Note On Attachment Before Judgment

Detailed Version-

Introduction

Attachment before judgment, governed by Order 38 Rule 5 to Rule 13 of the Code of Civil Procedure (CPC), is a preventive legal remedy allowing the court to attach a defendant’s property before the final judgment. Its purpose is to prevent a defendant from disposing of or removing the property to evade execution of a decree in favor of the plaintiff. Courts use this power cautiously as it affects the defendant’s property rights before the dispute is finally adjudicated.

This remedy is invoked in exceptional cases where the court believes that the defendant is likely to frustrate the possible decree by transferring, selling, or removing the property beyond the court’s jurisdiction.

Objective & Scope of Order 38 Rule 5

The primary objective of Order 38 Rule 5 is to ensure that the defendant does not defeat the execution of a potential decree by obstructing or delaying the process. The rule allows the court to ask the defendant to either furnish security or face attachment of the property before judgment.

To invoke this provision, the plaintiff must demonstrate two critical elements:

1. Prima Facie Claim: The plaintiff must show that their claim is substantial and not frivolous.
2. Intent to Obstruct Execution: The plaintiff must satisfy the court that the defendant is likely to obstruct or delay the execution of a decree by disposing of or transferring the property.

Conditions & Procedure

The court, upon being satisfied with the plaintiff’s application, may order the defendant to provide security for the value of the suit property or attach the property conditionally. The defendant is given a chance to show cause why such an attachment should not be confirmed.

The procedure for attachment before judgment is similar to the process followed during execution of a decree. The property attached can be either movable or immovable.

Relevant Case Laws

• Raman Tech. & Process Engg. Co. v. Solanki Traders (2007): The Supreme Court emphasized that attachment before judgment is a preventive measure to ensure the defendant does not obstruct the decree by disposing of their property.
• Vandana Verma v. Roop Singh & Ors (2022):The Delhi High Court ruled that a plaintiff’s application under Order 38 Rule 5 cannot be admitted merely upon request. The plaintiff must prove the need for such relief through substantial evidence.
• Premraj Mundra v. Md. Maneck Gazi (1951). In this case, the Calcutta High Court laid down important guidelines regarding the attachment of property before judgment. It emphasized that the affidavit supporting such an application must be clear, specific, and verified. The court should exercise caution before issuing an attachment order and ensure that all legal prerequisites are fulfilled.
• Padam Sen v. State of U.P. (1961): The Supreme Court explained that the purpose of attachment is to prevent a decree from becoming infructuous if the defendant tries to dispose of their assets before judgment.

Mode of Attachment (Order 38 Rule 7)

The mode of attachment must follow the procedures outlined in the CPC for execution of decrees. The court can attach property either within its jurisdiction or, under Section 136, transfer the attachment order to a district court where the property is located if outside its local limits.

In Mohit Bhargava v. Bharat Bhushan Bhargava & Ors. (2007), the Supreme Court clarified that attachment orders can be transferred to the district court within whose jurisdiction the property is situated.

Failure to Furnish Security (Order 38 Rule 6)

If the defendant fails to furnish the required security without reasonable grounds, the court may order the attachment of property. However, if the defendant subsequently provides security, the court is obligated to revoke the attachment.

In M/S. Muthoot Leasing and Finance v. N.P. Asiya (2011), the Kerala High Court reiterated that attachment orders must be lifted if the defendant provides security or justifies their failure to do so.

Adjudication of Claims to Attached Property (Order 38 Rule 8)

Third-party claims to attached property are adjudicated in a manner similar to claims in execution proceedings. This ensures that the rights of third parties are protected, as outlined in Order 21 Rule 46.

In M/S Value Advisory Services v. M/S Zte Corporation & Ors (2009), the Delhi High Court held that third parties may challenge the attachment if they have legal title or interest in the property.

Removal of Attachment (Order 38 Rule 9)

Attachment can be lifted if the defendant furnishes security or if the suit is dismissed. The Supreme Court in Vareed Jacob v. Sosamma Geevarghese & Ors (2009) held that dismissal of a suit does not automatically render an attachment void, but security provided can result in the lifting of attachment.

Rights of Strangers and Re-Attachment (Order 38 Rules 10 & 11)

An attachment before judgment does not affect the rights of strangers (third parties) and does not bar them from applying for the sale of property in execution of a decree. Additionally, property attached before judgment does not need to be re-attached when executing the decree, as established in Usha v. S.K. Sikkaiyan (2022).

Exceptions to Attachment Before Judgment

1. Agricultural Produce: Under Order 38 Rule 12, agricultural produce cannot be attached before judgment.
2. Immovable Property in Small Cause Courts: Small cause courts cannot attach immovable property under Order 38 Rule 13.

Conclusion

Attachment before judgment is an extraordinary and discretionary power granted to the court under Order 38 Rule 5 CPC. It is a protective remedy meant to ensure the plaintiff’s interests are not defeated by the defendant’s actions. However, this power must be exercised carefully, as it interferes with the defendant’s property rights before final adjudication. Courts ensure a balance between the plaintiff’s need for protection and the defendant’s right to due process, making this remedy an essential yet cautious tool in civil litigation.

Frequently Asked Questions (FAQs)

1. What is the procedure for attachment before judgment?
   The plaintiff files an application to prove that the defendant intends to delay or obstruct the execution of a decree by disposing of or transferring property outside the jurisdiction.

2. What properties can be attached?
   Movable and immovable properties that can be sold or disposed of, excluding those listed in Section 60 (e.g., essential household items, agricultural implements, provident fund deposits).

3. What is the role of conditional attachment?
   Conditional attachment may be ordered when the court deems it necessary to prevent the defendant from removing or transferring property pending a show-cause notice.