Judgment : 1. 1. In C.M.P.No.4691/2008, this Court granted interim suspension. C.M.P.No.7201/2008 is filed praying for vacation of the interim suspension. 2. 2. When the matter is coming up before this Court under the caption "Interlocutory", the Counsel on record made a request for disposal of the Civil Revision Petition itself and thus this Civil Revision Petition itself is being disposed of finally by this Court after hearing the Counsel on record. 3. 3. TheRevision Petitioner also filed reply affidavit in C.R.P.M.P.No.7201/2008. 4. 4. Sri V.S.R. Anjaneyulu, the learned Counsel representing the Revision Petitioner would maintain that the learned II Additional District Judge, Amalapuram failed to consider that it is an established cardinal principle of law through a catena of decisions that while interpreting Order XXXVIII Rule 5 of the Code of Civil Procedure (hereinafter in short referred to as "Code" for the purpose of convenience) an order of attachment cannot straight away be made unless the defendant is directed to furnish security and on failure to pay the same attachment order can be made. The learned Counsel also would maintain that the learned Judge failed to consider the effect of Order XXXVIII Rule 5 of the Code and the learned Judge also had not recorded any reasons for ordering attachment before Judgment. The learned Counsel also would maintain that the learned Judge having ordered notice and having recorded that notice sent to the respondent had not been returned, committed serious mistake in ordering attachment of the petition schedule property which belongs to the company. The learned Counsel also would maintain that even if the affidavit filed along with the application under Order XXXVIII Rule 5 of the Code to be carefully examined, the said averments do not satisfy the mandatory requirements of the said provision. The Counsel would further maintain that the learned Judge failed to consider the effect of Order XXXVIII Rule 5(4) of the Code and if any order of attachment is made without applying the provisions of Order XXXVIII Rule 5(1) of the code, such attachment shall be void. The Counsel would further maintain that the learned Judge failed to consider the effect of Order XXXVIII Rule 5(4) of the Code and if any order of attachment is made without applying the provisions of Order XXXVIII Rule 5(1) of the code, such attachment shall be void. The Counsel also would maintain that the learned Judge ought to have seen that it is not the case of the plaintiff/respondent that the petitioner/defendant with intent to obstruct or delay the execution of any decree that may be passed against him is about to dispose of the whole or any part of his property or is about to remove the whole or any part of the property from the local limits of the jurisdiction of the Court. Hence, the learned Counsel would maintain that the order under challenge is being challenged in this Civil Revision Petition filed under Article 227 of the Constitution of India. The Counsel also had taken this Court through the averments made in the affidavit filed in support of the application in C.R.P.M.P.No.4691/2008 and also the averments made in the affidavit filed in support of C.M.P.No.7201/2008 and also the averments made in the reply affidavit as well. 5. 5. On the contrary, the learned Counsel representing the respondent/vacate petitioner would maintain that even in the affidavit filed in support of the application praying for suspension, specific undertaking was given not to alienate the property and the same may be recorded. The Counsel pointed out to the relevant portion of the affidavit filed in support of the said application. The learned Counsel also pointed out to several of the merits and demerits and would maintain that in the light of the respective stands taken by the parties, it is clear that the plaintiff made a strong prima facie case for attachment before Judgment and hence inasmuch as the impugned Order does not suffer from any illegality whatsoever, the Civil Revision Petition is liable to be dismissed. 6. 6. Heard the Counsel. 7. 7. The Civil Revision Petition is filed as against an order made in I.A.No.959/2008 in O.S.No.9/2008 on the file of II Additional District Judge, Amalapuram. The said order dated 11-8-2008 reads as hereunder:- "Notice of respondent not yet returned. Respondent called absent. As the respondent is absent and notice is not being served, I feel interim attachment may be ordered. 7. The Civil Revision Petition is filed as against an order made in I.A.No.959/2008 in O.S.No.9/2008 on the file of II Additional District Judge, Amalapuram. The said order dated 11-8-2008 reads as hereunder:- "Notice of respondent not yet returned. Respondent called absent. As the respondent is absent and notice is not being served, I feel interim attachment may be ordered. Hence, attach the petition schedule property by precept and call on 15-9-2008. Meanwhile await notice". It appears, on prior occasion the following order had been made: "Notice of respondent not returned. Respondent called absent. Await notice. Call on 28-7-2008". 1. 8. The respective stands taken by the parties in the affidavit, counter affidavit, reply affidavit and several of the details which had been argued in elaboration i.e., the merits and demerits which may have to be decided at the time of final disposal of the suit need not detain this Court any longer since the principal question to be decided in the present C.R.P. being whether order under challenge suffers from any illegality warranting interference in the present C.R.P. filed under Article 227 of the Constitution of India. 2. 9. Order XXXVIII Rule 5 of the Code dealing with Where defendant called upon to furnish security for production of property reads as hereunder:- .(1) Where, at any 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 property, 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, when 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. (2) Theplaintiff shall, unless the Court otherwise directs, specify the property required to be attached and the estimated value thereof. (2) Theplaintiff shall, unless the Court otherwise directs, specify the property required to be attached and the estimated value thereof. .(3) TheCourt may also in the order direct the conditional attachment of the whole or any portion of the property so specified. .(4) If an order of attachment is made without complying with the provisions of sub-rule (1) of this rule, such attachment shall be void. 1. 10. On an analysis of Order XXXVIII Rule 5(1) of the Code r/w. Order XXXVIII Rule 5(4) of the Code, this Court is thoroughly satisfied that the order impugned in the present C.R.P. cannot stand the test of legal scrutiny. It may be true that the learned Judge might have thought of ordering conditional attachment calling upon the Revision Petitioner/defendant to furnish security, in default the attachment to be effected. However, the learned Judge had not chosen to make such an order. Yet another aspect is that having ordered notice and even prior to the service of notice, having recorded that notice of the respondent not yet returned, making such an order as the respondent was called absent and the notice is not being served, the Court felt the necessity of ordering interim attachment and accordingly ordered attachment of the petition schedule property by precept. 2. 11. Order XXXVIII Rule 5 clearly lays down that the Court of first instance must direct the defendant to furnish security or to show cause why he should not furnish a security and if the Court attaches the property before Judgment without complying with this requirement the attachment will be illegal, ultra vires and would confer no benefit on the plaintiff. Further, the mere passing of an attachment order by the Court in terms of Order 38 Rule 5(1) of the Code without serving it on the defendant cannot be treated as substantial compliance with the statutory requirements and such an order cannot be revived by the failure of the defendant to enquire about the proceedings in court resulting in such an order which was not served on him. Likewise, an order of attachment before judgment unaccompanied by an order directing the defendant to furnish security within a specified period or to appear and to show cause why he should not furnish security is a nullity and it is not a curable irregularity. 3. 12. Likewise, an order of attachment before judgment unaccompanied by an order directing the defendant to furnish security within a specified period or to appear and to show cause why he should not furnish security is a nullity and it is not a curable irregularity. 3. 12. In the light of the settled law, the approach adopted by the learned Judge definitely cannot be sustained. It is no doubt true that in the affidavit filed in support of the application praying for suspension, the Revision Petitioner/defendant had specifically stated not to alienate the petition schedule property. However, since the order impugned in the present C.R.P. cannot be sustained, the same is hereby set aside and the C.R.P. is hereby allowed. But however, in the peculiar facts and circumstances of the case, the matter is remitted to the learned Judge - learned II Additional District Judge, Amalapuram, to hear both the parties and decide the application afresh in accordance with law especially in the light of the stand taken in the affidavit filed in support of the application praying for suspension before this Court. 4. 13. Accordingly, the Civil Revision Petition is allowed to the extent indicated above. No order as to costs.