H. N. TILHARI, J. ( 1 ) THIS is a revision from the order of civil judge gadag, dated 16-8-1995, on an application under order 38, Rule 5 read with Section 94 (b) and Section 151 of Code of Civil Procedure moved in os No. 24 of 1995, for attachment of the lands bearing revenue survey nos. 88/1 and 88/2 situate at tegginabhavanur village in shirhatti taluk, dharwad district. ( 2 ) I have heard the learned counsel for the petitioner sriananth k. Navalgimath and Sri rayareddy assisted by miss. Vijayalakshmi patil. Learned counsel for the petitioner Sri navalgimath submitted that the order of attachment is illegal and without jurisdiction as it has been passed without complying with the requirements of sub-rule (1) of Rule 5 of order 38 of Code of Civil Procedure. In support of his contention, learned counsel for the petitioner placed reliance on the decision of this court in the case of Palghar Rolling Mills Private Limited v Visweswaraiah Iron and Steel, Limited. Sri Navalgimath further submitted that, court has misapplied the basic principles of law while exercising its jurisdiction. The learned counsel submitted that the court has observed this order that because the defendant has denied his liability to the claim made in the plaint, so there was a fit and proper case made out for attachment before the decree. The learned counsel submitted this approach of the court is really illegal and tainted by illegality as it means that no person in such cases is entitled to deny the claim made against him and no person is entitled to contest the claim made against him. The court appears to observe as if the defendant has to admit the claim of the plaintiff and if he does not admit, then it should be taken that the power under order 38, Rule 5 should be exercised. Learned counsel lastly submitted that, he had filed the objections to the application of attachment before judgment as well as to his being called for furnishing security and in that objection he has also denied the allegation that defendant was going to alienate or remove his property. But, that has not been considered. Instead the court without applying its mind to the affidavit without holding that allegation was incorrect simply passed a telegraphic and mechanical order saying that, I have considered the objections and there are no merits. But, that has not been considered. Instead the court without applying its mind to the affidavit without holding that allegation was incorrect simply passed a telegraphic and mechanical order saying that, I have considered the objections and there are no merits. But it has not applied to it what objections have been taken by the defendants in their memo of objection. Learned counsel submitted that, as such the order of attachment before judgment is per se illegal and without jurisdiction as the power to attach or to issue direction under order 38, Rule 5 is subject to conditions which are sin qua non namely the satisfaction of the court that the defendant with intent to obstruct or to delay of execution of decree that may be passed against him is about to dispose of whole or any part of his property or to remove his whole or any part of the property from the local limits of the jurisdiction of the court. No such specific finding has been recorded by the court in this order. ( 3 ) ON behalf of the opposite parties Sri rayareddy contended that, earlier a conditional order of attachment was passed, that order is not under challenge. Nodoubt Sri rayareddy very fairly submitted that, so far when the court observed that considered objection, no merits but as there is nothing mentioned in the order about the contents of the objection it may be argued that, court has not applied its mind to the objections itself. Sri rayareddy further very fairly submitted that, the satisfaction of the court to the effect that the defendant is about to dispose of the property whole or in part or to remove his property whole or in part with the object to frustrate or to delay the execution of the decree is condition precedent to the passing of order under order 38 of the code as such as well finding thereon was needed to be recorded. But, as the conditional order has not been challenged, so, there is no need to go into this question. In the end, Sri rayareddy submitted that if the court is satisfied that there is any illegality in exercising jurisdiction, it is better while disposing of the revision that the subordinate court may be directed to consider the application afresh. But, as the conditional order has not been challenged, so, there is no need to go into this question. In the end, Sri rayareddy submitted that if the court is satisfied that there is any illegality in exercising jurisdiction, it is better while disposing of the revision that the subordinate court may be directed to consider the application afresh. ( 4 ) I have applied my mind to the above contentions of the learned counsels for the parties. There is no dispute that the proposition that jurisdiction of this court under Section 115 of the Code of Civil Procedure is limited to the jurisdictional error. When power is given to a court or to an authority to do certain things subject to existence or establishment of certain condition precedents then, until and unless these conditions are shown to exist it is not open to the court to exercise power and it is the duty of the court to first of all to consider and record the finding as to the existence of conditions. It is also well settled that if power is given to do certain things in a certain manner and mode is prescribed while providing certain powers to be exercised, it is well settled principle of law that power has got to be exercised in that manner alone and not otherwise as other modes are closed. Thus, keeping in view these principles it appears that if the order has not been passed in accordance with the requirements of order 38, Rule 5, then such an order can be said, to be without jurisdiction or to have been passed illegally and with material irregularity. In the present case, I may mention that order 38, Rule 5 is a complete process for passing of conditional order of or the order of attachment and while passing the order of attachment the court has to indicate whether there was a satisfaction of those condition precedents or those condition precedents have been established satisfactorily. In the present case it does not appear that the court has applied its mind to this first essential condition. No such finding appears to have been recorded after consideration of the affidavits filed by both the sides that court was satisfied that defendant was about to dispose of his properly wholly or in part so as to frustrate or delay the execution of decree. No such finding appears to have been recorded after consideration of the affidavits filed by both the sides that court was satisfied that defendant was about to dispose of his properly wholly or in part so as to frustrate or delay the execution of decree. Secondly, i find that in this case the lower court has observed that when defendant has denied his liability to pay the arrears of rend and inturn contended that she has paid the entire arrears of rent without producing the requisite receipts, it held that as such plaintiff has made out a prima facie case. I am surprised with this observation of the court below and with such an approach of court below. If the ingredients of order 38, Rule 5 have to be judged on the basis of such reasoning as given by the trial court then it definitely is likely lead to one thing that no party should not put defence to the claim made against it and it will have an effect of depriving him of his right to defence. As such, an approach is altogether illegal and really when the finding is recorded that a prima facie case is made out on the basis of misapplication of the principles of law in this regard, such a finding can be said not only to be an erroneous finding but to be the result of courts acting illegally. Thirdly, i find in this case, the court has mentioned in the last para, "on a consideration of the objections filed by the defendant, i do not find any merits in them and consequently, they are liable to be rejected" and thereafter passes the order that la. I is allowed and defendant was directed to furnish security within 15 days from the date of this order and in case defendant failed to furnish security to attach the lands described above. In para 15 it has again mentioned that "defendant has filed objections to la. Ii. On perusal of the objections, i do not find any merits in them and consequently, they are rejected. Then it observed or say, the court held that la. Ii deserve to be allowed and directed to issue intimation to the tahsildar to attach the property. What was the objection taken by the party is not clear from the order. Ii. On perusal of the objections, i do not find any merits in them and consequently, they are rejected. Then it observed or say, the court held that la. Ii deserve to be allowed and directed to issue intimation to the tahsildar to attach the property. What was the objection taken by the party is not clear from the order. Why the court found that those objections did not have any merits, there is no reason indicated in the order to justify rejection by one sentence. This clearly indicates nothing but a sterio type way of passing order without application of mind, such process has to be deprecated. Passing of order without applying mind to the objections is an illegality. Copy of the objections has been placed before me by the learned counsel for the parties. Defendant had denied the allegation that he is going to dispose of the property. The court does not appear to have applied its mind. Thus considered in my opinion, this order prima facie shows a glaring illegality on the part of the court below in disposing of the application under order 38, Rule 5. So, passing such an order in a mechanical manner without applying mind definitely has got a tendency to cause irreparable injury to a person and to his prestige. Thus considered in my opinion, the order in question deserves to be set aside. Thus, the revision deserves to be allowed and is allowed. The order impugned dated 16-8-1995 is set aside. --- *** --- .