CPC Mains Questions
Q. What are the circumstances in which a Court can order attachment before judgment? What procedure the Court has to follow in effecting attachment before judgment ? What is the effect of attachment before judgment ? [MPCJ 2013]
Ans. Ordinarily, the property is attached only in execution of decree but order 38- rule 5 read with section 94 (b) of CPC lays down following grounds on which court either after affording opportunity of hearing to the defendant or even ex-parte may pass an order of attachment. The objective is to ensure that property remains available to satisfy the decree and the plaintiff is not deprived of the fruits of victory.
- When defendant intents to obstruct or delay the execution of any decree, or
- When defendant with fraudulent intention does any of the following acts
- He is about to dispose of the whole or any part of his property
- He is about to remove the whole or any part of his property from the local limits of the jurisdiction of the court.
With respect to aforesaid circumstances, the hon’ble Calcutta High Court has also held in Premraj Mundra vs Md. Maneck Gazi And Ors. AIR 1951 Cal 156 that it has to be additionally shown that the defendant was transferring or removing his property with specific intent. That is, with an intention to delay or defeat the plaintiff’s claim.
Procedure : Order 38 – rule 6,7 and 8 of the CPC collectively states when upon calling the defendant puts his appearance and explains or clears the doubts arising against him to the court then the matter comes to an end. But if he fails to explain the circumstances coming against him, then the court asks him to furnish the security within prescribed time. In case he fails to comply with such direction then his whole or a part of the property is attached in accordance to the procedure including adjudication of claim as provided under order XXI of the CPC.
Effects: The attachment under order 38 of CPC is has the same effect as made during execution proceeding but as per rule 11 it does not affect the rights, existing prior to the attachment, of persons not parties to the suit, nor bar any person holding a decree against the defendant from applying for the sale of the property under attachment in execution of such decree.