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Property Attachment

Order 38 outlines the rules for attachment before judgment under the Code of Civil Procedure, 1908. It allows courts to attach a defendant's property to prevent its disposal or removal if there is a risk of obstructing a future decree. The order includes provisions for security, withdrawal of attachment, and exemptions, while also clarifying the rights of third parties and the applicability of related rules.

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Jagriti Saikia
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25 views2 pages

Property Attachment

Order 38 outlines the rules for attachment before judgment under the Code of Civil Procedure, 1908. It allows courts to attach a defendant's property to prevent its disposal or removal if there is a risk of obstructing a future decree. The order includes provisions for security, withdrawal of attachment, and exemptions, while also clarifying the rights of third parties and the applicability of related rules.

Uploaded by

Jagriti Saikia
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Download as PDF, TXT or read online on Scribd
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Order 38 – Attachment Before Judgment

Rules 5 to 13 – Code of Civil Procedure, 1908

Rule 5 – Attachment Before Judgment


(1) At any stage of the suit, the court may direct attachment of property if satisfied by affidavit or
otherwise that the defendant:
(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 outside the court’s jurisdiction,
And such actions are with the intent to obstruct or delay execution of any decree that may be
passed against him.
Court may direct the defendant to:
(i) Furnish security, or
(ii) Produce property or its value, or
(iii) Appear and show cause why he should not furnish security.
(2) Plaintiff shall, unless otherwise directed by the court, specify the property and its estimated
value.
(3) Court may also order conditional attachment of such property.
(4) Any attachment made without complying with sub-rule (1) shall be void.

Rule 6 – Attachment When Cause Not Shown or Security Not Furnished


(1) If the defendant:
(i) Fails to show cause, or
(ii) Fails to furnish the required security within the time fixed by the court,
The court may order attachment of the specified property or a portion sufficient to satisfy any
decree.
(2) This order is appealable under Order 43 Rule 1(q).

Rule 7 – Mode of Making Attachment


Attachment shall be made in the same manner as provided for the attachment of property in
execution of a decree under Order 21.

Rule 9 – Withdrawal of Attachment


Attachment before judgment shall be withdrawn if:
(i) The defendant furnishes the required security, or
(ii) The suit is dismissed.

Rule 10 – Rights of Third Party


Attachment before judgment does not affect:
- Rights of third parties existing before the attachment.
- Rights of decree-holders who obtained decrees prior to the attachment.

Rule 11 – Reattachment in Execution


If property is under attachment before judgment and a decree is passed in favour of the plaintiff,
It is not necessary to apply for fresh attachment in execution.

Rule 11-A – Applicability of Order 21


Provisions of Order 21 relating to attachment in execution also apply to attachment before
judgment, unless inconsistent.

Rule 12 – Exemption from Attachment


Court shall not order attachment of agricultural produce in the possession of an agriculturist.

Rule 13 – Restriction on Small Cause Courts


A Court of Small Causes cannot order attachment of immovable property before judgment.

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