Premraj Mundra

Para 5  In my opinion, therefore, although the provisions of this rule are to be
applied with caution, if they are applied too strictly, the pltf. can only obtain an
order under conditions which are theoretically possible, but which in practice
will be impossible to demonstrate to the hilt. I think that the Court should
follow the golden mean & come to a conclusion on the facts & circumstances
of each case as to whether a reasonable man should apprehend that what the
deft. was doing was with the intention of defeating the pltf's. claim. A certain
amount of inference from the facts disclosed is inescapable.

(i) Rajendran v. Shankar Sundaram, (2008) 2 SCC 724

“10. Concededly, the amount of loan was advanced by a cheque.

The said cheque was drawn in the name of the partnership firm.
Concededly again, the appellants were the partners thereof at the
relevant time, although an endeavour was made before the learned
Single Judge to show that they ceased to be so. Having regard to the
fact that they purported to have retired from the partnership firm in
the year 2001 and the transactions herein between the parties are of
the year 2000, prima facie the liability of the appellants could not
have been ignored.

11. The application for attachment before judgment was filed by

the plaintiff so as to protect his interest in the event the suit is
decreed. The court exercises, in such a situation, jurisdiction
under Order 38 Rule 5 of the Code of Civil Procedure. The Division
Bench of the High Court merely directed the appellants herein to
furnish security within the time specified thereunder. It was directed
that only on their failure to do so, an order of punishment of the
second item on the schedule to the petitioner shall also be issued.

12. The appellants, in our opinion, are not seriously prejudiced

thereby. The court while exercising its jurisdiction under Order
 38 Rule 5 of the Code of Civil Procedure is required to form a prima
facie opinion at that stage. It need not go into the correctness or
otherwise of all the contentions raised by the parties. A cheque had
been issued in the name of the firm. The appellants are partners
thereof. A pronote had been executed by a partner of the firm. Thus,
even under the Partnership Act prima facie the plaintiff could enforce
his claim not only as against the firm but also as against its partners.”

Anumati Consultancy and Services Private Limited v. Wellside Global

Private Limited, 2021 SCC OnLine Cal 413 –

 However, it can be garnered out of the facts of the present case at this
stage that, the defendant is liable to pay the plaintiff. The quantum of liability
has to be decided.

12. Till such time such quantum of liability is decided and the defendant
pays the same, and since, the contract that the parties had entered into
related to units Nos. 12W, 13W and 14W on the 12th, 13th and 14th floor of the
proposed building, it would be appropriate to grant an order of injunction
restraining the defendant from creating any third party rights over and in
respect of such units without the leave of the Court.

(ii) Mommanasaree Mandir v. Manisha Sarees, AIR 2002 AP 66

“11. Having heard the elaborate submissions made by both the

learned counsel, we are of the considered opinion that in the light of
the several facts and circumstances as can be revealed from the
material on record, we are satisfied that the impugned order is in
substantial compliance with the provisions of Order 38 Rule 5 and
Order 38 Rule 6 CPC and hence the impugned order does not suffer
from any illegality.
 12. The conduct of the parties has to be taken into consideration.
Further, several transactions between the parties also clearly reveal
that in the event of the proper security not being furnished, it will be
very difficult for the respondent-plaintiff to realize the amount from
the appellant. While considering the application for attachment
before judgment under Order 38 Rule 5 CPC, the Courts are
expected to look into the object of the provision also. When the Court
feels that the interest of the plaintiff has to be safeguarded, then
necessarily in such circumstances, it is always better to call upon the
opposite party to give the necessary safeguard by furnishing security
or any other complying with the terms of the decree which he
ultimately suffer at the time of disposal of the suit. Keeping in view
the object and the purpose of Order 38 Rule 5 CPC, we are of the
considered opinion that the impugned order passed by the Court
below is not liable to be interfered with on any count whatsoever
much less on any illegality. Before parting, even otherwise, the
aspects pointed out by the appellant are only at the best aspects
relating to the irregularity in the procedure and such curable
irregularities cannot affect the substantial rights of the parties.
Further, some facts which clinch and stare at us are the admission of
transaction of sale of sarees by the respondent and purchase by the
appellant, the admission made by the appellant that some amounts
are due and the issuance of cheques in settlement of the dues are
bouncing of the same.”
Requirements to be proved

1. Prima facie case

2. Defendant is disposing off his properties

A plaintiff should show, prima facie, that his claim is bonafide 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, before power is
exercised under Order 38 Rule 5 CPC.

WHEN ATTACHMENT BEFORE JUDGMENT CAN BE ORDERED:

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 excercising 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. This would mean that the court should be satisfied the
plaintiff has a prima facie case. 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
excercising power under order 38 rule 5 CPC. It is well-settled that merely
having a just or valid claim or a prima facie case, will not entitle the plaintiff to
an order of attachment before the Judgment, unless he also establishes that
the defendant is attempting to remove or dispose of his assets with the
intention of defeating the decree that may be passed. Equally well settled is
the position that even where the defendant is removing or disposing his assets,
an attachment before Judgment will not be issued, if the plaintiff is not able to
satisfy that he has a prima facie case
5. ... The essential requirements which must be proved to the satisfaction of
the court are: (1) the defendant is about to dispose of the whole or any part of
his property; or (2) the defendant is about to remove the whole or any part of
his property from the local limits of the jurisdiction of the court, and (3) that
the defendant is intending to do so to cause obstruction or delay in the
execution of any decree that may be passed against him. Vague and general
allegations that the defendant is about to dispose of the property or remove it
beyond the jurisdiction of the court, unsupported by particulars, would not be
sufficient compliance with the rule. It is incumbent upon the plaintiff to state
the grounds on which he entertains the belief or apprehension that the
defendant would dispose of or remove the property, or, to give the source of
his information and belief in the matter. This is really settled law on the
subject. Senaji Kapurchand v. Pannaji Devichand, ILR 46 Bom 431: (AIR 1922
Bom 276); Bedanand Rai v. Nabo Kumar Singh, AIR 1938 Pat 161; Durga Das v.
Nalim Chandra, 38 Cal W N 771: (AIR 1934 Cal 694). A verbatim copy of the
provisions of the Code in the affidavit in support of the application, or a
mechanical repetition of the language of the Code without an iota or
substratum of truth underlying the allegation, would be merely colourable and
would constitute an abuse of process of court. The court must insist upon the
strict proof of the said allegation. Any order of the court without a proper
investigation whether the allegations are well-founded or not, would
constitute a gross dereliction of duty."