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Attachment before judgment

Attachment before judgment

Order 38 Rules 5 to 13 of the Code provide for attachment before judgment.

Object: Supreme Court in Sardar Govindrao v. Devi Sahai, (1982) 1 SCC 237 laid down that the primary object of attachment before judgment is to give assurance to the plaintiff that the decree if made would be satisfied. It is also made to prevent an attempt on the part of the defendant to defeat the realization to decree that may be passed against him. Any court except the court of small causes can order such attachment [Rule 13]. However, any agricultural produce in possession of an agriculturist cannot be ordered to be attached before judgment. [Rule 12]

Grounds for attachment before judgment [Rule 5]: The court may order attachment before judgment if it is satisfied that:

(a) The defendant is about to dispose of the whole or any part of his property, or remove the same from the local limits of the jurisdiction of the court, and

(b) He does so with the intent to obstruct or delay the execution of any decree passed against him.

(c) The interest of justice so requires [Section 94].

The court may also make an order for conditional attachment of the property so specified. [Rule 5 (3)]

Procedure for attachment: Rule 5(1) provides that where the grounds mentioned as above exist, the court may direct the defendant:

(i) To furnish security, within a time fixed by the court, of such sum as may be specified in the order of attachment, or

(ii) To produce and place at the disposal of the court when required, the said property or value of the same or such portion thereof as may be sufficient to satisfy the decree, or

(iii) Appear to show cause why he should not furnish security.

Rule 6 provides that if the defendant fails to furnish security or to show cause, the court may make the order that the property specified or such portion thereof as may be sufficient to satisfy the decree which may be passed in the suit, be attached. Rule 5(4) provides that if attachment is made without complying with Rule 5(1), it will be void.

Mode of attachment and other procedure: Mode of attachment [Rule 7] and adjudication of claims in reference to attached property [Rule 8] shall be made in the same manner as is provided for attachment in execution of a decree. Rule 11A further provides that provisions of Order 21 will also apply to attachment before judgment.

Withdrawal of attachment [Rule 6 (2) r/w Rule 9]: According to Rule 6(2) and Rule 9 of Order 38, attachment before judgment may be withdrawn by the court in following cases:

(a) Where the defendant show causes as to why he should not furnish security

(b) Where the defendant furnishes the security required for satisfaction of decree that may be passed against him and for costs of attachment.

(c) When the suit is dismissed.

Re-attachment in execution [Rule 11]: Rule 11 provides that where property is under attachment and decree is passed in favour of the plaintiff, it is not necessary to apply for the attachment of property in execution and provisions of Order 21 will apply in such case.

Effect of attachment under Order 38: An attachment made before judgment does not confer any title on the plaintiff nor does it affect the rights of persons existing prior to attachment if they are not parties to the suit. [Rule 10]

Penalty in case of attachment on insufficient grounds [Section 95]: Section 95 of the Code empowers the court to impose penalty up to Rs. 50,000 upon the plaintiff if he applies for attachment on insufficient grounds causing injury to the defendant.

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