Attachment Before Judgment Under Order 38 Rule 5 CPC

Generally, attachment of property is a process subsequent to passing of a judgment. During execution of decree property of the defendant can be attached for satisfaction of decree. But in certain circumstances, the property of the Defendant can be attached even before passing of the judgment. The circumstances for attachment before judgment have been provided under Order 38 Rule 5 of the Code of Civil Procedure, 1908.

Under Order 38 Rule 5 , a Court can issue order for furnishing security is if the Court is satisfied from affidavit or otherwise that the Defendant with an intention of delaying or obstructing any decree, which may be passed, is about to dispose of whole of part of property or about to remove whole or part of his property from local limits of jurisdiction of the court.

The Plaintiff has to specify the property required to be attached and the estimates of value of the property.

The Court can order for conditional attachment of property also.

What are relevant judgments on Order 38 Rule 5 ?

The Supreme Court in  Govind Rao Mahdik vs Devi Sahai  (1982 SCC (1) 237)  has observed that attachment before judgment is to give assurance to the plaintiff that his decree , if  made, will be satisfied.

The Supreme Court in  Raman Tech & Process Engineering Co. Vs. Solanki Traders (2008) 2 SCC 302) has observed that attachment before judgment can be ordered only if twin conditions are met i.e. there is prima facie case in the favour of the Plaintiff and defendant is making attempt to dispose of property  or removing property from jurisdiction of the Court. The objective of Order 38 Rule 5 CPC is to prevent defendant from defeating the realization of the decree which may be passed in favour of the Plaintiff. The Court also observed that merely having a just of valid claim is not sufficient for relief under Order 38 Rule 5. It has also to be established that defendant attempting to remove or dispose of property.

 The Supreme Court also observed in Raman Tech (Supra) that power under Order 38 Rule 5 CPC is drastic and can only be used sparingly and strictly. The objective of the Order 38 Rule 5 CPC is not to convert unsecured property in secured property. This provision can not be used as leverage for coercing defendant to settle the suit claim.

The Supreme Court in  Rajendran Vs. Shankar Sundaram (2008 (2)SCC 724) has observed that The court while exercising its jurisdiction under Order XXXVIII 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.

_________________________________________