Attachment before judgment is a procedural irregularity, not a nullity, when the affected party acquiesces and restraint is served.

Attachment before judgment under Order 38 Rule 5 of the Code of Civil Procedure is described as a procedural mode for exercising jurisdiction under Section 94, not as a separate source of power. Omission to issue the Rule 5 notice does not by itself nullify the attachment, because the defect concerns the manner of exercise of jurisdiction rather than its existence. Where the prohibitory order substantially achieves the object of preventing alienation and the affected party acquiesces without challenge, the attachment is treated as an irregularity and not a nullity. The order therefore cannot be ignored as void ab initio.

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Issues: Whether an attachment before judgment made without strict compliance with Order 38, Rule 5 of the Code of Civil Procedure is a nullity or merely an irregularity capable of being waived by the party affected.

Analysis: The jurisdiction to order attachment before judgment was traced to Section 94 of the Code of Civil Procedure, while Rules 5 and 6 of Order 38 were treated as prescribing the mode of exercise of that jurisdiction. The omission to issue the notice contemplated by Rule 5 was held not to affect the existence of jurisdiction, but only the procedure by which it was exercised. The object of attachment is to prevent alienation, and that object was substantially achieved by the prohibitory order served on the garnishee. Since the person prejudicially affected did not challenge the order and instead acquiesced in it, the defect was held to be procedural and not a usurpation of power.

Conclusion: The attachment was not void ab initio and was only an irregularity. The objection could have been taken only by the party affected in the manner provided by law, and the order could not be ignored as a nullity.

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