Table of Contents
- Introduction
- Legislative Framework
2.1 Overview of Order 38, Rule 5 of CPC
2.2 Objectives - Prerequisites for Attachment Before Judgment
3.1 Prima Facie Case
3.2 Defendant’s Intent to Obstruct or Delay
3.3 Safeguarding the Interests of the Plaintiff - Procedure for Attachment Before Judgment
4.1 Application for Attachment
4.2 Notice to Defendant
4.3 Security Deposit by Defendant
4.4 Order of Attachment - Types of Property that can be Attached
- Release of Attachment
- Consequences of Disobedience
- Practical Considerations 8.1 Importance of Evidence 8.2 Role of Legal Counsels
1. Introduction
Attachment Before Judgment is a provisional remedy provided under the Code of Civil Procedure, 1908 (CPC), to secure the interests of the plaintiff in situations where the defendant might dispose of their assets to frustrate the enforcement of any potential decree. This practice note offers a comprehensive understanding of the legislative framework, procedure, and practical considerations pertaining to attachment before judgment under the CPC.
2. Legislative Framework
2.1 Overview of Order 38, Rule 5 of CPC
Order 38, Rule 5 of the CPC specifically deals with Attachment Before Judgment. This provision empowers the Court to conditionally attach the property of the defendant, ensuring that the defendant does not render the decree infructuous by disposing of their assets.
2.2 Objectives
- To provide a security mechanism to ensure that the decree is not rendered ineffective.
- To act as a deterrent against the defendant’s attempt to delay or obstruct the execution of the decree.
3. Prerequisites for Attachment Before Judgment
3.1 Prima Facie Case
The plaintiff must demonstrate that they have a prima facie case that is likely to succeed.
3.2 Defendant’s Intent to Obstruct or Delay
The plaintiff must showcase that the defendant is likely to obstruct or delay the execution of the decree by disposing of their property.
3.3 Safeguarding the Interests of the Plaintiff
The Court must be satisfied that the attachment is necessary to safeguard the plaintiff’s interests.
4. Procedure for Attachment Before Judgment
4.1 Application for Attachment
The plaintiff must file an application under Order 38 Rule 5 supported by an affidavit detailing the grounds for seeking attachment.
4.2 Notice to Defendant
The Court issues a notice to the defendant to show cause why the attachment should not be ordered.
4.3 Security Deposit by Defendant
The defendant may avoid attachment by providing security sufficient to fulfill the decree.
4.4 Order of Attachment
If the Court is convinced about the necessity, it may pass an order of attachment.
5. Types of Property that can be Attached
| Type of Property | Explanation |
|---|---|
| Immovable Property | Includes land, buildings, and hereditary allowances. |
| Movable Property | Includes goods, money, bank accounts, shares, debentures, etc. |
| Agricultural Produce | Includes crops and other agricultural produce. |
6. Release of Attachment
Attachment may be released if:
- The defendant furnishes security as ordered by the Court.
- The Court is satisfied that the attachment was not necessary.
7. Consequences of Disobedience
Disobedience or violation of the order of attachment may result in penal consequences under Order 21, Rule 32 and Order 39, Rule 2A of the CPC.
8. Practical Considerations
8.1 Importance of Evidence
For a successful application, it is crucial to furnish substantial evidence to demonstrate the defendant’s intent to frustrate the decree.
8.2 Role of Legal Counsels
Legal counsel must strategically evaluate the timing and merits of the application and ensure compliance with procedural requirements.
