Attachment before Judgment

Note the exclusion at the start. Suits of the nature referred to in section 16(a) to (d), that is suits for the recovery, partition, foreclosure, sale or redemption of, or the determination of rights in, immovable property, are outside Rule 1. The reason is obvious once seen: the subject matter is land, which cannot be spirited away.

Rule 2 provides that where the defendant fails to show cause, the Court shall order him to furnish security for his appearance. Rule 4 provides for his detention in civil prison where he fails to furnish that security, but not exceeding six months, or six weeks where the suit is for a sum not exceeding fifty rupees, and he shall be released on the suit being disposed of or on his furnishing the security.

Attachment before judgment: Rules 5 to 13

Rule 5(1): where, at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that the defendant, with intent 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 fixed, either to furnish security, in such sum as may be specified, to produce and place at the disposal of the Court, when required, the said property or the value of it or such portion as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security.

Rule 5(2): the plaintiff shall, unless the Court otherwise directs, specify the property required to be attached and the estimated value of it.

Rule 5(3): the Court may also in the order direct the conditional attachment of the whole or any portion of the property so specified.

Rule 5(4), and this is the one that decides appeals: an attachment made without complying with the provisions of sub-rule (1) of this rule shall be void.

Rule 6(1): where the defendant fails to show cause why he should not furnish security, or fails to furnish the security required, within the time fixed, the Court may order that the property specified, or such portion as appears sufficient to satisfy any decree, be attached.

Rule 6(2): where he shows cause or furnishes the required security, and the property has been attached, the Court shall order the attachment to be withdrawn, or make such other order as it thinks fit.

Rule 7: the attachment shall be made in the manner provided for the attachment of property in execution of a decree, which is Order XXI. So section 60's exemptions apply here too.

Rule 8: where any claim is preferred to property attached before judgment, it shall be adjudicated upon in the manner provided for claims to property attached in execution, which is Order XXI Rule 58.

Rule 9 is the withdrawal provision: where an order is made for attachment before judgment, the Court shall order the attachment to be withdrawn when the defendant furnishes the security required, together with security for the costs of the attachment, or when the suit is dismissed.

Rule 10, and this is the sentence to memorise: attachment before judgment shall 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.

Rule 11: where property is under attachment by virtue of these rules and a decree is subsequently passed in favour of the plaintiff, it shall not be necessary on an application for execution of that decree to apply for a re-attachment of the property.

Rule 11A applies certain provisions of Order XXI, including those as to attachment and as to claims, to attachment before judgment.

Rule 12 is the limit on what may be attached: nothing in this Order shall be deemed to authorise the plaintiff to apply for the attachment of any agricultural produce in the possession of an agriculturist, or to empower the Court to order the attachment or production of such produce.

Rule 13 provides that where an order is made for attachment before judgment, the Court shall order the attachment to be withdrawn when the defendant furnishes the security or when the suit is dismissed, in the terms already set out in Rule 9.

The two conditions, and why students lose marks on them

Rule 5 requires two things, and an answer that gives one is half an answer.

One, the intention: to obstruct or delay the execution of any decree that may be passed. Not merely that the defendant is selling property. A trader selling stock in the ordinary course of his business is not caught, however worried the plaintiff may be.

Two, the act: about to dispose of, or about to remove from the jurisdiction, the whole or part of his property.

Both must be shown, by affidavit or otherwise, and Rule 5(4) makes an attachment ordered without complying with sub-rule (1) void, which is a strong sanction and a favourite examination point.

A worked example

Jaya sues Kunal for Rs. 15,00,000. Half way through the suit she learns he has listed his only flat for sale and has told a neighbour he intends to move to Dubai.

Can she have the flat attached? She applies under Order XXXVIII Rule 5, supported by affidavit, showing both that he is about to dispose of the property and that he intends to obstruct or delay the execution of any decree that may be passed. She must specify the property and its estimated value under Rule 5(2).

What does the Court do? It may direct Kunal, within a fixed time, to furnish security to produce the property or its value, or to appear and show cause why he should not. It may also order conditional attachment under Rule 5(3).

Kunal furnishes the security. Rule 6(2) and Rule 9: the Court orders the attachment withdrawn.

He does neither. Rule 6(1): the Court may order the property attached, in the manner provided for attachment in execution, Rule 7.

Jaya obtains an attachment without any affidavit and without the Court considering his intention. Rule 5(4): the attachment is void.

Kunal's sister says the flat is hers. Rule 8: her claim is adjudicated in the manner provided for claims to property attached in execution, that is under Order XXI Rule 58.

A bank holds a mortgage on the flat created before the attachment. Rule 10: attachment before judgment does not affect the rights, existing prior to the attachment, of persons not parties to the suit, so the bank's mortgage stands. Nor does it bar another decree-holder from applying to sell the property in execution of his decree.

Jaya wins. Rule 11: she need not apply for a re-attachment; the existing attachment carries into execution.

The suit is dismissed instead. Rule 9: the attachment is withdrawn.

Change the property. Suppose Kunal is a farmer and the property is his standing crop. Rule 12: the Order does not authorise attachment of agricultural produce in the possession of an agriculturist.

Change the suit. Suppose Jaya's suit had been for possession of the flat itself. Rule 1 would not apply to arrest before judgment at all, because such a suit is of the nature referred to in section 16(a) to (d).

What it does not mean

It is not an execution. No decree exists yet, and the plaintiff gets nothing; the property is merely frozen.

Selling property is not by itself a ground. The intent to obstruct or delay execution must also be shown.

It does not defeat prior rights of strangers. Rule 10 preserves them.

It does not reach an agriculturist's produce. Rule 12.

It does not survive a dismissal. Rule 9 requires withdrawal when the suit is dismissed or security is furnished.

A defective attachment is not merely irregular. Rule 5(4) makes it void.

Quick revision

Section 94(b) enables it; Order XXXVIII Rules 5 to 13 contain it.

Rule 5: on being satisfied by affidavit or otherwise that the defendant, with intent to obstruct or delay the execution of any decree that may be passed, is about to dispose of or about to remove from the jurisdiction his property, the Court may direct him to furnish security or show cause, and may order conditional attachment. The plaintiff must specify the property and its value. An attachment made without complying with sub-rule (1) is VOID.

Rule 6: on failure to show cause or furnish security, attachment; on showing cause or furnishing security, withdrawal. Rule 7: attachment made as in execution, so section 60 exemptions apply. Rule 8: a stranger's claim adjudicated as under Order XXI Rule 58. Rule 9: withdrawn on security being furnished, or on the suit being dismissed. Rule 10: does not affect prior rights of strangers, nor bar another decree-holder from selling in execution. Rule 11: no re-attachment needed after a decree. Rule 12: no attachment of agricultural produce in the possession of an agriculturist.

Rules 1 to 4, arrest before judgment: on intent to delay, avoid process, or obstruct execution, where the defendant has absconded, is about to abscond, or has disposed of or removed property, or is about to leave India; not in suits of the nature of section 16(a) to (d); no arrest if he pays the sum specified in the warrant; detention for failure to furnish security not exceeding six months.

Test yourself

1. When may the Court order attachment before judgment? Where at any stage of a suit it is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him, is about to dispose of the whole or any part of his property, or is about to remove it wholly or in part from the local limits of the jurisdiction of the Court: Order XXXVIII Rule 5.

2. What are the two elements that must be established? The act, that the defendant is about to dispose of or remove his property; and the intention, that he does so with intent to obstruct or delay the execution of any decree that may be passed against him. Both must be shown, by affidavit or otherwise.

3. What is the effect of an attachment made without complying with Rule 5(1)? It is void: Order XXXVIII Rule 5(4).

4. Does attachment before judgment affect the rights of strangers? No. Order XXXVIII Rule 10 provides that such an attachment shall 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 that decree.

5. When must the attachment be withdrawn? Under Order XXXVIII Rule 9, when the defendant furnishes the security required together with security for the costs of the attachment, or when the suit is dismissed.

6. Must the property be attached again after a decree is obtained? No. Order XXXVIII Rule 11 provides that where property is under attachment before judgment and a decree is subsequently passed in favour of the plaintiff, it is not necessary on an application for execution to apply for a re-attachment of the property.

7. Can an agriculturist's produce be attached before judgment? No. Order XXXVIII Rule 12 provides that nothing in the Order authorises the plaintiff to apply for the attachment of any agricultural produce in the possession of an agriculturist, or empowers the Court to order its attachment or production.