What is Attachment Before Judgment?
Attachment before judgment refers to a legal process where the court temporarily seizes or freezes the property of the defendant before issuing a final judgment in a civil case. This prevents the defendant from disposing of assets to defeat the execution of a future decree.
Legal Provision: Order 38 Rule 5 of the Civil Procedure Code, 1908
The primary legal provision that governs this remedy is Order 38 Rule 5 of CPC. It empowers the court to pass an order of attachment when:
- The plaintiff shows a strong prima facie case,
- The court believes the defendant is about to dispose of or remove property to defeat the decree,
- And the property lies within the court’s jurisdiction.
Purpose of Attachment Before Judgment
- Prevent Fraud: Stops the defendant from deliberately disposing of assets.
- Secure Decree: Ensures the plaintiff can recover damages if the court rules in their favor.
- Protect Justice: Preserves the integrity of the judicial process.
Conditions to Be Fulfilled
For a court to grant an attachment before judgment, the following conditions must be satisfied:
- The plaintiff must establish a valid cause of action.
- There must be a genuine apprehension that the defendant will attempt to remove or alienate property.
- The court must record reasons in writing before issuing such an order.
- The attachment must relate only to specified property, not the entire estate.
Procedure Followed by the Court
- Application by Plaintiff: The plaintiff files an affidavit alleging the defendant’s intent to defraud.
- Notice to Defendant: The court generally gives the defendant an opportunity to show cause.
- Order of Attachment: If the defendant fails to respond or satisfy the court, an attachment order is passed.
- Security in Lieu: The defendant may avoid attachment by furnishing security or a bond.
Commonly Asked Questions
1. Can attachment before judgment be granted without notice?
Yes, but only in exceptional circumstances. Courts may pass ex parte orders if delay defeats the very purpose of the attachment. However, the court must record clear reasons.
2. What happens if the defendant fails to comply with the order?
If the defendant does not furnish security or explain their conduct, the court proceeds with attachment and may even issue a warrant for arrest under Rule 6 of Order 38.
3. Is attachment before judgment a final decision?
No. It is an interim and preventive measure, not a final adjudication on the merits of the case.
4. Can the defendant challenge the order?
Yes. The defendant can challenge the order by showing they have no intent to defraud, or by offering to furnish adequate security for the plaintiff’s claim.
Important Case Laws
Premraj Mundra v. Md. Maneck Gazi (1951 Calcutta HC)
This case laid down that the power of attachment before judgment must be exercised only when reasonable grounds of fraudulent intention exist.
Raman Tech & Process Engg. Co. v. Solanki Traders (2008 SC)
The Supreme Court held that mere fear or possibility of the defendant not fulfilling the decree does not justify attachment.
