Attachment before Judgment

Order 38 Rules 5-13

Order of attachment before judgment

• Purpose- To Prevent any attempt on part of defendant to

defeat the realization of a decree that may be passed in favor
of plaintiff.
• Such order assures the plaintiff that his decree if made would
be satisfied.
Grounds
• At any stage of 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.
Procedure
• If satisfied that any of the prescribed grounds exist then-
• The court would pass an order against the defendant- to furnish within a time
fixed by the court security or deposit such amount of sum in the court as may be
sufficient to satisfy the claim of the plaintiff.
• Or to show cause why he should not furnish security.
• Where the defendant fails to show cause or fails to deposit the security- then the
court will order that – the property specified or any portion of it as may be
sufficient to satisfy the claims of the plaintiff be attached.
• The property to be attached has to be specified by the plaintiff or it may be the
subject matter of the suit.
• Order of Attachment is a drastic and an extra ordinary order.
• It practically takes away the power of alienation and such a
restriction on exercise of the undoubted rights of ownership ought
not to be imposed upon an individual except upon clear and
convincing proof that the order is needed for the protection of the
plaintiff.
• Option to be exercised sparingly and in exceptional cases and not
mechanically.
• Case law for guidelines on granting attachment before judgment-
Premraj Mundra v. Mohd. Maneck Gazi 1951 Calcutta High Court.
• Mode of making attachment: Rule 7- same mode as in execution
• Adjudication of claims- Adjudication of claims of third parties- Rule 8
• Removal of attachment- Rule 9 – if security furnished or suit dismissed
• Pre-existing rights of third parties over attached party- Rule10- not affected by attachment
• Reattachment in execution- Rules 11 and 11A
1. Not required during execution when an order of attachment was passed before judgment
2. If suit dismissed for default then attachment before judgment would not revive merely
because the order of dismissal was set aside and the suit was restored
Remedies against order of attachment before
judgment
• Appeal against order of attachment before judgment passed under
Order 38 Rule6- Order 43 Rule 1(q)
• Revision against order granting or refusing attachment before
judgment- Section 115 to the High Court