16. ATTACHMENT BEFORE JUDGEMENT
An attachment before Judgement may be ordered by court under Rule 5 – 13 of Order 38.
1. Object :
The Primary object of attachment before judgement is to prevent any attachment on part of defendant to defeat the realization of Decree that may be passed against him. The another object behind it is to give assurance to plaintiff that his decree if made would be satisfied. It is a sort of guarantee.
2. Grounds (Rule 5) :
Where at any stage of suit, if court is satisfied that :
A) The defendant with intend to obstruct or delay the execution of any Decree.B) Is about to dispose of whole or any part of his property, or
C) Is about to remove whole or any part of his property from the local limits of jurisdiction of court.
Then the Court may direct the defendant within fixed time, either to furnish security or to appear to show cause why he should not furnish securities. Where defendant fails to show cause why he should not furnish security or fails to furnish security within fixed time then the court may ordered for the attachment of the property.
3. Conditions:
The remedy of an attachment before Judgement is an extra ordinary remedy. Before an order of attachment can be made court must be satisfied about the following 2 conditions:a. That the defendant is about to dispose of whole or any part of his property.
b. That the disposal is with intention of obstructing or delaying the execution of any decree passed against him.
4. Mode of Attachment (Rule 7) :
Rule 7 provides that, attachment shall be made in a manner provided for attachment of property in execution of Decree.5. Exemption from Attachment ( Rule 12) :
The court cannot order attachment or production of any agricultural produce in possession of an agriculturist.6. Right of Third Party ( Rule 10) :
An attachment before Judgement does not affect right of person, existing prior to attachment, if they are not parties to suit.7. Adjudication of Claims ( Rule 8) :
Rule 8 provides that, any claims preferred to the property, attachment before judgement, shall be adjusted upon in manner provided for adjudication of claims to property attached in execution of Decree for payment of money.8. Reattachment in execution (Rule 11) :
Where the property is under attachment & Decree is subsequent passed in favour of plaintiff, it is not necessary to apply for fresh attachment of property in execution.9. Withdrawal of Attachment ( Rule 9) :
An Order of attachment will be withdraw if defendant furnishes security or the suit is dismissed.10. Attachment on insufficient ground ( Sec.95) :
Where in any suit is which, order of attachment of property of defendant has been obtained on insufficient ground by plaintiff or where the suit of the plaintiff fails & it appears to court there was no reasonable ground for instituting it, on application being made by defendant, the court may ordered the plaintiff to pay compensation not exceeding Rs.50,000/- to defendant for the expenses or injury to reputation caused to him.
