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 maintained and the case should be sent back to the Court which levied the attachment to go into the question after issuing a proper notice in accordance with the rules. I think that that is the most that the appellant can get in this case. This point about the notice being defective was not raised in the Court below and it strikes me that if this irregularity was really felt as a hardship, it would have there been taken. Dr. Sen Gupta appearing for the respondents made an offer that he wag prepared to accept security here if security was offered. Learned advocate for the appellant was, however, in the absence of his client not in a position to make any offer as to security.
4. The next point that was raised was that the suit was defective inasmuch as the plaint showed that the money had been borrowed by Kaliprosad who it appears is now dead and that Kaliprosad was the son of defendant 1. It is contended that so long as the father is alive it is not possible under the Hindu law for the son to incur a debt which would be binding on, the joint family. It appears to us that as to whether Kaliprosad had the power to bind the entire family by a debt incurred by him is a question of fact. He could have been held out as a person who had the power to incur a debt for the purposes of the entire family. We do not propose at this stage to go into that question of fact. The learned Judge in the Court below had held on the prima facie evidence before him that Kaliprosad had power to bind the whole family and it has not been shown to us that that decision is in any way wrong. In those circumstances the second point taken on behalf of the appellant must fail.
5. In the view that we have taken of the judgment of Sulaiman C. J. and King J., we think that we should make in this case an order as was there made. We would therefore set aside the order for attachment and send the case back to the Subordinate Judge, Asansol, to proceed with the matter in compliance with Order 38, Rules 5 and 6. In the meantime, however, there will be a conditional attachment of the property which has already been attached and this will last till the final order is made by the learned Subordinate Judge. As to costs we do not think that any order for costs should be made in this appeal for this point was not taken in the Court below. The only point that the respondents will be entitled to raise in the Court below will be as to the amount of security to be furnished. They will not be entitled to contend that the order for attachment before judgment should not be made.