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Issues Involved:
1. Validity of attachment before judgment due to non-compliance with Order 38, Rule 5, Civil Procedure Code (CPC). 2. Jurisdiction of the court in issuing attachment orders. 3. Distinction between procedural irregularity and nullity. Detailed Analysis: 1. Validity of Attachment Before Judgment: The primary issue in this case was whether an order of attachment before judgment is null and void due to the omission to follow the procedure laid down by Order 38, Rule 5, CPC, or if it is merely an irregularity curable by the acquiescence of the affected parties. The facts of the case reveal that Rajasingh applied for an attachment before judgment against Amiruddin, a contractor, without following the mandatory procedure of Order 38, Rule 5, CPC. Despite this, Amiruddin did not appeal the attachment order but instead applied for compensation, indicating his acquiescence. The trial court held the attachment to be without jurisdiction due to non-compliance with Order 38, Rule 5, and dismissed the suit. However, the District Judge reversed this decision, stating that the non-compliance was not mandatory concerning the garnishee, leading to the case's remand for further proceedings. 2. Jurisdiction of the Court: The court examined whether the non-compliance with Order 38, Rule 5, CPC, invalidates the attachment or merely renders it voidable. The court referred to various precedents, including A.I.R. 1922 Nag. 238 (Bansi Lal v. Sitaram), which held that such an attachment was ultra vires and void. Conversely, other cases, such as A.I.R. 1934 All. 456 (Prag Nath v. Mt. Indra Devi), considered non-compliance as an irregularity that did not render the attachment wholly ultra vires or void ab initio. The court concluded that the provisions of Order 38, Rule 5, CPC, are intended for the protection of the person whose property is attached and are not jurisdictional prerequisites. Therefore, the attachment was not void but merely irregular and voidable at the instance of the affected party. 3. Distinction Between Procedural Irregularity and Nullity: The court elaborated on the distinction between procedural irregularity and nullity, citing various legal authorities. It noted that an error in the manner of exercising jurisdiction does not affect the validity of the court's act if the jurisdiction is derived from an independent source. The court emphasized that procedural errors, such as non-compliance with Order 38, Rule 5, CPC, do not invalidate the attachment but render it voidable. The court referenced English authorities to illustrate the distinction between an irregularity and a nullity, concluding that the present case falls into the category of an irregularity rather than a nullity. This conclusion was based on the premise that Rule 5 of Order 38, CPC, prescribes the mode of exercising jurisdiction rather than being a condition precedent to jurisdiction. Conclusion: The court ultimately held that the attachment before judgment, despite procedural non-compliance, was not null and void but merely an irregularity. The court restored the order of remand made by the District Judge, Nimar, and directed the respondent to pay the appellant's costs for both appeals. The judgment underscores the importance of distinguishing between procedural irregularities and jurisdictional nullities in legal proceedings.
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