Thursday 30 November 2023

What is the basic concept and procedure for attachment before judgment as per provisions of Civil procedure Code?

 Attachment before judgment

O 38 R 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 limits of the 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 the 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 (1) of this rule, such attachment shall be void.]

6. Attachment where cause not shown or security not furnished.—(1) Where the defendant fails to show cause why 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security, and the property specified or any portion of it has been attached, the Court shall order the attachment to be withdrawn, or make such other order as it thinks fit.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.]

Detail discussion

Attachment before judgment is a drastic remedy granted by the court to prevent the defendant from disposing of or damaging the property in dispute before a judgment is passed. It is an exceptional measure and is granted only in cases where the court is satisfied that the defendant is likely to take such steps.

Basic Concept

The basic concept of attachment before judgment is to safeguard the plaintiff's interests and ensure that the decree, if passed in their favor, can be executed effectively. It is a preventive measure to protect the property in dispute from being transferred or damaged, thereby hindering the plaintiff's ability to recover the amount decreed in their favor.

Procedure for Attachment Before Judgment

The procedure for attachment before judgment is outlined in Order 38 of the Code of Civil Procedure, 1908. It involves the following steps:

  1. Application: The plaintiff must file an application for attachment before judgment with the court. The application must be accompanied by an affidavit stating the grounds for attachment and the specific property to be attached.

  2. Notice to Defendant: The court may, at its discretion, issue a notice to the defendant before granting an order of attachment. This notice provides the defendant with an opportunity to be heard and show cause why the attachment should not be granted.

  3. Order of Attachment: If the court is satisfied with the grounds for attachment, it will pass an order of attachment. The order will specify the property to be attached and the manner of attachment.

  4. Execution of Order: The order of attachment is executed by the court officer, who takes possession of the property or prohibits the defendant from using or disposing of it.

Grounds for Attachment Before Judgment

The court may grant an order of attachment before judgment if it is satisfied that:

The defendant is likely to dispose of or damage the property in dispute to defeat the plaintiff's claim.

Conditions for Attachment Before Judgment

The court may impose conditions for attachment before judgment, such as:

  1. The plaintiff must furnish security for the costs of the attachment proceedings.

  2. The plaintiff must undertake to pay damages to the defendant if the attachment is found to be wrongful.

Removal of Attachment Before Judgment

The defendant may apply to the court to have the attachment removed. The court may remove the attachment if it is satisfied that the grounds for attachment no longer exist or that the defendant has furnished security for the satisfaction of the plaintiff's decree.


Attachment before judgment is a powerful remedy that can be used to protect the plaintiff's interests in a civil suit. However, it is a drastic remedy and should be used only in exceptional circumstances. The court must carefully consider the grounds for attachment and the potential prejudice to the defendant before granting an order.

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