Attachment before judgment is an interim order under Order XXXVIII Rule 5 of the Code of Civil Procedure 1908. Where the court is satisfied, by affidavit or otherwise, that the defendant is about to dispose of his property, or to remove it from the local limits of the court's jurisdiction, with the intent to obstruct or delay the execution of any decree that may be passed against him, the court may require him to furnish security or to show cause, and if he does not, attach the property. The purpose is to keep the property available so that a decree, once passed, can be executed against it.
When this matters
This matters most in a money suit against a defendant who is winding up his affairs: a borrower selling his flat, a partner transferring stock, a company moving its receivables out of reach. A plaintiff who waits until the decree is passed may find the assets gone and the decree empty. Attachment before judgment is the preventive step, and it is taken while the suit is still being tried. It is used alongside the main claim in a civil litigation matter and, where the claim is a money claim, in recovery and execution work.
What the application needs
- An affidavit, not a bare assertion. Order XXXVIII Rule 5 requires the court to be satisfied by affidavit or otherwise. The affidavit must set out the specific facts, what the defendant is about to dispose of, how that is known, and the intent to obstruct or delay execution.
- Particulars of the property to be attached, so the court can identify what it is being asked to attach.
- The claim and the sum involved, since the security or attachment is measured against the amount the court may decree.
- The grounds showing a cause of action against the defendant, because an order under Rule 5 cannot rest on a suit with no foundation. The general requirements for a plaint are set out on the civil litigation formats page.
The two limbs of Rule 5 are: the defendant is about to dispose of the whole or part of his property, or he is about to remove it from the local limits of the court's jurisdiction, in either case with intent to obstruct or delay execution of any decree that may be passed. The court then directs the defendant, within a time fixed, either to furnish security for the sum specified or to produce the property or its value, or to appear and show cause why he should not furnish security.
Security, notice and the order
If the defendant shows cause and the court accepts it, no attachment follows. If he does not show cause, or does not furnish the security, the court may order the property to be attached under Order XXXVIII Rule 6, and the attachment continues until further orders. The mode of attachment follows the rules for attachment in execution, and Order XXXVIII Rule 8 provides for adjudicating a claim to the attached property. Order XXXVIII Rule 10 makes clear that the attachment affects only the right, title and interest of the defendant in the property; it does not defeat the rights of strangers, or of those who acquired an interest before the attachment. Notice to the defendant, and an opportunity to show cause, are built into the rule. In an urgent case, the court may pass an ad interim order and hear the defendant shortly after.
Difference from a temporary injunction
- A temporary injunction under Order XXXIX Rules 1 and 2 restrains the defendant from doing an act, for example from alienating a specific property. The applicant shows a prima facie case, irreparable injury and the balance of convenience.
- Attachment before judgment under Order XXXVIII Rule 5 is not a restraint on conduct but a step to secure property so that a future decree can be executed. The focus is the defendant's intention to dispose of or remove property to defeat execution.
- The two can be sought together, but each has its own test. An injunction binds the defendant personally; an attachment binds the property.
- The court does not order attachment merely because the plaintiff wants security for his claim, nor as a matter of course, nor to pressure the defendant. The material must show the intent to defeat execution.
How it protects the recovery claim
A money decree against a defendant who has parted with his assets is worth little. Attachment before judgment keeps the property within reach, and where a decree follows, the attachment may be continued in execution so that the property can be sold to satisfy the decree. That is why the application should be made early, on solid material, and with the property identified. The longer a plaintiff waits, the more likely it is that the assets have already gone.
Common mistakes and the risk to the plaintiff
- Sworn statements that state a conclusion, such as "the defendant intends to run away", without the facts that support it. Courts require particulars, not suspicion.
- Applying at the last stage of the suit, when the defendant has already disposed of the property.
- Omitting to identify the property, leaving the court with nothing to attach.
- Forgetting the counter-risk. Section 95 of the Code allows the court to award compensation to the defendant where an attachment was applied for on insufficient grounds, or where the suit fails and there was no reasonable or probable ground for the attachment. The applicant should be sure of his material.
Common questions
Can property be attached before the suit is decreed?
Yes. Order XXXVIII Rule 5 operates at any stage of a suit, before judgment. It is a provisional measure. The attachment stands only if the plaintiff succeeds and the decree is executed against the property; if the suit fails, the attachment goes, and Section 95 compensation may follow if the grounds were insufficient.
What if the defendant furnishes security instead?
Then the court does not attach the property. The security, whether cash, a bank guarantee or other sufficient security, stands in place of the property to satisfy the decree. If the security later proves insufficient or is not honoured, the plaintiff can return to the court.
Is notice always given to the defendant first?
The rule contemplates that the court directs the defendant to furnish security or to appear and show cause, so the defendant ordinarily has a chance to be heard before the attachment. In an urgent case the court may grant an ad interim attachment and hear the defendant soon after. Either way, the defendant may show cause and apply for the attachment to be removed.
Does the attachment stop the defendant from selling the property?
An attachment binds the property, and a transfer after it is subject to the attachment as against the plaintiff, but Order XXXVIII Rule 10 preserves the rights of strangers and of those who acquired an interest before the attachment. A buyer dealing with attached property takes it subject to the court's hold, which is the protection the plaintiff wants. Reach us through the contact page if you need one drafted.
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