Rules Pertaining to Attachment Before Judgement and Remedy 

Question: In which suit a property can be attached before judgment? What conditions are to be fulfilled for attachment before judgment? Which court does not have the power to order attachment of property? Discuss with the relevant provision of the Code of Civil Procedure.

Answer:

In which suit property can be attached before judgment

According to rule 1 of order 38, it has been clearly mentioned that, in the suits mentioned in clause (a) to (d) of section 16, (a) suit for recovery of immoveable property, (b) suit for partition, (c) suit for foreclosure and redemption, and (d) suit for determination of any other right to immoveable property no order of arrest before judgment can be made. But, nowhere in rule 5 to 13 of order 38 of the Code, it has been mentioned that in which suits an order of attachment before judgment can be made. But, if we scrutinize rule 1 of order 38, it is found that if the defendant tries to dispose or transfer the disputed property, the court can order the arrest of the defendant.

What conditions are to be fulfilled for obtaining an order of attachment?

According to rule 5 of order 38, the following conditions are to be fulfilled for an order of attachment:

Where, at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that the defendant, with intend 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,

the Court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the Court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security. If the defendant does not furnish security, his property shall be attached. However, if he later furnished security, the order of attachment may be revoked.

Which kinds of property cannot be attached?

According to rule 12 of order 38, no agricultural produce can be attached.

Which court cannot order attachment of immoveable property?

According to rule 13 of order 38, The Court of Small Causes cannot order for attachment of immoveable property.

Remedy against the order of attachment before judgment:

The aggrieved party may appeal before the higher court against the order of attachment before judgment. The provision is laid down in order 43 of the Code of Civil Procedure.

The appeal is to be filed before the District Judge or to the High Court Division.

Object of attachment before judgment:

The object of attachment before judgment is to enable the plaintiff to recover his claim from the property of the defendant, as it may be necessary to attach and sell the property for the execution of the decree, and therefore, subject to the fulfillment of conditions, the court may order the attachment of the defendant's property before judgment.

Question: The plaintiff in a case is your client. He advises you that there should be an order to attach the property of the defendant before the judgment. Your client argues in support of his advice. You also think that you can apply for an order of attachment. Prepare a draft praying the attachment before judgment of the defendant's property.

Answer:

Legal Explanation:

Usually the court decides to attach the property of the judgment-debtor in order to implement the judgment. However, exceptions to this provision have been discussed. in Order 38 of the Civil Procedure Code. Rule 5-13 of the said order discusses when the court can issue an order of attachment before judgment, which property can be attached before the judgment. The court can usually issue an attachment order before the judgment so that future decrees are not delayed. Rule 5 of Rule 38 of the Civil Procedure Code sets out the conditions under which the court may issue an attachment of property before announcing the judgment.

The condition for attachment order are provided below:

Where, at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that the defendant, with intend 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,

the Court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the Court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security. If the defendant does not furnish security, his property shall be attached. However, if he later furnished security, the order of attachment may be revoked. Court may order partial attachment of the defendant's property.

In the given problem, the plaintiff files a money suit against the defendant. In the meanwhile, the defendant has published a notice to sell his property in the Daily Ittefaq. The plaintiff of the suit has advised you to avail an attachment before judgment. An application for attachment under order 38, rule 5 is to be filed. Which is as follows:

Drafting of the application: Application for attachment under order 38, rule 5

Question: What reasons will you show in court in support of your application in the above case?

Answer:

Showing reason in support of the application:

The reasons that I shall show in support of the attachment before judgment are:

1. There is a pending suit between the plaintiff and the defendant for the recovery of money

2. The defendant tried to transfer his only property to frustrate or delay the proceeding or to frustrate the decree.

3. If the plaintiff gets the decree, and if he cannot recover the money, he shall face irreparable loss.

4. In the given fact, the complains raised by my client fulfils the conditions of order 38, rule 5.

5. If the order to attach the property of the defendant is not given, the defendant can transfer the property which will affect the execution of decree.

6. From the above facts, it is clear that there exists malafide intention on behalf of the defendant, which has been regarded as an important element for attachment before judgment by the Madras High Court in Renox Commercial vs Inveta Technologies.

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