Order XXXVIII CPC: Attachment Before Judgment - Rules 5 to 13
Rules 5 to 13 of Order XXXVIII of the Code of Civil Procedure, 1908 deal with attachment before judgment. They empower the Court, in appropriate circumstances, to require security for production of property, order attachment, adjudicate claims, withdraw attachment, protect prior third-party rights and regulate the continuation of attachment after decree.
Rule 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 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 Court's jurisdiction,
the Court may direct the defendant, within a time fixed by it, either to furnish security in a specified sum to produce and place at the disposal of the Court, when required, the property or its value, or such part as may be sufficient to satisfy the decree, or to appear and show cause why security should not be furnished.
(2) Unless the Court otherwise directs, the plaintiff shall specify the property required to be attached and its estimated value.
(3) The Court may also direct conditional attachment of the whole or any portion of the specified property.
(4) An attachment made without complying with sub-rule (1) is void.
Rule 6 - Attachment where cause not shown or security not furnished
(1) If the defendant fails to show cause why security should not be furnished, or fails to furnish the required security within the time fixed, the Court may order attachment of the specified property or such portion as appears sufficient to satisfy any decree that may be passed.
(2) If the defendant shows cause or furnishes the required security, and the property or any part has already been attached, the Court shall withdraw the attachment or make such other order as it thinks fit.
Rule 7 - Mode of making attachment
Except where otherwise expressly provided, attachment before judgment shall be made in the manner prescribed for attachment of property in execution of a decree.
Rule 8 - Adjudication of claim to property attached before judgment
Where a claim is preferred to property attached before judgment, the claim shall be adjudicated in the manner provided for adjudication of claims to property attached in execution of a decree for payment of money.
Rule 9 - Removal of attachment when security furnished or suit dismissed
Where attachment before judgment has been ordered, the Court shall withdraw it when the defendant furnishes the required security together with security for the cost of attachment, or when the suit is dismissed.
Rule 10 - Attachment before judgment not to affect rights of strangers or bar decree-holder from sale
Attachment before judgment does not affect rights existing before the attachment of persons who are not parties to the suit, and it does not prevent a person holding a decree against the defendant from applying for sale of the attached property in execution of that decree.
Rule 11 - Property attached before judgment not to be re-attached in execution
Where property is already under attachment under Order XXXVIII and a decree is subsequently passed in favour of the plaintiff, the plaintiff need not apply for re-attachment of that property when seeking execution of the decree.
Rule 11A - Provisions applicable to attachment
(1) The provisions of the Code applicable to attachment made in execution of a decree shall, so far as may be, apply to an attachment before judgment that continues after judgment by virtue of Rule 11.
(2) An attachment before judgment in a suit dismissed for default does not revive merely because the dismissal is later set aside and the suit is restored.
Rule 12 - Agricultural produce not attachable before judgment
Nothing in Order XXXVIII authorises the plaintiff to seek attachment before judgment of agricultural produce in the possession of an agriculturist, or empowers the Court to order attachment or production of such produce.
Rule 13 - Small Cause Court not to attach immovable property
Nothing in Order XXXVIII empowers a Court of Small Causes to order attachment of immovable property.
Official text
For the authoritative central text, amendment notes and complete Order XXXVIII, refer to the official India Code publication of the Code of Civil Procedure, 1908.