Attachment in simple means “the process of seizeing of property”. Attachment is basically of immovable properties. Law provides various ways for attachment of property. Law contains an important principle in it, and this is the principle of “Attachment before Judgment”.
Code of Civil Procedure, 1908 (hereinafter for the purpose of this Article is known as “CPC”) enumerates and delivers various interim orders. The basic objective of these interim orders is to safeguard interest of parties and interest of suit. Attachment before Judgment is one among those topics. It is infact, a very good unique remedy enumerated only in the CPC. It is an extraordinary power given in the hands of Courts but needs to be used in only some exceptional cases. Order 38 deals with 2 provisions. At first, Order 38, Rules 1-4 deal with Arrest of defendant whereas Order 38 Rules 5-13 deals with attachment before judgment. A creditor who is having a claim against the debtor has two options left in front of him to avail. First, being by getting a decree executed and arrest him and Second, being, by attaching his property. Vide Order 38 Rule 5, a defendant is directed to either furnish security or attach some property. Code of Civil procedure even grant the power of attachment of his property even before the judgment. This article is to deal with important judgment mentioning important jurisprudence regarding Order 38. As Law is not static, it keeps on changing. Therefore, it needs interpretation from the Judiciary also to very well understand the nuances of Attachment before Judgment. Considering this aspect, in this article, all the important rulings are mentioned.
Objective behind Attachment before Judgment:
Aim of attaching before judgment is to protect the interest of Plaintiff. It was ruled in the case titled M.K. Govindankutty Menon1 that “attachments before judgments are issued with the objective of preserving the property belonging to the defendant concerned so that in the event of a positive decree being passed in favour of the plaintiff, he will be able to proceed against that property for securing the fruits of the decree. While issuing such attachments, the Court only ensures that the defendant does not dispose of the property pending suit”.
Another case law depicting the Objective behind attachment before judgment was case titled Raman Tech. & Process Engg Co. vs. Solanki Traders2 in which it was stated that “The object underlying these provisions is to enable the plaintiff to realise the amount of decree if one is eventually passed in his favor and to prevent any attempt on the part of the defendant to defeat the execution of such decree passed against him.”
In another case titled Sardar Govindrao Mahadik vs. Devi Sahai3, the Supreme Court in para 58 held that “The sole object behind the order levying attachment before judgment is to give an assurance to the plaintiff that his decree if made would be satisfied. It is a sort of a guarantee against decree becoming infructuous for want of property available from which the plaintiff can satisfy the decree”.
Object of attachment before judgment was also dealt in the case Padam Sen vs. State of U.P.4 It was held that, “The primary object of attachment before judgment is to prevent any attempt on the part of the defendant to defeat the realisation of the decree that may be passed against him.”
Since, attachment before Judgment is not a normal remedy. It is always advisable for the court to use it sparingly and in only exceptional cases. The remedy of this nature being extraordinary imposes a duty on the court and judges as well. Before declaring the judgment, the judge need to record reasons for the judgment as well. Thus, a positive duty has also been imposed on the court to record reasons for the judgment which they are going to delivered.5
Nature of proceeding under Order 38 Rule 8:
The nature of proceeding under Order 38 Rule 8 read with Order 21 Rule 58 is civil proceeding. This was held and stated in the case of S. Noordeen v. V.S. Thiru Venkita Reddiar.6 It was held in the case that “The proceedings envisaged for adjudication under Order 38 Rule 8 read with Order 21 Rule 58, is a civil proceeding. When attachment of the properties has been made before the judgment, they become part of the civil proceedings in the suit. Thereby, they became part of decree.
Any order in the nature of Attachment before Judgment is an interlocutory order. Thus, it was also observed in the case of Chunni Kuar vs. Dwarka Prasad7 that attachment of judgment is only a temporary injunction and as the suit terminates, the order of attachment before judgment becomes functus officio.
Power of the Court under Order 38 Rule 5 of CPC should be used sparingly:
High court of Madras in the case titled W. Pappammal vs. I Chidambaram8 held that “Power under Order XXXVIII, Rule 5 of the Civil Procedure Code has to be sparingly used and only when, there is sufficient reason to believe that the defendant is about to dispose his property, Attachment or Order to furnish security shall be ordered.”
Order 38 Remedy an Extraordinary remedy, which needs to be used only with utmost care:
The remedy which CPC provides is extraordinary in nature. And therefore considering this thumb rule, it should not be used in all cases. Therefore, it is asked to the court to exercise this power only with utmost care and caution and only in exceptional cases. This was held in the case of Raman Tech. & Process Engg. Co. vs. Solanki Traders. Further, in this case only, it was also decided that “Court must ensure that the action does not become an engine of oppression”.
Twin Conditions mandatory for court to check before issuing directions under Order 38 Rule 5:
This issue was raised in the case of Beigh Construction Company Private Limited v. Varaha Infra Limited9
Court then relying on the judgment Raman Tech & Process Engineering Co. and Anr. v. Solanki Traders10 held that “twin conditions that are required to be satisfied before issuing any directions in terms of Oder 38 Rule 5 of CPC. First, that the plaintiff must establish a strong prima facie case and second, that the court is prima facie satisfied that the defendant is acting in a manner so as to defeat the realisation of the decree that may be passed”.
Effect of Attachment:
“Effect of attachment helps Plaintiff. An order of attachment before judgment is a sort of guarantee against decree becoming infructuous for want of property available for satisfaction of such decree. The plaintiff however does not get title by effecting attachment before judgment.”11 It was held in the case of Durpati Bibi v. Ram Rachpal12 that “an attachment before judgment becomes operative as an attachment in execution when the application for execution in respect of that property is made.”
Effect of Dismissal of Suit on Order of Attachment before Judgment:
The question though has emerged in many cases now that whether the order of the court regarding attachment before judgment as mentioned in Order 39 Rule 5 of the Code of Civil procedure will survive post dismissal of suit? Thus it was held that “an attachment before judgment which ceased to be in force with the dismissal of suit will revive when the decree dismissing the suit is subsequently reversed and a decree in the plaintiff favor is passed, even by the same court or by a superior court and this revival will be in force from the date on which the attachment before judgment is effected as provided for in the Civil Procedure Code”.13
Difference in scope of Attachment before Judgment mentioned in Order 38 of CPC and the attachment of Immovable property via Order 21 Rule 54 of Code of Civil Procedure:
Though the CPC contains attachment of two types. But both of them differ from one another. Attachment under Order 21 CPC is different from Attachment under Order 38 of CPC.
Way forward in this regard is that Attachment before judgment does not effect the rights of the third party.14 Though at first instance, it seems that order favor and protect the rights of only Plaintiff, though it is right to such extent but it also take into consideration the rights of the defendant as well. One of the most important case in this regard is the case of N. Pappammal v. Chidambaram15. This judgment states that “an attachment before judgment indiscriminately without notice giving an opportunity to the defendant to stave of the attachment by offer of security and without rigidly conforming to the requirement of Sub Rule (1) would be invalid. Thus, it can be inferred from this judgment that Judiciary by its various pronouncement had not only tried to protect the interest of plaintiff but Defendant also.
Another positive aspect of Attachment before judgment is that- an appeal or a writ petition can be filed. Thus, if any person is aggrieved by the order of the court, then the aggrieved person has remedy to either invoke the High Court under article 227 of the Constitution of India or file an appeal.
Thus, the order which has been passed, is passed with some objectives. The foremost main objective is to prevent defeat of justice. Thus, it is the duty of the Court to maintain this decoram and the very object for which the order has been passed. And there is no such need of the order, once the suit is being dismissed, then the order of attachment holds no value.
by- Parul Sardana (B.A. LL.B.)