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Synopsis

I. Nature and scope

II. Object

III. Grounds: Rule 5

IV. Principles

Bharat Tobacco Co. V. Maula Saheb (1980)

V. Mode of attachment: Rule 7

VI. Exemption from attachment: Rule 12

VII. Rights of third party: Rule 10

VIII. Adjudication of claims: Rule 8

IX. Effect of attachment

X. Removal of attachment: Rule 9

XI. Appeal

XII. Revision

XIII. Wrongful attachment

I. Nature and scope

Rules 5 to 13 of Order 38 deal with attachment before judgment, whereby, in certain circumstances, a court may order attachment of the property of the defendant to safeguard the interest of the plaintiff.

II. Object

The main object of this provision is to prevent the defendant to defeat the realisation of the decree that may be passed against him.

III. Grounds: Rule 5

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

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, with a time limit, either to furnish security of such sum as may be specified, to produce and place at the disposal of the court, when required, the said property or the value of the same as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security.

IV. Principles

The Courts are expected to take due care after considering the circumstances while granting such a relief, being a drastic one. The Courts must have reason to believe on adequate material that unless the power is exercised there is a real danger that the defendant will remove himself or his property from the jurisdiction of the court.
Attachment before judgement is an extraordinary remedy. It must be exercised sparingly and strictly in accordance with law. Courts, while granting this remedy, must take utmost care and caution so that it may not become an engine of oppression.

The court must be satisfied with the following two conditions :-

1. the defendant is about to dispose off the whole or any part of his property

2. the disposal is with the intention of obstructing or delaying the execution of any decree that may be passed against the defendant.

Bharat Tobacco Co. V. Maula Saheb (1980)

In this case, the High Court of Gujarat has rightly observed, "In order to invoke the jurisdiction of the court under order 38 rule 5 of the code, it is not sufficient to reproduce the language of that rule but the party seeking the order must establish by affidavit or otherwise facts which would satisfy the court that the opposite party is about to dispose of the whole or any part of his property with a view to obstruct or delaying the execution of the decree that may be passed in the suit.

V. Mode of attachment: Rule 7

According to rule 7 attachment shall be made in the manner provided for attachment of property in execution of a decree.

VI. Exemption from attachment: Rule 12

According to Rule 12 of Order 38, the court cannot order attachment of any agricultural produce in possession of an agriculturist.

VI. Rights of third party: Rule 10

An order of attachment before judgement does not affect the rights of persons, existing prior to the attachment if they are not parties to the suit. It does not bar any person holding a decree against the defendant from applying for the sale of the property under attachment in execution of such decree.

VII. Adjudication of claims: Rule 8

According to rule 8 any claim preferred to the property, attached before judgement, shall be adjudicated upon in the manner provided for adjudication of claims to property attached in execution of a decree, for the payment of money.

VIII. Effect of attachment

Order of attachment before judgement guarantees decree not becoming infructuous for want of property available for satisfaction of such decree. The plaintiff, however, does not get title just by effecting attachment before judgement.

IX. Removal of attachment: Rule 9

Order of attachment will be withdrawn if the defendant furnishes security, together with security for costs of the attachment or the suit is dismissed.

X. Appeal

An order passed under order 38 rule 5 is appealable .

XI. Revision

Granting or refusing attachment before judgement is a case decided within the meaning of section 115 of the code and is revisable by the High Court.

XII. Wrongful attachment

Suit for damages is maintainable for wrongful attachment of property.

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