An application for attachment before judgment[CD1]
HIGHLIGHTS
The provision is
under Order 38 of the Code of Civil Procedure. The relevant provision reads as
follows :
5. Where defendant may be called upon to furnish
security for production of property
(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 jurisdiction of the Court, the Court may direct the
defendant, within a time to be fixed by it, either to furnish security, in such
sum as may be specified in the order, to produce and place at the disposal of the
Court, when required, the said property or the value of the same, or such portion thereof as
may be sufficient to satisfy the decree, or to appear and show cause why he should not
furnish security.
(2) The plaintiff shall, unless the Court otherwise
directs, specify the property required to be attached and estimated value
thereof.
(3) The Court may also in the order direct the conditional
attachment of the whole or any portion of the property so specified.
(4) If an order of attachment is made without
complying with the provisions of sub-rule of this rule, such attachment
shall be void.
6. Attachment where cause now shown or security not
furnished -
(1) Where the
defendant fails to show cause whey he should not furnish security, or fails to furnish
the security required, within the time fixed by the Court, the Court may order that the
property specified, or such portion thereof as appears sufficient to satisfy any decree which
may be passed in the suit, be attached.
(2) Where the
defendant shows such cause or furnishes the required security, and the
property specified or any portion of it has been attached, the Court shall order the
attachment to be withdrawn, or make such other order as it thinks fit.
7. Mode of making
attachment - Save as otherwise expressly provided, the attachment shall
be made in the manner provided for the attachment of property in
execution of a decree.
8. Adjudication
of claim to property attached before judgment - Where any claim is
preferred to property attached before judgment, such claim shall be adjudicated
upon in the manner hereinbefore provided for the adjudication of claims to property
attached in execution of a decree for the payment of money.
9. Removal of attachment when security furnished or suit
dismissed - 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.
10. Attachment before judgment not to affect
rights of strangers, nor bar decree-holder from applying for sale - 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.
11.Property attached before judgment not to
be re-attached in execution of decree - Where property is under attachment by
virtue of the provisions of this Order and a decree is subsequently passed in
favour of the plaintiff, it shall not be necessary upon an application for execution
of such decree to apply for a
re-attachment of the property.
11-A. Provisions
applicable to attachment- (1) The provisions of this Code applicable to an
attachment made in execution of a decree shall, so far as may be, apply to
an attachment made before judgment which continues after the judgment by virtue of
the provisions of rule 11. (2) An attachment made before judgment in a suit which
is dismissed for default
shall not become revived merely by reason of the fact that the order for the dismissal of the suit for default
has been set aside and the suit has
been restored.
12. Agricultural produce not attachable before judgment - 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.
13. Small Cause Court not to attach immovable
property - Nothing in this Order
shall be deemed to empower any Court of Small Causes to make an order for the attachment of immovable property.
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