“Mschelska Mills Mothers Vs Chorus Girls Inc.

AIR 1991 delhi 129”

(Project Report)

Submitted To:
Dr. Meeta Mohini
(Faculty of Civil Procedure code )

Submitted By:
VIVEK KUMAR
Semester V, Section A

ROLL NO. 1775

Session : - 2017-2022

SUBMITTED ON: SEPTEMBER, 2019

CHANAKYA NATIONAL LAW UNIVERSITY

NYAYA NAGAR MITHAPUR,PATNA-800001

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 DECLARATION

I hereby declare that the work reported in the B.A., LL.B. (Hons.) Project
Report entitled “ Mschelska Mills Mothers Vs Chorus Girls Inc.AIR 1991
delhi 129” submitted at Chanakya National Law University, Patna is an
authentic record of my work carried out under the supervision of Dr. Meeta
Mohini I have not submitted this work elsewhere for any other degree or
diploma. I am fully responsible for the contents of my Project Report .

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 ACKNOWLEDGEMENT

I take this opportunity to express my profound gratitude and deep regards to my guide
Dr. Meeta Mohini for her exemplary guidance, monitoring and constant encouragement
throughout the course of this research. The blessing, help and guidance given by her time to
time shall carry me a long way in the journey of life on which I am about to embark.

I also take this opportunity to express a deep sense of gratitude to Dr. Meeta Mohini for
providing me this research topic and for her cordial support, valuable information and
guidance, which helped me in completing this task through various stages.

Lastly, I thank almighty, my parents, brother and friends for their constant encouragement
without which this assignment would not be possible.

Thank You!
Vivek Kumar
Roll no:- 1775

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 TABLE OF CONTENTS

Table of Cases ............................................................................................................................5

Table of Statutes ........................................................................................................................5

Table of Abbreviations ..............................................................................................................6

1.Introduction .............................................................................................................................8

2. A Brief case Study : Mschelska Mills .Mothers V. Chorus Girl Inc). AIR Delhi................12

3.Arrest before Judgement .......................................................................................................14

4.Attachment before Judgment ................................................................................................19

5.Conclusion ............................................................................................................................24

Bibliography ............................................................................................................................25

Index of Authorities .................................................................................................................25

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Table of Cases

1. Subhani v. Sadho Ram, 37 P.R. 1873.

2. Chena Pemaji v. Chelabhi, I.L.R. 7 Bom 301.
3. Damodar v. Malhari, I.L.R. 7 Bom 106.
4. Panna Lal v. Kanhaiya Lal, I.L.R. 16 Cal 85.
5. Arjun Singh v. Gaman, 75 P.R. 1905.
6. Ponnuswami v. Narayanaswami, 14 M.L.T. 304.
7. Alagappa Chetti v. Sarathambal, I.L.R. 25 Mad. 724.
8. Kishan Chand v. Sassoon, 83 P.W.R. 1910
9. Woodroffe and Ameer Ali, p. 767.
10. MVLA Vishwanathan v. Abdul Majid, AIR 1925 Rang 305.
11. Jagannathan v. Prabhakar Rao, (1966) 2 WR 306.
12. Narasinha v. Rangachari, Air 1926 Mad 689.
13. Kishore v. Netherlands Trading Society, AIR 1930 Cal 555.
14. Satyanarain Prasad v. Mahabir Prasad, AIR 1937 Pat 476.
15. Abdul v. Mistri, AIR 1922 Bom 340.
16. Channappa v. Yellappa, AIR 1931 Bom 444.
17. Sankaranarayana v. Peranisiram, AIR 1942 Mad 101.
18. Makanji v. Bhukandas, AIR 1924 Bom 428.
19. Kali Ram v. Umrao Singh, AIR 1934 Lah 92.
20. Nageshar v. Gulzari Lal Narain Dasa, AIR 1933 All 382.
21. Raghubir Singh v. Maharul Huque, AIR 1942 Pat 506.
22. Raj Chander v. Shama Soondari, I.L.R. 4 Cal. 583.

Table of Statutes

Indian Penal Code, 1860

Code of Civil Procedure, 1908
The Constitution of India 1949

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Table of Abbreviations

S.
no.

1.
S. Section

2.
A.I.R All India Reporter

3.
SCC Supreme Court Cases

4.
SC Supreme Court

5.
P. Page

6.
Para Paragraph

7.
SCR Supreme Court Report

8.
LTD Limited

9.
Vs. Versus

10.
LJ Law Journal

11.
CJ Chief Justice

12.
Ed. Edition

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 Abstract

Arrest usually take place when a person is suspected of having committed a criminal offence
and an attachment before judgment is to enable the plaintiff to realize the amount of the
decree, supposing a decree eventually made, from the defendant property. However, arrest
and detention is also a mode of enforcing the decree of a civil court. It depends on the decree
holder whether he wants to opt for this mode of execution. When the judgment debtor refuses
to pay the money or does not comply with the court’s order, then the decree holder can
enforce it through arrest. Before ordering arrest, a court must record its reasons in writing
for doing so. However, it just be noted that mere inability to pay will not lead to an arrest.
There are also certain restrictions with respect to persons who can be arrested. This paper
deals with the substantive and procedural aspects of such arrest and attachment of property.

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 1. INTRODUCTION

Under Order 38 Rule 1 of the Code the court, if satisfied by affidavit or otherwise, that the
defendant was about to leave India under circumstances affording reasonable probability that
the plaintiff would or might thereby be obstructed or delayed in the execution of any decree
that might be passed against the defendant in the suit could issue a. warrant to arrest the
defendant and bring him before the court to show cause why he should not furnish security
for his appearance. The proviso says that defendant shall not be arrested if he pays to the
officer entrusted with the execution of the warrant any sum specified in the warrant as
sufficient to satisfy the plaintiff’s claim; and such sum shall be held in deposit by the court
until the suit is disposed of or until further order of the court (Mschelska Mills .Mothers v.
Chorus Girl Inc).Under different rules of this Order 38, vast powers have been vested in the
Court in relation to the defendant as well as the property in suit, or both. Attachment before
judgment is one of the known concepts (Sony India Ltd. v.. Commissioner of Income Tax
and Addl. Commissioner of Income Tax, Range-9).

Under this Order, at any stage of the suit where the Court is satisfied that the defendants with
an intention to delay or to avoid any process of Court or obstruct or delay the decree that may
be passed against the defendant, the defendant has absconded or left the limitations of the
jurisdiction of the court, is about to do so or has disposed of or removed his property or any
part thereof under the jurisdiction of the Court, the court could issue a warrant of arrest with a
direction that such defendant be brought before the Court and be directed to furnish security
subject to such terms and conditions as the court may deem fit and proper.

Under Order 38, Rule 1 an extraordinary relief is given to the plaintiff, namely, in
appropriate case where the court finds a strong prima facie case in favour of the plaintiff and
if the Court is satisfied that the defendant is likely to defeat the decree in future as and when
it is passed, then the Court shall grant attachment before judgment even before final
adjudication of the claim of the plaintiffs, hence it is an extraordinary relief given to the
plaintiff by the Court (Vareed Jacob v. Sosamma Geevarghese).

The remedy of an attachment before judgment is certainly extraordinary. If granted, it casts

an obligation on the party against whom it is made, even before he is heard in defence to the
suit. The jurisdiction to issue warrant and call for security is vested with the court even with
regard to foreigners, just as it is vested with the court in regard to dishonest and fraudulent

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Indian defendants. And because the decree against him will have to be transmitted abroad for
execution, the court is vested with the jurisdiction to call for security. Where the judgment
debtor and garnishee are situated beyond the territorial jurisdiction of the execution court and
there is no material to show that the debt payable is within the jurisdiction of the execution
court, an order prohibiting garnishees from payment to judgment-debtor is beyond the
jurisdiction of court. A ship touching the temporarily at an Indian port is in the same position
as a foreign personnel defendant who is about to leave jurisdiction. If the claim against the
ship is reasonably arguable, then to the extent of the reasonably best decree obtainable by the

plaintiff, the court can and should obtain security from the ship before releasing her arrest1.

An attachment before judgment is to enable the plaintiff to realize the amount of the decree,
supposing a decree eventually made, from the defendant property’. This is the object of the
Order 38 rule 5 of The Civil Procedure Code, 1908 (herein after referred as CPC)2. The
scope and object of Order 38 rule 5 of CPC and the rules followed thereon merely to protect a
plaintiff against loss arising from the defendant making away with his property pending suit.
An attachment before judgment is in the nature of an interlocutory order. In Gurunadha Rao
v. Gamini Krishnayya, a Division Bench of the Hon’ble High Court of Andhra Pradesh held
that to be valid an attachment must be specific and clear in its purport. In Shivaraya and
Others Vs. Sharnappa and Others3 , the Hon’ble Single Judge followed Bankim Chandra and

Others’ case and Tavvala Veeraswamy’s4 case which considered such interlocutory orders to
have been passed in exercise of the Court’s ancillary powers. His Lordship Dawson-Miller C.
J. stated as follows:” The power given to the Court to attach a definite property before
judgment, is never meant to be exercised lightly or without clear proof of the existence of the
mischief aimed at in the rule.

1
Stephen Commerce Pvt Ltd v O and P Vessel MT ZaimaNavard AIR 1999 Cal 64
2
Ganu Singh Vs Jangi Lal, 26 C 531
3
AIR 1968 Mysore 283
4
AIR 1951 Cal 156.

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AIMS

The project is a comparative analysis of Arrest and Attachment of property before judgement
is passed and the aim is to present the relative analysis of the application of both in the
present day society.

OBJECTIVES

To define the role of intention in application of the present rules, i.e., order 38 and provide
suggestions for the improvement of current scenario in social context.

REVIEW OF LITERATURE

• Woodroffe and Ameer Ali, Commentary on the Code of Civil Procedure, 1908, Vol.
2, 4thedition (2006)
This book elaborately describes the law relating to the execution of court decrees and
orders. It is a commentary on Civil Procedure Code which discusses each and every
section and order in detail. Page- 395 to 483 consists of order XXXVIII where a number
of cases have been discussed.
• Mulla, Commentary on Code of Civil Procedure, 18 edition (2011), Vol. 4,
The object, principle and meaning of the sections and orders of the Code are explained
and analysed in the light of important judgments pronounced by the Supreme Court and
the various High Courts.

RESEARCH QUESTION

Is it necessary to furnish security in circumstances affording reasonable probability that the

plaintiff would or might cause delay in the execution of any decree that might be passed
against the defendant in a suit.

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RESEARCH METHODS APPLIED TO TEST THE HYPOTHESIS/HYPOTHESES

The methodology adopted for the project topic is the doctrinal method of research. Books
from the library and articles from various journals have been referred to for the collection of
data.

SOURCES OF DATA
The researcher will be relying on both primary and secondary sources to complete
the project.
1. Primary Sources : Books
2. Secondary Sources : Material Available on the internet.

LIMITATIONS OF THE PROJECT

The project is to be completed with in semester requirement and due to pausity of time not
much wider study can be coducted.

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 2.A BRIEF STUDY : MSCHELSKA MILLS .MOTHERS V. CHORUS GIRL INC).
AIR 1991 DELHI 129 CASE

Under Order 38 Rule 1

Under Order 38 Rule 1 of the Code the court, if satisfied by affidavit or otherwise, that the
defendant was about to leave India under circumstances affording reasonable probability that
the plaintiff would or might thereby be obstructed or delayed in the execution of any decree
that might be passed against the defendant in the suit could issue a. warrant to arrest the
defendant and bring him before the court to show cause why he should not furnish security
for his appearance. The proviso says that defendant shall not be arrested if he pays to the
officer entrusted with the execution of the warrant any sum specified in the warrant as
sufficient to satisfy the plaintiff’s claim; and such sum shall be held in deposit by the court
until the suit is disposed of or until further order of the court (Mschelska Mills .Mothers v.
Chorus Girl Inc).2 Under different rules of this Order 38, vast powers have been vested in
the Court in relation to the defendant as well as the property in suit, or both. Attachment
before judgment is one of the known concepts (Sony India Ltd. v.. Commissioner of
Income Tax and Addl. Commissioner of Income Tax, Range-9).3

Under this Order, at any stage of the suit where the Court is satisfied that the defendants with
an intention to delay or to avoid any process of Court or obstruct or delay the decree that may
be passed against the defendant, the defendant has absconded or left the limitations of the
jurisdiction of the court, is about to do so or has disposed of or removed his property or any
part thereof under the jurisdiction of the Court, the court could issue a warrant of arrest with a
direction that such defendant be brought before the Court and be directed to furnish security
subject to such terms and conditions as the court may deem fit and proper.

Under Order 38, Rule 1 an extraordinary relief is given to the plaintiff, namely, in
appropriate case where the court finds a strong prima facie case in favour of the plaintiff and
if the Court is satisfied that the defendant is likely to defeat the decree in future as and when
it is passed, then the Court shall grant attachment before judgment even before final
adjudication of the claim of the plaintiffs, hence it is an extraordinary relief given to the
plaintiff by the Court (Vareed Jacob v. Sosamma Geevarghese).4

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The remedy of an attachment before judgment is certainly extraordinary. If granted, it casts
an obligation on the party against whom it is made, even before he is heard in defence to the
suit. The purpose of the rule is to safeguard the right of the plaintiff in the event of his getting
a decree in his favour and to prevent a fraudulent defendant from defeating the decree. It is
clear that the court has to act with the utmost circumspection and with maximum care and
caution before issuing an order of attachment. Otherwise, it would become a weapon of
oppression in the hands of unscrupulous plaintiffs (V.K. Nataraja Gounder v. S.A.
Bangaru Reddiar).

Provisions of Rule 1 of Order 38 of the Code being stringent have to be strictly construed. A
bare reading would show that an order under this provision could be made only against the
defendant and against no one else. Now, if under Section 56 of the Code the court shall not
order the arrest or detention in civil prison of a woman in execution of a decree for the
payment of money, it cannot certainly order her arrest in a suit filed for recovery of money
where a decree is yet to be passed. A woman cannot be arrested or detained in civil prison
under Rule 1 of Order 38 of the Code (Mschelska Mills Mothers v. Chorus Girl Inc.). Under
Sub-rule (b) of Order 38 a foreigner, simply because he is a foreigner, and a decree might be
passed against him, might face arrest and the necessity of furnishing security, because he
does not reside in India. If it appears to the Court that the claim of plaintiff is reasonably
arguable to a certain extent, that the defendant is a foreigner who is about to leave India, and
that the decree if passed, might be delayed in execution because of the residence abroad of
the defendant, the Court would have jurisdiction to issue a warrant of arrest and maintain it
until security is furnished. It is noteworthy, that this jurisdiction to issue warrant and call for
security, is vested with the Court in regard to foreigners, just as it is vested with the Court in
regard to dishonest and fraudulent Indian defendants, although the foreigner might be a man
of blemish less finance and character, yet, because he is a foreigner, and because the decree
against him will have to be transmitted abroad for execution, the Court is vested with the
jurisdiction to call for security. This jurisdiction has to be appropriately exercised in all cases
which come before the Court (Stephen Commerce Pvt. Ltd. v. Owners and Parties in
Vessel M.T. Zaima Navard).

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 3.ARREST BEFORE JUDGEMENT

Where defendant may be called upon to furnish security for appearance.-

Where at any stage of a suit, other than a suit of the nature referred to in Section 16,

Clauses (a) to (d), the Court is satisfied, by affidavit or otherwise:

(a) That the defendant, with intent to delay the plaintiff, or to avoid any process of the Court
or to obstruct or delay the execution of any decree that may be passed against him:

(i) Has absconded or left the local limits of the jurisdiction of the Court; or

(ii) Is about to abscond or leave the local limits of the jurisdiction of the Court, or

(iii) Has disposed of or removed from the local limits of the jurisdiction of the Court his
property or any part thereof, or

(b) That the defendant is about to leave India under circumstances affording reasonable
probability that the plaintiff will or may thereby be obstructed or delayed in the execution of
any decree that may be passed against the defendant in the suit, the Court may issue a warrant
to arrest the defendant and bring him before the Court to show cause why he should not
furnish

Security for his appearance:

Provided that the defendant shall not be arrested if he pays to the officer entrusted with the
execution of the warrant any sum specified in the warrant as sufficient to satisfy the plaintiffs
claim; and such sum shall be held in deposit by the Court until the suit is disposed of or until
the further order of the Court.

Analysis of the provision

Under Order 38 Rule 1 of the Code the court, if satisfied by affidavit or otherwise, that the
defendant was about to leave India under circumstances affording reasonable probability that
the plaintiff would or might thereby be obstructed or delayed in the execution of any decree

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that might be passed against the defendant in the suit could issue a. warrant to arrest the
defendant and bring him before the court to show cause why he should not furnish security
for his appearance. The proviso says that defendant shall not be arrested if he pays to the
officer entrusted with the execution of the warrant any sum specified in the warrant as
sufficient to satisfy the plaintiff’s claim; and such sum shall be held in deposit by the court
until the suit is disposed of or until further order of the court5. Under different rules of this
Order 38, vast powers have been vested in the Court in relation to the defendant as well as the
property in suit, or both. Attachment before judgment is one of the known concepts6. Under
this Order, at any stage of the suit where the Court is satisfied that the defendants with an
intention to delay or to avoid any process of Court or obstruct or delay the decree that may be
passed against the defendant, the defendant has absconded or left the limitations of the
jurisdiction of the court, is about to do so or has disposed of or removed his property or any
part thereof under the jurisdiction of the Court, the court could issue a warrant of arrest with a
direction that such defendant be brought before the Court and be directed to furnish security
subject to such terms and conditions as the court may deem fit and proper.

Rule 1

Under Order 38, Rule 1 an extraordinary relief is given to the plaintiff, namely, in appropriate
case where the court finds a strong prima facie case in favour of the plaintiff and if the Court
is satisfied that the defendant is likely to defeat the decree in future as and when it is passed,
then the Court shall grant attachment before judgment even before final adjudication of the
claim of the plaintiffs, hence it is an extraordinary relief given to the plaintiff by the Court. 7
The remedy of an attachment before judgment is certainly extraordinary. If granted, it casts
an obligation on the party against whom it is made, even before he is heard in defence to the
suit. The purpose of the rule is to safeguard the right of the plaintiff in the event of his getting
a decree in his favour and to prevent a fraudulent defendant from defeating the decree. It is
clear that the court has to act with the utmost circumspection and with maximum care and
caution before issuing an order of attachment. Otherwise, it would become a weapon of
oppression in the hands of unscrupulous plaintiffs.8 Provisions of Rule 1 of Order 38 of the
Code being stringent have to be strictly construed. A bare reading would show that an order

5
Mschelska Mills’s .Mothers v. Chorus Girl Inc.AIR 1991 Del 129.
6
Sony India Ltd. v.. Commissioner of Income Tax and Addl. Commissioner of Income Tax2005 (83) DRJ 75.
7
Vareed Jacob v. Sosamma Gee Varghese AIR 2004 SC 3992.
8
V.K. Nataraja Gounder v. S.A. Bangaru ReddiarAIR 1965 Mad212.

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under this provision could be made only against the defendant and against no one else. Now,
if under Section 56 of the Code the court shall not order the arrest or detention in civil prison
of a woman in execution of a decree for the payment of money, it cannot certainly order her
arrest in a suit filed for recovery of money where a decree is yet to be passed.9 A woman
cannot be arrested or detained in civil prison under Rule 1 of Order 38 of the Code.

Under Sub-rule (b) of Order 38 a foreigner, simply because he is a foreigner, and a decree
might be passed against him, might face arrest and the necessity of furnishing security,
because he does not reside in India. If it appears to the Court that the claim of plaintiff is
reasonably arguable to a certain extent, that the defendant is a foreigner who is about to leave
India, and that the decree if passed, might be delayed in execution because of the residence
abroad of the defendant, the Court would have jurisdiction to issue a warrant of arrest and
maintain it until security is furnished. It is noteworthy, that this jurisdiction to issue warrant
and call for security, is vested with the Court in regard to foreigners, just as it is vested with
the Court in regard to dishonest and fraudulent Indian defendants, although the foreigner
might be a man of blemish less finance and character, yet, because he is a foreigner, and
because the decree against him will have to be transmitted abroad for execution, the Court is
vested with the jurisdiction to call for security. This jurisdiction has to be appropriately
exercised in all cases which come before the Court.

Rule 2

2. Security.—

(1) Where the defendant fails to show such cause the Court shall order him either to deposit
in Court money or other property sufficient to answer the claim against him, or to furnish
security for his appearance at any time when called upon while the suit is pending and until
satisfaction of any decree that may be passed against him in the suit, or make such order as it
thinks fit in regard to the sum which may have been paid by the defendant under the proviso
to the last preceding rule.

(2) Every surety for the appearance of a defendant shall bind himself, in default of such
appearance, to pay any sum of money which the defendant may be ordered to pay in the suit.

9
Stephen Commerce Pvt. Ltd. v. Owners and Parties in Vessel M.T. Zaima Navard AIR 1999 Cal64

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Under Rule 2 of Order 38 of the Code if the defendant fails to show such cause, the court can
order him either to deposit money in court or other property sufficient to answer the claims
against him or to furnish security for his appearance at any time when called upon during the
pendency of the suit and until satisfaction of any decree that might be passed against him.
Under sub-rule (2) of this Rule every surety for the appearance of a defendant shall bind
himself, in default of such appearance to pay any sum of money which the defendant might

be ordered to pay in the suit.10

Rule 3

3. Procedure on application by surety to be discharged.—

(1) A surety for the appearance of a defendant may at any time apply to the Court in which he
became such surety to be discharged from his obligation.

(2) On such application being made, the Court shall summon the defendant to appear or, if it
thinks fit, may issue a warrant for his arrest in the first instance.

(3) On the appearance of the defendant in pursuance of the summons or warrant, or on his
voluntary surrender, the Court shall direct the surety to be discharged from his obligation,
and shall call upon the defendant to find fresh security.

Rule 3 prescribes the procedure when a surety could be discharged on his making an
application during the pendency of the suit.11 A “security”’ speaking generally, is anything
that makes the money more assured in its payment or more readily recoverable; as
distinguished from e.g., a mere I.O.U. which is only evidence of debt”. It does not therefore
exclude the guarantee which can be provided by any surety. There is yet another indication
which can be called out from the manner in which the term “security” has been employed in
the Civil Procedure Code itself. That word occurs with reference to the proceedings under
Order XXXVIII Rules 2 and 3, and also in the matter of furnishing sureties when property is
disdained or a person is arrested. In that context also, the word “security” has been used as
synonymous with “surety” and therefore, the meaning that has to be given to the word

10
Legu Venkataramanayya Setty v. Gunda Subbayya Chetty AIR 1962 AP175.
11
Mschelska Mills Mothers v. Chorus Girl Inc. AIR 1991 Del 129.

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“security” should be taken to be comprehensive enough to include a “surety” or at least not to
exclude it.

Rule 4

4. Procedure where defendant fails to furnish security or find fresh security.—

Where the defendant fails to comply with any order under Rule 2 or Rule 3, the Court may
commit him to the civil prison until the decision of the suit or, where a decree is passed
against the defendant, until the decree has been satisfied. Provided that no person shall be
detained in prison under this rule in any case for a longer period than six months, nor for a
longer period than six weeks when the amount or value of the subject-matter of the suit does
not exceed fifty rupees. Provided also that that no person shall be detained in prison under
this rule after he has complied with such order.

Rule 4 prescribes the procedure where the defendant fails to furnish security and in that
eventuality the court may commit him to civil prison until the decision of the suit or, where
decree is passed against the defendant, until the decree has been satisfied

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 4.ATTACHMENT BEFORE JUDGMENT

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.

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. 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.12An attachment after decree is an attachment made for the immediate purpose of
arraying the decree into execution, and if presupposes an application on the part of the decree

12
S.P. Vasakumar Pillai vs The Motor Accidents Claims AIR 2008 AP 74

19 | P a g e
holder to have his decree executed.13 It is a sort of a guarantee against decree becoming
infructuous for want of property available from which the plaintiff can satisfy the decree.14

A defendant is not debarred from dealing with his property merely because a suit is filed or
about to be filed against him. Shifting of business from one premises to another premises or
removal of machinery to another premises by itself is not a ground for granting attachment
before judgement. A plaintiff should show, prima facie, that his claim is bona fide and valid
and also satisfy the Court that the defendant is about to remove or dispose of the whole or
part of his property, with the intention of obstructing or delaying the execution of any decree
that may be passed against him, before power is exercised under Order 38 Rule 5 C.P.C.
Courts should also keep in view the principles relating to grant of attachment before

judgment.15

Analysis of the provision

The Scheme of Order 38 and the use of the words `to obstruct or delay the execution of any
decree that may be passed against him’ in Rule 5 make it clear that before exercising the
power under the said Rule, the court should be satisfied that there is a reasonable chance of a
decree being passed in the suit against the defendant. This would mean that the court should
be satisfied the plaintiff has a prima facie case. If the averments in the plaint and the
documents produced in support of it, do not satisfy the court about the existence of a prima
facie case, the court will not go to the next stage of examining whether the interest of the
plaintiff should be protected by exercising power under Order 38 Rule 5CPC.16 The Hon’ble
Apex Court held in the case of Raman Tech. & Process Engg. Co. & Anr 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.

Application of Order 38, Rule 5 CPC:-

Where the property is the property in suit, an injunction should be obtained :- Where the
property is the property in suit, an injunction should be obtained under O.XXXIX rule.1,

13
Sri Rammanik Vs.Tin Cowri Rai, B.L.R 63,67,68 FB 1869
14
Sardar Govindrao Mahadik & Anr vs Devi Sahai & Ors, 1982 AIR 989
15
Prem Raj Mundra v. Md.Maneck Gazi, AIR (1951) Cal 156
16
Raman Tech. & Process Engg. Co. & Anr. Vs.Solanki Traders 2008 (2) SCC 302.

20 | P a g e
Clause (a), which may be enforced under rule.2 of that Order by imprisonment or attachment,
And where the property is not that in suit, an alternative is given under r.1 of the same Order,
Clause (b), where the words ‘Property’ is not confined to property within the jurisdiction, or
property which is in dispute in the suit. 17Where it is pointed out that Joy narain Geeree Vs.

Shibpershad,18 is not applicable as Sec. 93 of the Code of 1859 was expressly limited to the
property in dispute.

No attachment on light grounds:- In 1866, in the case of Gamble Vs Bholgir19 , it was

observed that the jurisdiction to attach before judgment should be exercised with great
discretion, and no court should grant such an attachment on light grounds or unless it is
perfectly satisfied with trustworthy evidence that the defendant is about to dispose of his
property or to remove it from the jurisdiction of the Court.

Where the most perfect good faith is wanting, the application should be rejected:- In all
applications for attachment before judgment, there must be unbarring fides on the part of
plaintiff, and where the most perfect good faith is wanting the application should be
rejected.20

Any stage of the suit: - The application can be made at any stage of the suit, but can be
entertained only so long as the suit is pending.21

Intention to obstruct or delay the execution of any decree which might be passed: - The facts
mentioned in clauses (a) and (b) must have been done with the intent mentioned in the first
paragraph, namely, to obstruct or delay the execution of any decree which might be passed.22

The words, ‘about to dispose of ’:- Clause (a) says, is ‘about to dispose of ’, etc., therefore the
section does not apply where the defendant has actually parted with the properties.23

It does not refer exclusively to movable properties:- The Section does not refer exclusively to
movable properties but applies to immoveable properties also.24

17Raja Goculdas vs. Jankibai, 5 Bom. L.R. 570 (1903),

18
6 W.R. Misc. 1 (1866)
19
2 BHCR 146,161
20
Ahmed Ali vs. Gladstone Wyllie, 7 W.R 508 (1867).
21
Sri Rammanik Vs.Tin Cowri Rai, B.L.R 68 FB
(1869) 22Ram Narain vs. Levy, 2 Hyde, 183 (1864).
23
Soorjee Kumar Vs. Issur Chunder, Bourke, 243 (1865)
24
Bishambar Vs. Sukhdesi, 16 A 186 (1894)

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Attachment of property covers its profits:- As has been held in Ram Coomar Vs.
Gobindnath,25, attachment of property covers its profits. But if the owner is allowed to enjoy
them the profits cease to be specifically liable.

In Govindrao Mahadik v. Devi Sahai, , the Hon’ble Supreme Court held at para 58 of its
judgment as follows: “Attachment before judgment is levied where the Court on an
application of the plaintiff is satisfied 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 sole object behind the order levying
attachment before judgment is to give an assurance to the plaintiff that his decree if made
would be satisfied. It is a sort of a guarantee against decree becoming infructuous for want of
property available from which the plaintiff can satisfy the decree.” In the case of Mamidala
Suresh Babu and Ors. Vs Tirumalasetti Krishnamurthy and Ors.26 the Hon’ble High Court of
Andhra Pradesh, it was held that the sine qua non for an order of attachment before judgment
or for an order demanding security before judgment is that the defendant is disposing of or
about to dispose of his property with the dishonest intention of defeating or delaying the
possible decree in the suit. The merits of the claims of the contending parties are merely
ancillary factors for consideration by the Court in arriving at a conclusion with regard to the
essential requirements of Order 38, Rule 5, and C.P.C. 27

Property without the jurisdiction:-

It was held under the last Code both that the section did not and did apply where the property
sought to be attached was beyond the jurisdiction of the Court in which the suit was pending.
A Court which cannot attach primarily in execution of its decree cannot attach in anticipation
of it. It was therefore held, even under the Code of 1859, that a Court of Small Causes could
not attach immoveable property under this section. It was held that the Court had jurisdiction
where the property was a chose in action due from the Collector who, like the judgment-
debtor, resided within the jurisdiction of the attaching court.28

25
12 W.R. 391 (1869)
26
2006 (3) ALD 605
27
Nowroji Pudumjee vs. Deccan Bank Ltd., A. I. R. (8) 1921 Bom. 69
28
Ravji Moreshwar vs. Narayan Ballal, 3 Bom. L.R. 462 (1901)

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Effect of attachment:-

If we go through the ruling of the Hon’ble Supreme Court in the case of Sardar Govindrao

Mahadik & Anr vs Devi Sahai & Ors,29 1982 AIR 989, , we can find answer to this question.
What is the effect of attachment before judgment? Attachment before judgment is levied
where the court on an application of the plaintiff is satisfied 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 sole object
behind the order levying attachment before judgment is to give an assurance to the plaintiff
that his decree if made would be satisfied. It is a sort of a guarantee against decree becoming
infructuous for want of property available from which the plaintiff can satisfy the decree. The
provision in section 64 of the Code of Civil Procedure provides that where an attachment has
been made, any private transfer or delivery of the property attached or of any interest therein
and any payment to the judgment debtor of any debt, dividend or other monies contrary to.
Such attachment, shall be void as against all claims enforceable under the attachment. What is
claimed enforceable is the claim for which the decree is made. Motilal’s suit was for a money
claim. It finally ended in a decree for Rs. 500 by High Court and in between the 1st appellate
court had dismissed Motilal’s suit in entirety. There is nothing to show that the attachment
which would come to an end on the suit being dismissed would get revived if a second appeal
is filed which ultimately succeeds. In fact, a dismissal of the suit may terminate the
attachment and the same would not be revived even if the suit is restored and this becomes
manifestly clear from the newly added provision in sub rule (2) of rule 11 A of order XXXIII,
C.P.C. which provides that attachment before judgment in a suit which is dismissed for
default shall not be revived merely because 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. 30 As a
corollary it would appear that if attachment before judgment is obtained in a suit which ends
in a decree but if in appeal the decree is set aside the attachment of necessity must fail. There
should be no difficulty in reaching this conclusion.

29
1982 SCR (2) 186
30
S. Noordeen vs S. Thiru Venkita Reddiar & Ors: 1996 AIR 1293

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 5.CONCLUSION

If at the time of filing the plaint, or at any other stage of the suit, an application is made by
the plaintiff, under Order XXXVIII of the Code, for the arrest of the defendant or for the
attachment of his property before judgment, the Court should proceed to consider the
application with reference to the provisions of the Code and the following instructions.
Orders for arrest or attachment before judgment ought not to be made on insufficient
grounds. The circumstances which justify a Court in passing an order of this nature are
distinctly stated in Order XXXVIII of the Code of Civil Procedure. The Court should, in
every such case, be satisfied (Order XXXVIII, Rules 1 and 5) that the defendant has or is
about to dispose of or remove the property from its jurisdiction or that he has or is about to
leave its jurisdiction. It is no doubt true that it is competent for a civil Court to pass an ex
parte ad interim order directing attachment before judgment, if the facts and circumstances
warrant. Normal rule should be to issue notice to the defendant requiring him to explain as to
why he be not required to furnish security or suffer an order of attachment before judgment.
The order passed by the trial Court virtually proceeds on the assumption that the appellant is
under obligation to furnish security. The finding in this regard needs to be arrived at after
hearing the parties

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 BIBLIOGRAPHY

Books

• Woodroffe and Ameer Ali, Commentary on the Code of Civil Procedure, 1908,
Vol. 2, 4thedition (2006)
• Mulla, Commentary on Code of Civil Procedure, 11edition (2011), Vol. 4,

Index of Authorities

1. Subhani v. Sadho Ram, 37 P.R. 1873.

2. Chena Pemaji v. Chelabhi, I.L.R. 7 Bom 301.
3. Damodar v. Malhari, I.L.R. 7 Bom 106.
4. Panna Lal v. Kanhaiya Lal, I.L.R. 16 Cal 85.
5. Arjun Singh v. Gaman, 75 P.R. 1905.
6. Ponnuswami v. Narayanaswami, 14 M.L.T. 304.
7. Alagappa Chetti v. Sarathambal, I.L.R. 25 Mad. 724.
8. Kishan Chand v. Sassoon, 83 P.W.R. 1910
9. Woodroffe and Ameer Ali, p. 767.
10. MVLA Vishwanathan v. Abdul Majid, AIR 1925 Rang 305.
11. Jagannathan v. Prabhakar Rao, (1966) 2 WR 306.
12. Narasinha v. Rangachari, Air 1926 Mad 689.
13. Kishore v. Netherlands Trading Society, AIR 1930 Cal 555.
14. Satyanarain Prasad v. Mahabir Prasad, AIR 1937 Pat 476.
15. Abdul v. Mistri, AIR 1922 Bom 340.
16. Channappa v. Yellappa, AIR 1931 Bom 444.
17. Sankaranarayana v. Peranisiram, AIR 1942 Mad 101.
18. Makanji v. Bhukandas, AIR 1924 Bom 428.
19. Kali Ram v. Umrao Singh, AIR 1934 Lah 92.
20. Nageshar v. Gulzari Lal Narain Dasa, AIR 1933 All 382.
21. Raghubir Singh v. Maharul Huque, AIR 1942 Pat 506.
22. Raj Chander v. Shama Soondari, I.L.R. 4 Cal. 583.
23. Channa Penji v. Ghelabhai, I.L.R. 7 Bom 301.

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