of Rs. 5000/due in respect of certain business transactions. In that suit respondents Nos. 1 to 6 original plaintiffs applied for attachment before the judgment on January 27 1951 under Order 38 Rule 5 of the Code of Civil Procedure. On that application an order was passed by the Civil Judge Junior Division Chanasma on January 29 1951 directing the defendant i. e. deceased respondent No. 7 to furnish security in the sum of Rs. 6000/in default the properties shown in the list accompanying the application were directed to be attached till further order. On January 30 1951 the defendant appeared in the Court and gave an application and prayed that the attachment may not be levied as he was ready to furnish security. On that application an order was passed on the same day. The Court passed an order directing that if the defendant furnished security attachment should not be levied. Shah Mulchand Mohanlal the present appellant stood surety for the defendant for the sum of Rs. 6000/and executed a surety bond on January 30 1951 Thereafter deceased defendant No. 4 filed his reply to the plaintiffs application for attachment before judgment on March 27 1951 It appears that neither the plaintiffs nor the said defendant moved the Court for hearing of the application for attachment before judgment and passing final orders on that application. Ultimately on July 25 1961 a decree for Rs. 3989. 41 P. with running interest at the rate of 6 per cent per annum from the date of the suit till realisation and proportionate cost of the suit was passed in favour of the plaintiffs and against the said defendant. An Appeal No. 59 of 1953 in the District Court was filed and the appeal was allowed dismissing the suit of the plaintiffs. An Appeal No. 59 of 1953 in the District Court was filed and the appeal was allowed dismissing the suit of the plaintiffs. Second appeal was preferred in the High Court. The judgment and decree passed by the District Court were set aside and the suit was remanded to the trial Court. The trial Court thereafter decreed the suit. Appeals against the said judgments and decrees were filed but without success. Thereafter the plaintiffs got the decree transferred to the Court of the Civil Judge Senior Division Mehsana and then filed Regular Darkhast No. 71 of 1961 on November 23 1961 for realising Rs. 6000/out of the amount due under the decree by attachment and sale of the property of surety Mulchand Mohanlal i. e. the appellant. ( 3 ) THE appellant appeared in the said proceeding and filed his objections. He resisted the Darkhast application. It was contended by him that the surety bond was executed in favour of the Court and the Darkhast was not maintainable without the order of the Court. It was further contended that the plaintiffs suit was dismissed and so automatically the surety bond executed by him came to an end and the surety bond was not revived by the subsequent restoration of the suit. The execution of the decree was also objected on the ground that the an order of attachment before judgment was passed exparte and as it was not an order under Order 38 Rule 5 sub clause (3) of the Civil Procedure Code and as the application was not decided on the merits after hearing both the parties the surety bond executed by him could not be enforced against him. An application Ex. 17 was also given on behalf of the surety contending that he was discharged from the liability as the decree holders had discharged the principle debtor by not claiming Rs. 6000/and costs from him in the execution petition. The learned trial Judge rejected the objections raised by the surety and directed the proceedings to proceed further against him. Being aggrieved by the said judgment and order the surety filed Regular Civil Appeal No. 128 of 1962 in the Court of the District Judge Mehsana. The learned appellate Judge dismissed the appeal. It is against this judgment and order that this second appeal is filed. . . . . . ( 4 ) THE contention of Mr. Being aggrieved by the said judgment and order the surety filed Regular Civil Appeal No. 128 of 1962 in the Court of the District Judge Mehsana. The learned appellate Judge dismissed the appeal. It is against this judgment and order that this second appeal is filed. . . . . . ( 4 ) THE contention of Mr. Zaveri was that the provisions of Order 38 Rule 5 (1) have not been complied with in the present case. What is required under these provisions is that the defendant has to furnish security in such a sum as may be specified in the order or place at the disposal of the Court the property or the value of the same or such portion thereof as may be sufficient to satisfy the decree. This object of the rule is also clear contended Mr. Zaveri from the Form VI provided in Appendix F of the Civil Procedure Code (hereinafter referred to as the Code) which the Court has to adopt in view of the provisions of Rule 3 of Order 48 of the Code. It was further argued by Mr. Zaveri that the bond in the instant case referred to the amount of Rs. 6004 being the amount of the claim and costs of the plaintiffs suit and under the bond the defendant No. 7 agreed to pay the same or pay the final decretal amount. The surety bond therefore was not in accordance with the provisions of law because (i) it did not provide that the amount of Rs. 6000/was the amount specified for the production of the property; (ii) the said amount of Rs. 6000/was not fixed as the value of the property but was in respect of the claim and costs of the suit; and (iii) the bond provided for the payment of the decretal amount. The argument of Mr. Zaveri was that the provisions of Order 38 Rule 5 of the Code are mandatory and the Court is required not only to pass an order for security but has also to see that suitable security is taken as required by the provisions contained therein. There can be no valid order in Order 38 Rule 5 contended Mr. Zaveri was that the provisions of Order 38 Rule 5 of the Code are mandatory and the Court is required not only to pass an order for security but has also to see that suitable security is taken as required by the provisions contained therein. There can be no valid order in Order 38 Rule 5 contended Mr. Zaveri unless two requirements are established namely (i) security to produce the property is taken and (ii) in execution of the security bond other things as prescribed by the rules in the Code have been complied with. For the aforesaid contentions Mr. Zaveri relied upon Tripura Modern Bank Ltd. v. Anathbandu Dutta A. I. R. 1954 Assam and Shri Krishna Gupta and another v. Shri Ram Babu and others A. I. R. 1967 All. 136. ( 5 ) MR. Patel appearing for the respondents argued that the provisions of Order 38 Rule 5 of the Code are very much wide and provide for taking surety for the production of specified property as well as for calling upon the defendant to furnish any other kind of security. For this argument reliance was placed on the expression show cause why be should not further security occurring in Order 38 Rule 5 (1) of the Code. Mr. Patel further contended that sec. 94 of the Code gives power to the Court to call for security and Order 38 Rule 5 (1) of the Code lays down the manner in which the power is to be exercised and accordingly deals with the matter of procedure regulating the mode of exercise of jurisdiction that exists independently of Order 38 Rule 5 of the Code as the same is derived from sec. 94 of the Code. Inasmuch as the Court has jurisdiction to order attachment before judgment such attachment or taking of security is prima facie be regarded as valid and operative unless set aside in the manner provided by law by the party prejudicially affected by it. Non compliance with the provisions of this rule amounts to mere irregularity and an order passed by the Court without complying with these provisions is both irregular and objectionable but it is not ultra vires i. e. void ab initio and the subsequent proceedings are not void. In the present case contended Mr. Non compliance with the provisions of this rule amounts to mere irregularity and an order passed by the Court without complying with these provisions is both irregular and objectionable but it is not ultra vires i. e. void ab initio and the subsequent proceedings are not void. In the present case contended Mr. Patel the surety did not raise any objection to the form of the surety bond when it was executed and hence the surely is now restrained from challenging the same. ( 6 ) NOW the relevant part of Order 38 Rule 5 (1) of the Code runs as under:-ORDER 38 R. 5 (1):- Where at ally stage of a suit the Court is satisfied by affidavit or otherwise that the defendant with intent to obstruct or delay the execution of any decree that may be passed against him (A) is about to dispose of the whole or any part of his properly or (b) 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 in such sum as may be specified in the order to produce and place at the disposal of the Court then required the said property or the value of the same. or such portion thereof as may be sufficient to satisfy the decree or to appear and show cause why he should not furnish security. THE provisions of this rule can be divided into 3 parts. The first part relates to the satisfaction of the Court in respect of the certain factors before the jurisdiction to pass an order thereunder is exercised. This part of the rule is in the nature of condition precedent to the exercise of the power. The second part of the section relates to the furnishing of the security. And the third part relates to show cause notice The argument of Mr. Patel that under Order 38 Rule 5 of the Code any kind of security can be passed by the Court cannot be accepted. The second part of the section relates to the furnishing of the security. And the third part relates to show cause notice The argument of Mr. Patel that under Order 38 Rule 5 of the Code any kind of security can be passed by the Court cannot be accepted. Sec. 94 of the Code so far as is relevant provides that in order to prevent the ends of justice from being defeated the Court may if it so prescribed direct the defendant to furnish security to produce any property belonging to him and to place the same for the disposal of the Court or order the attachment of any property. The security which is to be furnished as contemplated by the provisions of this section is for the production of any property belonging to the defendant. The section therefore makes no reference to any other kind of security. The rules framed under the said section cannot be so interpreted as to go beyond the main provisions of the section and it is in this light that the provisions or Order 38 Rule 5 (1) of the Code have to by interpreted. What the provisions of this rule provide is that the Court may direct the defendant either to furnish security to produce the property or value thereof or such portion of the value of the property as may be sufficient to satisfy the decree and/or to appear and show cause why he should not furnish the security for production of the property and to no other kind of production of the property and to no other kind of security. Form No. V Appendix F also supports the same interpretation. ( 7 ) THERE is no dispute that in the present case the security bond is not in accordance with the provisions of Order 38 Rule 5 of Form No. VI Appendix F of the Code. The question is what is the effect of this defect. Is the defect a fundamental one rendering the surety bond vaid ab initio or is it a mere irregularity which renders it voidable and the surety having not raised any objection to it at the time of its execution is now stopped from challenging the validity thereof. The question is what is the effect of this defect. Is the defect a fundamental one rendering the surety bond vaid ab initio or is it a mere irregularity which renders it voidable and the surety having not raised any objection to it at the time of its execution is now stopped from challenging the validity thereof. Sec. 94 of the Code provides that in order to prevent the ends of justice being defeated if it is so prescribed the Court can direct the defendant to furnish security to produce any property belonging to him and place before the Court for disposal of the Court or order the attachment of the property. The word prescribed is defeated in sec. 2 (16) of the Code and means prescribed by rules. Sec. 94 of the Code empowers the making of the rules and the rules to be made must be such as to prevent the ends of justice from being defeated. The Supreme Court in Manohar Lal Chopra v. Bai Bahadur Rao Raja Seth Hiralal A. I. R. 1962 S. C. 527 considered the effect of expression if it is so prescribed occurring in sec. 94 of the Code and observed in para 18 at page 532 of the judgment as under:-THE effect of the expression if it is so prescribed is only this that when the rules prescribed the circumstances in which the temporary injunction can be issued ordinarily the Court is not to use its inherent powers to make the necessary orders in the interests of justice but is merely to see whether the circumstances of the case bring it within the prescribed rule. THE provisions of Order 38 Rule 5 (1) of the Code prescribe certain conditions precedent on the compliance of which the Court can exercise its jurisdiction to pass an order for furnishing security or attachment of the property of the defendant. If these conditions are being not satisfied the order to furnish security or attachment of the property would be bad and null and void. There is no dispute that in the instant case the Court had been satisfied that the grounds necessary for making the order under Order 38 Rule 5 (1) of the Code existed. Thus the Court had the jurisdiction under sec. There is no dispute that in the instant case the Court had been satisfied that the grounds necessary for making the order under Order 38 Rule 5 (1) of the Code existed. Thus the Court had the jurisdiction under sec. 94 and Order 38 Rule 5 of the Code to pass the order for taking security or attachment of the defendants properly. The question now is what is the effect of not passing the order for furnishing security in accordance with the provisions of Order 38 Rule 5 of the Code. In order to consider this the object of the section and the rule has to be noticed and the real object is to prevent the decree that may be passed being rendered infructuous and to enable the plaintiff to realise the amount of the decree from the property of the defendant or his surety. The rules relating to furnishing of security in a particular form are mere procedural. This is a matter of procedure and not of jurisdiction. The jurisdiction over the subject matter was derived when it fulfilled the conditions laid down under sec. 94 and Order 38 Rule 5 of the Civil Procedure Code. It is thereafter that certain procedure prescribed by the rules for furnishing the security is to be followed. The difference between the matter of procedure and one of the jurisdiction is pointed out by the Lordships of the Privy Council in Kunwar Jang Bahadur v. The Bank of Upper India Ltd. 30 Bom. L. R. Page 1373 in these words:-THIS is a matter of procedure and not of jurisdiction. The jurisdiction over the subject matter continues as before but a certain procedure is prescribed for the exercise of such jurisdiction. If there is non compliance with such procedure the defect might by waived and the party who has acquiesced in the Court exercising it in a wrong way cannot afterwards turn round and challenge the legality of the proceedings. EVERY act done by the Court in contravention of the provisions of the statute is not necessarily beyond the jurisdiction or a nullity. Having regard to the object for which the provisions for attachment before judgment it is clear that in the instant case the Court acted at the most in a irregular manner in the exercise of its jurisdiction. EVERY act done by the Court in contravention of the provisions of the statute is not necessarily beyond the jurisdiction or a nullity. Having regard to the object for which the provisions for attachment before judgment it is clear that in the instant case the Court acted at the most in a irregular manner in the exercise of its jurisdiction. In that view of the matter the remedy of the surety was to bring to the notice of the Court the irregularity when he appeared before the Court and executed the surety bond. Where a party acquiesces in a irregular procedure it cannot subsequently turn round and challenge the legality of the procedure. The result is that the rules relating to the manner in which the security bond is to be furnished are procedural and in the instant case as the irregularity in the procedure was not earlier objected to by the surety he is now stopped from challenging the illegality in the procedure. ( 8 ) NOW I shall refer to the various authorities cited by the learned advocates. In Tripura Modern Bank Ltd. (supra) the order passed by the Court under Order 38 Rule 5 of the Civil Procedure Code was not in accordance with the said provisions because there was an unconditional order directing certain bills to be attached and the surety had undertaken to produce the amount of the respective bonds if the decretal amount could not be recovered from the judgment debtor. The undertaking given was not according to Rule 5 and bonds which were executed were not as prescribed in Form No. VI Appendix F. In considering the provisions of Order 38 Rule 5 of the Civil Procedure Code in the light of the aforesaid facts Their Lordships observed:-IT is obvious that the surety bonds do not embody undertaking contemplated by Rr. 5 6 and 9 of O. 38 as is clearly shown by the language of r. 5 cl. (1) and of the prescribed form. The omission in the bonds goes to the root of the matter The terms of the bonds put on the decree holder the burden of proceeding against the judgment debtor and it is only after he has exhausted his remedies against the judgment debtor that he may be in a position to pursue the sureties. The omission in the bonds goes to the root of the matter The terms of the bonds put on the decree holder the burden of proceeding against the judgment debtor and it is only after he has exhausted his remedies against the judgment debtor that he may be in a position to pursue the sureties. The deviation from the requirements of the law thus is a matter of substance and not of from. . . . THE intention of the law is not to accept such bonds when an order of attachment of property has been made which if allowed to stand will help the decree holder to realize his money immediately after the decree is passed. The security offered to the plaintiff in place of attachment has to be a reasonable substitute. Compliance with the requirements of the law in the matter of bonds therefore is necessary. TOO much importance was given to the form and the same was considered a matter of substance. The object for which the provisions of sec. 94 and Order 38 of the Code have been enacted had not been considered. For the reasons already given with greatest respect unable to accept the proposition of law laid down therein. ( 9 ) IN Sri Krishna Guptas case (supra) the question that arose was whether the attachment in fact was effected The learned Judges delivering the judgment relied upon the decision of Privy Council in Muthiah Chetti v. Palaniappa Chetti 30 Bom. L. R. page 1353 as the question which arose before them was finally decided by the Privy Council. It will be better therefore to refer to the Privy Councils case in Muthiah Chetti (supra ). In this case the plaintiffs who were doing money lending business brought a suit against two ladies who represented their minor sons also claiming a decree for debt of Rs. 38430. 00. The suit was filed on February 14 1910 an application for attachment before judgment of the immoveable properties of certain defendants was filed and on March 18 1910 the Court passed an order of conditional attachment. On March 19 1910 the two ladies executed a mortgage which covered all the properties belonging to the defendants whose properties were attached. 00. The suit was filed on February 14 1910 an application for attachment before judgment of the immoveable properties of certain defendants was filed and on March 18 1910 the Court passed an order of conditional attachment. On March 19 1910 the two ladies executed a mortgage which covered all the properties belonging to the defendants whose properties were attached. On April 4 1910 the Court made an order of attachment absolute in the following terms:-NO objection to attachment subject to mortgage already created in favour of Muthu Chetty. Petitioner does not admit any such mortgage at present and wants the attachment as asked for. Attachment and order made absolute. ULTIMATELY a decree was passed in favour of the plaintiffs. An application for execution was filed and the plaintiffs in execution purchased the property which was given in security. The mortgagee of these properties had filed objections in execution but they were dismissed on the ground that the mortgage transaction was a sham transaction. Thereafter the mortgagees filed civil suit to recover the amount of the mortgage with interest and also claimed a declaration that the right set up by the purchasers was invalid. The question which arose before the Court was whether the suit was barred by limitation under the provision of Article 11 of the Schedule T of the Indian Limitation Act which provided that the suit should be instituted within one year from the date of rejection of objections to the attachment of the properties attached in the execution. The question which arose before the Lordships was whether there was any attachment of properties as required by law. The Lordships referred to various provisions of Civil Procedure Code relating to attachment of property and observed:-THESE instances go to show that under the Civil Procedure Code in India the most anxious provisions are enacted in order to prevent a mere order of a Court from effecting attachment and plainly indicating that the attachment itself is something separate from the mere order and is something which is to be done and effected before attachment can be declared to have been accomplishedtheir Lordships came to the conclusion that the finding of the Court was that order of attachment remained on paper and there was no defecto attachment of the property and Their Lordships observed:-THE order is one thing the attachment is another. No property can he declared to be attached unless first the order for attachment has been issued and secondly in execution of that order the other things prescribed by the rules in the Code have been done. THESE remarks made by Their Lordships must be understood with reference to the facts of the case. The case before Their Lordships was of a paper attachment and it was for this reason that Their Lordships came to the conclusion that the case before the Board was one in which he order was not defective in form the order was from the beginning a nullity. In the present case as I have already pointed out the defect is merely of procedure which is a defect in form and therefore the decision in Muthiahs case (supra) is inapplicable to the facts of the present case. ( 10 ) MR. Patel relied on the decision in Dhian Singh Sobha Singh v. Secretary of State through Deputy Commissioner Nimar and another A. I. R. 1645 Nagpur 97. The facts of the case were that no notice under Order 38 Rule 5 (1) of the Code was issued to the defendant in respect of the conditional order which was passed by the Court and the question arose whether the order of attachment was valid. While considering the question of validity of the order the learned Judges observed:-THE jurisdiction of the Court to attach property before judgment is indicated by the words if so prescribed in sec. 94 and that condition is satisfied when rules are made to order attachment of any property of the defendant. The meaning of the expression if so prescribed would be clear when they are compared with the words subject to such conditions and limitations as may be prescribed occurring in sec. 107 Civil P. C. Prescribed means prescribed by rules (see sec. 2 (16) Civil P. C ) the latter case if the rules prescribe any conditions or limitations as affecting the jurisdiction of the Court the jurisdiction cannot arise unless the conditions or limitations are satisfied. Sec. 94 merely says so prescribed and does not like sec. 107 say subject to conditions and limitations as may be prescribed. Rules 5 and 6 of O. 38 bring into effect the jurisdiction that is conferred by sec. Sec. 94 merely says so prescribed and does not like sec. 107 say subject to conditions and limitations as may be prescribed. Rules 5 and 6 of O. 38 bring into effect the jurisdiction that is conferred by sec. 94 in so for as they make it clear that the Court has power to order attachment before judgment. In the absence of words such as those used in sec. 107 (1) Civil P. C. the other provisions made in R. 5 and 6 of O. 38 must be interpreted as laying down the manner in which the Courts jurisdiction is to be exercised and accordingly regarded as dealing with matter of procedure regulating the mode of exercise of a jurisdiction that exists. On this view any error in the manner of the exercise of the jurisdiction conferred by sec. 94 would not effect the validity of the Courts and if the Courts jurisdiction is derived from a source independent of the provisions which merely prescribe the manner of its exercise. THE decision of the Privy Council in Muthiah Chettys case (supra) was not brought to the notice of the learned Judges. The decision no doubt supports Mr. Patel in his contention but the law has been broadly stated therein. All the provisions of Order 38 Rule 5 of the Civil Procedure Code are not procedural and on this point I need not repeat what I have stated earlier. The decision does support Mr. Patel that in so far the rules relating to furnishing security are concerned and which are contained in order 38 Rule 5 (1) of the Civil Procedure Code are mere procedural. To the same effect is the decision reported in Madhavan Pillai Somanatha Pillai and another v. State of Kerala and others A. I. R. 1966 Kerala 212 (F. B.) and the learned Judges in this case heavily relied on the decision of the Nagpur High Court just referred to and it is therefore not necessary to refer to this decision in detail. Mr. Patel then relied on the decision in Amulya Ratan v. Prosad Chandra Kar A. I. R. 1936 Calcutta 143. The bond in that case recited that the executants themselves personally liable to the extent of Rs. Mr. Patel then relied on the decision in Amulya Ratan v. Prosad Chandra Kar A. I. R. 1936 Calcutta 143. The bond in that case recited that the executants themselves personally liable to the extent of Rs. 860/i. e. for the amount that might he decreed against the defendants and the surety promised to pay the same if the decretal amount be not realised from the judgment debtor. The surety bond was thus not in accordance with Order 38 Rule 5 Civil Procedure Code. The learned Judge took the view that the rules relating to furnishing of surety contained in order 38 Rule 5 of the Civil Procedure Code were mere procedural and the surety being a party to the irregular procedure was stopped from challenging the legality of the procedure. The judgment thus fully supports my view that the provisions of Order 38 Rule 5 of the Code relating to furnishing of security are merely procedural. Mr. Patel then relied on the decision in Section Appeal No. 480 of 1964 delivered by my brother J. B. Mehta J. On February 20 1970 where the bond was in similar terms as in this case. The question about the validity of the bond was raised before the learned Judge who held that the bond substantially complied with the legal requirements meaning thereby that the irregularity was in procedure and not a substantial one. The result is that in my view the surety is now stopped from challenging the legality of the surety bond due to his previous conduct of not making any challenge to the said irregular procedure. . . . . . . . . . . . . . . . . [ The rest of the judgment is not material for the reports. ] .