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Attachment before judgement

Shashank Shekhar1

An attachment before judgment is to enable the plaintiff to realize the amount of the decree,
supposing a decree that eventually would be made from the defendants property. This has
been provided in the Order 38 rule 5 of The Civil Procedure Code,1908. The scope and object
of Order 38 rule 5 of CPC and the rules followed thereon are merely to protect a plaintiff
against loss arising from the defendant making away with his property pending suit. An
attachment before judgment is in the nature of an interlocutory order and such interlocutory
orders to have been passed in exercise of the Courts ancillary powers as discussed in the case
of Shivaraya and Others v. Sharnappa and Others2 .

Order 38, Rule 5 of Cpc

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) The plaintiff shall, unless the court otherwise directs, specify the property required to be
attached and the estimated value thereof.

(3) The Court may also in the order direct the conditional attachment of the whole or any
portion of the property so specified.

1
Semester IV A, Roll No. 409
2
AIR (1968) Mysore 283
(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.

Where, defendant may be called upon to furnish security for production of the property.

Scope of rule

The Scheme of Order 38 and the use of the words to obstruct or delay the execution of any
decree that may be passed against him in Rule 5 make it clear that before exercising the
power under the said Rule, the court should be satisfied that there is a reasonable chance of a
decree being passed in the suit against the defendant. A defendant is not debarred from
dealing with his property merely because a suit is filed or about to be filed against him.
Shifting of business from one premises to another premises or removal of machinery to
another premises by itself is not a ground for granting attachment before judgement. A
plaintiff should show, prima facie, that his claim is bona fide and valid and also satisfy the
Court that the defendant is about to remove or dispose of the whole or part of his property,
with the intention of obstructing or delaying the execution of any decree that may be passed
against him. If the averments in the plaint and the documents produced in support of it, do not
satisfy the court about the existence of a prima facie case, the court will not go to the next
stage of examining whether the interest of the plaintiff should be protected by exercising
power. The Court should be fully satisfied before it proceeds under Order 38 Rule 5, that the
defendant is really disposing of his properties with the intent to obstruct or delay the
execution of any decree that may be passed against him3. The honble Apex Court also held
in the case of Raman Tech. & Process Engg. Co. & Anr v. Solanki Traders4 that the power
under Order 38 Rule 5 of CPC is drastic and extraordinary power so such power should not
be exercised mechanically or merely for the asking.

Application of The Order 38 Rule 5

In the case of Gamble v. Bholgir5 it was observed that the jurisdiction to attach before
judgment should be exercised with great discretion, and no court should grant such an
attachment on light grounds or unless it is perfectly satisfied with trustworthy evidence that
the defendant is about to dispose of his property or to remove it from the jurisdiction of the

3
Jai Prakash Narain Singh v. Basanta Kumari Debi, 15 Ind Cas 604
4
2008 (2) SCC 302
5
1866 (2) BHCR 146, 161
Court. The most favourable thing about attachment is that an application can be made at any
stage of the suit till it is pending before the court6.

The very notion of this application is to find out whether there was an intention to obstruct or
delay the execution of any decree which might be passed7. But an application cant be filed if
the defendant has actually parted away from his properties8. The property does not confine to
the ambit of property to the movable but also applies to the immovable as well 9 and also
covers the profits that is ought to be made by the said property10.

The section did not and did apply where the property sought to be attached was beyond the
jurisdiction of the Court in which the suit was pending. A Court which cannot attach
primarily in execution of its decree cannot attach in anticipation of it. It was therefore held,
even under the Code of 1859, that a Court of Small Causes could not attach immoveable
property under this section. It was held that the Court had jurisdiction where the property was
a chose in action due from the Collector who, like the judgment-debtor, resided within the
jurisdiction of the attaching court as discussed in the case of Ravji Moreshwar v. Narayan
Ballal11.

Effect of the attachment

Attachment before judgment is levied where the court on an application of the plaintiff is
satisfied that the 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 his property from the local limits of the
jurisdiction of the Court.

The sole object behind the order levying attachment before judgment is to give an assurance
to the plaintiff that his decree if made would be satisfied. It is a sort of a guarantee against
decree becoming in fructuous for want of property available from which the plaintiff can
satisfy the decree. The provisions in section 64 of the Code of Civil Procedure provides that
where an attachment has been made, any private transfer or delivery of the property attached
6
Sri Rammanik v. TinCowri Rai, B.L.R 68 FB (1869)
7
Ram Narain v. Levy, 2 Hyde, 183 (1864)
8
Soorjee Kumar v. Issur Chunder , (1865) Bourke 242
9
Bishambar v. Sukhdesi, 16 A 186 (1894)
10
Ram Coomar v. Gobindnath, 12 W.R. 391 (1869)
11
(1901) 3 Bom L.R. 462
or of any interest therein and any payment to the judgment debtor of any debt, dividend or
other monies contrary to. such attachment, shall be void as against all claims enforceable
under the attachment.

The attachment which would come to an end when the suit is being dismissed and wouldnt
get revived if a second appeal is filed which ultimately succeeds. A dismissal of the suit may
terminate the attachment and the same would not be revived even if the suit is restored, this
has become a clear mandate after the addition of a new provision in sub rule (2) of rule 11 A
of order XXXIII, C.P.C. which provides that attachment before judgment in a suit which is
being dismissed for default shall not be revived merely because by reason of the fact that the
order for the dismissal of the suit for default has been set aside and the suit has been
restored. This has been the conclusion has been pronounced in various judgements.12

In case the defendant does not furnish security as directed by the court, the court may attach
the property. The court orders conditional attachment, even an "ex parte" directing the
defendant to furnish security within a couple of days ordering that the properties shall stand
attached if the security is not furnished within the given time.

Conclusion

There has been many pro-founding that discuses about the conditions for attachment before
judgement or guiding principles but has been thoroughly discussed over numerous
judgement. It would be prejudiced if a court issues an order of attachment before judgement
or for security merely because it thinks that no harm would be done thereby or that the debts.
The affidavits in support of the contentions must not be vague and properly verified. Rather
than mere allegations that the debt was selling off and his properties are not sufficient;
concrete particulars must be stated. Transactions before the suit should not be taken into
consideration but the object of the attachment should be to stop any future alienation or
transfer. There must be additional circumstances to show that the transfer is with the intention
to delay or defeat the plaintiffs claim. The court must look to the conduct of the parties
immediately before the suit and examine the surrounding circumstances and draw an
inference as to whether the defendant is about to dispose of the property and with what
intention.

12
Rango Ramachandra Kulkarni v. Gurlingappa Chinnappa Muthal, AIR (1941) 198; Yesvant Shatikar
Dunakhe v. Pyaraji Nurji Tambol, AIR (1943) Bom 145; Kochuponchi Varughese v. Ouseph Lonan, AIR
(1952) TC 467
When the defendant starts disposing of his properties one by one, immediately upon getting a
notice of the plaintiffs claim, &/or where he had transferred the major portion of his
properties shortly prior to the institution of the suit & was in an embarrassed financial
condition, these were grounds from which an inference could be legitimately drawn that the
object of the defendant was to delay and defeat the plaintiffs claim.

The purpose of attachment before judgment is to safeguard the interest of the plaintiff against
unscrupulous defendants.