Attachment before judgment, as outlined in Order XXXVIII Rule 5 of the Code of Civil Procedure, 1908 (CPC), is a legal mechanism designed to prevent a defendant from frustrating the execution of a potential decree by disposing of or removing their property beyond the court’s jurisdiction. This provision ensures that the plaintiff’s interests are safeguarded during the pendency of a suit.

OBJECTIVE AND SCOPE OF ORDER XXXVIII RULE 5 CPC

The primary objective of Order XXXVIII Rule 5 is to prevent any defendant from defeating the realization of the decree that may ultimately be passed in favor of the plaintiff. This is achieved by restraining the defendant from disposing of or removing their property with the intent to obstruct or delay the execution of any decree that may be passed against them. The Supreme Court, in Raman Tech. & Process Engg. Co. & Anr. vs. Solanki Traders, emphasized that the power under this rule is drastic and extraordinary, and should not be exercised mechanically or merely for the asking.

ESSENTIALS FOR INVOCATION OF ORDER XXXVIII RULE 5

For a court to exercise its power under Order XXXVIII Rule 5, certain conditions must be satisfied:

1. Prima Facie Case:
   The plaintiff must establish a bona fide and valid claim. Mere allegations without substantial evidence are insufficient. In Raman Tech. & Process Engg. Co. & Anr. vs. Solanki Traders, the Supreme Court held that the court should be satisfied that there is a reasonable chance of a decree being passed in the suit against the defendant.

2. Intent to Obstruct or Delay:
   There must be credible evidence indicating that the defendant intends to obstruct or delay the execution of any decree that may be passed against them by:

   • Disposing of the whole or part of their property.
   • Removing the whole or part of their property from the local limits of the court’s jurisdiction.

   The Calcutta High Court, in Premraj Mundra vs. Md. Maneck Gazi, laid down guiding principles, stating that mere allegations are not sufficient; particulars must be stated, and the evidence should not be vague.

PROCEDURE FOR ATTACHMENT BEFORE JUDGMENT

The procedure under Order XXXVIII Rule 5 involves the following steps:

1. Application by Plaintiff:
   The plaintiff must file an application supported by an affidavit detailing the grounds for attachment, demonstrating the defendant’s intent to obstruct or delay the execution of the decree.

2. Court’s Satisfaction:
   The court must be satisfied, based on the affidavit or other evidence, that the defendant is about to dispose of or remove their property with the intent to obstruct or delay the execution of any decree that may be passed against them.

3. Show Cause Notice:
   The court may issue a notice to the defendant to show cause why they should not furnish security for the plaintiff’s claim.

4. Conditional Attachment:
   If the court believes that the delay in issuing notice may defeat the purpose of the attachment, it may order a conditional attachment of the defendant’s property.

5. Furnishing Security:
   If the defendant fails to show cause or furnish the required security, the court may confirm the attachment to the extent necessary to satisfy the decree.

LEGAL PROVISIONS AND CASE LAWS

• Order XXXVIII Rule 5 CPC: Empowers the court to direct the defendant to furnish security to produce and place at the disposal of the court the property or its value, and to attach the property if the defendant fails to comply.
• Order XXXVIII Rule 6 CPC: Provides that if the defendant fails to show cause or furnish security, the court may order the attachment of the property sufficient to satisfy the decree.
• Order XXXVIII Rule 7 CPC: States that attachments under this order shall be made in the manner provided for the attachment of property in execution of a decree.
• Case Law: In Raman Tech. & Process Engg. Co. & Anr. vs. Solanki Traders, the Supreme Court emphasized that the power under Order XXXVIII Rule 5 is drastic and extraordinary, and should be used sparingly and strictly in accordance with the rule.

GUIDING PRINCIPLES

The Calcutta High Court, in Premraj Mundra vs. Md. Maneck Gazi, outlined several guiding principles for the application of Order XXXVIII Rule 5:

• An order under Order XXXVIII Rules 5 and 6 can only be issued if the conditions stated therein exist.
• The court must be satisfied that the defendant is attempting to remove or dispose of their assets with the intention of defeating the decree that may be passed.
• Mere allegations are insufficient; specific particulars and evidence are required.
• The power should not be used to convert an unsecured debt into a secured debt or to coerce the defendant to settle the suit claim.

EXCEPTIONS AND LIMITATIONS

Certain properties are exempt from attachment before judgment:

• Agricultural Produce:
  Order XXXVIII Rule 12 specifies that the plaintiff cannot apply for the attachment of any agricultural produce in the possession of an agriculturist, nor can the court order such attachment.

• Third-Party Rights:
  Attachment before judgment does not affect the rights of persons not parties to the suit, nor does it bar any person holding a decree against the defendant from applying for the sale of the property under attachment in execution of such decree.

CONCLUSION

Attachment before judgment under Order XXXVIII Rule 5 CPC is a protective measure to ensure that the plaintiff’s potential decree is not rendered ineffectual due to the defendant’s actions. However, given its drastic nature, courts exercise this power with caution, ensuring that all prerequisites are satisfied and that the defendant’s rights are not unduly prejudiced. The principles laid down in case laws, such as Raman Tech. & Process Engg. Co. & Anr. vs. Solanki Traders and Premraj Mundra vs. Md. Maneck Gazi, provide valuable guidance to ensure the judicious application of this provision.