Judgment:
D.P. Mohapatra, J.
1. In this appeal under Order 43, Rule 1(q) of the Code of Civil Procedure, the appellant seeks to assail the order dated 31-10-81 of the Subordinate Judge, Bhawanipatna, passed in the proceeding arising from the application filed by the respondent under Order 38, Rule 5 read with Section 151 of the Code.
2. The respondent filed Money Suit No. 10 of 1981 for recovery of Rs. 61,700/- from the appellant or in the alternative for attachment and delivery of possession of the truck bearing registration No. ORH 1044. The gist of the allegations in the plaint was that the aforementioned truck was taken on hire purchase basis by the appellant from one Rahas Behari Fakir Narayan on being financed by the respondent. One of the conditions stipulated in the agreement, an oral one, was that the appellant would get the endorsement of hiring in the name of the respondent and may terminate the agreement by paying the amount or by delivering the vehicle to him. He having done neither the respondent was compelled to file the suit for the reliefs noticed earlier. Along with the plaint the respondent filed the application under Order 38, Rule 5, for attachment of the aforementioned truck before judgment and it was registered as M.J.C. No. 59 of 1981.
3. The appellant on being noticed on the application took the stand in his objection that the amount advanced by the respondent to him had been duly satisfied by use of the truck for the business of the respondent. It is revealed from the order sheet of the trial court that on 13-7-81 the court issued conditional order of attachment of the truck (ORH 1044) then in possession of the defendant (appellant) asking him to show cause on or before 25-7-81 as to why he should not furnish security to the extent of the suit claim. The plaintiff (respondent) was directed to take steps for issuing the order of conditional attachment. On 14-7-81 the plaintiffs prayer for sending a special peon for service of the notice on the defendant was allowed by the court. Notices were issued fixing 25-7-81 for S.R. The order dated 25-7-81 reveals that S.R. of attachment was received back with the report of the process server that the order of attachment was served on the appellant but the truck couldnot be attached since the same was not available. It is pertinent to mention here that by this date the defendant had appeared and sought adjournment for filing objection. On 14-8-81 the appellant filed his objection. After several adjournments the case (M.J.C. No. 59/81) was taken up on 3-10-81. In the said order the court observed that despite several adjournments taken by the defendant to show cause against the conditional order of attachment of the vehicle no objection was filed. Instead an application was filed by him requesting the court to call upon the petitioner (plaintiff) to produce documents referred to in paragraph 3 of the petition. On consideration the court made the order of attachment of the truck absolute. In view of the report of the process server that the truck had been removed outside the jurisdiction of the court, a direction was issued to the appellant to produce the truck before the court on 30-10-81. On 31-10-81 when the court took up the matter the appellant moved for adjournment on the ground of illness. The court did not accept the plea and took it as a dilatory tatics of the party to avoid producing the truck as earlier directed. The court reiterated its direction to the appellant to produce the truck and granted time till 9-11-81. This order is under challenge in this appeal.
4. The thrust of the argument of the learned counsel for the appellant is that the direction contained, in the impugned order is erroneous since attachment of the truck was not affected though an order had been passed for the same. Therefore the court was not competent to direct the appellant to produce the truck before it. The learned counsel has also raised objection against the order making the conditional order of attachment absolute.
5. From the discussions in the earlier paragraphs it is clear that the trial court passed the order dated 13-7-1981 directing conditional attachment of the vehicle and giving the option to the defendant-appellant either to furnish security for the claim in the suit or to produce the vehicle on being satisfied about the allegation made by the plaintiff respondent that the defendant was likely to take away the truck in question which was in his possession out of the territorial jurisdiction of the court. It is clear from the averments made in the objection filed by the appellantbefore the court below and the memorandum of appeal before this Court that the truck was in his possession and control and he was plying the same. The truck used to go to different places in the district and sometimes even beyond the State in connection with his business. Therefore there is little scope for doubt that the vehicle was in his possession and control when the order of attachment was passed. No exception could be taken to the direction issued by the court in its order dated 3-10-81 and reiterated in the impugned order directing the appellant to produce the truck so that the order of attachment may be given effect to. It is fundamental that the court which passed the order of attachment was duty bound to ensure its proper implementation and was competent to pass any order for the purpose. It is pertinent to mention here that the order dated 3-10-81 by which the appellant was directed to produce the truck before the court by the specified date is not under challenge in this appeal. The impugned order passed on 31-10-81 does nothing more than repeating this direction and extending time for compliance by the appellant till 9-11-81. As such, even if the order dated 31-10-81 is set aside the previous order dated 3-10-81 would be operative and the appellant is bound to carry out the same. No exception can be taken to the court passing the order of attachment and directing issue of notice on the application under Order 38, Rule 5 of the Code by an order. On a fair reading of the provisions of Order 38, Rule 5, it is clear that no restriction is placed on the power of the court to attach any property though it may be situated beyond its jurisdiction. Accepting the contention raised on behalf of the appellant would mean that a party on receiving notice of the application under Order 38, Rule 5 of the Code could avoid attachment simply by taking the property beyond the jurisdiction of the Court. This would practically render the provisions under Order 38, Rule 5 redundant.
6. On the discussions in the foregoing paragraphs, there is no merit in this appeal which is accordingly dismissed. As there is no appearance on behalf of the respondent, I make no order as to costs.