Attachment before judgement-orders required.

This query is : Resolved 
 


Querist : Anonymous (Querist)
01 June 2020

Respected Experts,
A manufacturing company ( Plaintiff) has filed a Civil Suit in Hyderabad Court, for recovery of money from its customer( Defendant) on account of, material supplied to him.The defendant company is at Vadodara, Rajahstan.
Now the point is, the defendant is planning to sell his machinery to some other 3rd parties.
In this situation, whether the Plaintiff can get an Attachment Before Judgement order from the 'Court of Hyderabad against the property of the defendant, where it is located at Vadodara, which is out of court jurisdiction.
If so how? Plz. suggest.


Raj Kumar Makkad (Expert)
01 June 2020

Yes is the sole reply to your query subject to furnishing the reliable evidence to the effect that in order to defeat the proposed decree, the defendant is seriously trying to sell its property. Once such order under the provisions of Order 38 Rule 5 read with section 151 of CPC is passed, the same shall legally be got executed through the civil court at Vadodra.

It is to be kept in mind that the power under Order 38 Rule 5 CPC is drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It Should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt.

Dr J C Vashista (Expert)
02 June 2020

As per your statement the case is yet to be adjudicated, is it so ?
In your case, the court is yet to pronounce judgment and there is no interim injuction restraining the defendant to create third party interest in the machinary / property he is well within his right to dispose his property.
Whether suit has been decreed for recovery of amount ? No application is maintainable lis pendens.
Attachment order can be passed by an "Executing" (Vadodara) Court and not by an "Adjudicating/ Trial " (Hydrabad Court in the instant case/ suit).
Vadodara is located in Gujarat and not in Rajashan.

Raj Kumar Makkad (Expert)
02 June 2020

Order 38 Rule 5 CPC prescribes a provision to attach the property before the pronouncement.

Rajendra K Goyal (Expert)
02 June 2020

Court can be approached for attachment of property, court may do so if satisfied.
The defendant is also a company, you had the option to approach through NCLT

Raj Kumar Makkad (Expert)
02 June 2020

There is some difference between ‘attachment prior to decree’ and ‘attachment after decree’. Of course, if an attachment is ordered before judgment, no need to re attach the same property after decree. I will later on discuss this point of re-attachment in this article. An ‘attachment prior to decree’ is not an attachment for the enforcement of the decree, but it is a step for preventing the debtor from delaying or obstructing such enforcement when the decree subsequently passed is sought to be executed. [See Parur Central Bank Ltd. vs A.C. Chacko (1989); S.P. Vasakumar Pillai vs The Motor Accidents Claims (2008)].An attachment after decree is an attachment made for the immediate purpose of arraying the decree into execution, and if presupposes an applaication on the part of the decree holder to have his decree executed. See Sri Rammanik Vs.Tin Cowri Rai, B.L.R 63,67,68 FB (1869). It is a sort of a guarantee against decree becoming infructuous for want of property available from which the plaintiff can satisfy the decree. ( Ref: Sardar Govindrao Mahadik & Anr vs Devi Sahai & Ors, 1982 AIR 989, 1982 SCR (2) 186 ).

P. Venu (Expert)
02 June 2020

Yes, the attachment as suggested possible. But the relief would be granted only in exceptional facts and circumstances.


Querist : Anonymous (Querist)
03 June 2020

Respected Experts, Sorry for the interception.
According to Raj kumar Sir opinion, If once, the Hyderabad Court grants ABJ Order, it can be executed through Vadodara Court." But whereas, the opinion of Shri Vasishta Ji, the executing court ( Vadodara) can only be granted ABJ order, but not the Hyderabad Court. It is clear that the suit is pending in Hyderabad. I have some little bit of confusion in this two opinions. Plz. clarify Sir. Thanks

Raj Kumar Makkad (Expert)
03 June 2020

You shouldn't any confusion. Talk with your lawyer and obtain his opinion also. I have clearly mentioned the legal provision of the Act wherein attachment before the decree is provided in Civil Procedure Code which is applicable all over India.

Rajendra K Goyal (Expert)
03 June 2020

Case is pending at Hydrabad, the Hydrabad court can order of attachment irrespective of the place of situation of the property.

Since yours is a company, must be having competent lawyer to handle the case, discuss in detail with him.

Raj Kumar Makkad (Expert)
03 June 2020

The order passed by the Court at Hydrabad can definitely be got executed by the court situated at Vadodra.

Rajendra K Goyal (Expert)
04 June 2020

Orders passed by a court in one part of the country can be executed in other part of country, orders of Hydrabad court can be executed by Vadodra court.



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