Incidental Proceedings – Attachment before Judgment

One of the important incidental proceedings is attachment before judgment covered by Order 38, CPC.

As the very nomenclature suggests, the properties of one side can be attached by the court, at the behest of other side, whether the properties are movable or immovable.

Like any other interlocutory applications the application consists of a petition and an affidavit. The petition contains the long cause title of the parties and the prayer. The affidavit contains the reasons for the application as well as the prayer.

In Andhra Pradesh, usually, attachments are not ordered unless the application is accompanied by affidavits from third parties and the court is convinced that the case was a fit case for ordering attachment.

There is a plethora of decisions which points out that attachment before judgment is an extreme step and should be resorted to only as a last resort.

In Y. Vijayalakshmamma vs. S. Lakshmiah : AIR 1980 A.P. 176, it was pointed out that power to order attachment of properties before judgment provided under Order 38 Rule 5 should be sparingly exercised and that the court should issue order of attachment before judgment only in those few cases where on cogent material placed they are in a position to prima facie hold that unless attachment is directed the defendant would escape the process of law and the decree obtained by the plaintiff would be ineffective.

Order 38 Rule 5 CPC contemplates that if the court is satisfied that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him is either about to dispose of his property or about to remove the property from the jurisdiction of the court, the court may direct the defendant to furnish security of such sum as specified in the order.

In case the defendant does not furnish security as directed by the court, the court may attach the property.

In general, the court orders conditional attachment, even “ex parte” directing the defendant to furnish security within a couple of days ordering that the properties shall stand attached if the security is not furnished within the given time.

The effect of attachment is that any alienation made by the owner of the property subsequent to the attachment are non-est and the court treats the property as if it still belongs to the person as on the date of attachment.

The object of attachment before judgment is to safeguard the interest of the plaintiff against unscrupulous defendants

Order 38 also provides for situations where the property attached did not belong to the party.

Suppose A files a suit against B and gets property X attached on the ground that it belongs to B and B has been alienating the same with a view to defeat A’s claim in the suit.

In fact the property X belongs to C or partly to C and partly to B. C may be stranger to B or even B’s wife or son. Nonetheless, C can ask the court to vacate the attachment (Under Order 38 Rule 8 CPC) by way of an application, known as “Claim Petition”. If C proves to the court that the property X is his in whole or in part, the Court vacates the attachment to the extent that it belongs to C.