§ Order XXXVIII Rule 5, CPC 1908 (in substance)

(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.

(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), such attachment shall be VOID.

§ What must be established

• An act: that the defendant is about to dispose of his property, or about to remove it from the jurisdiction. Something already done, or an ordinary commercial dealing, is not enough.

• An intent: that he does so with intent to obstruct or delay the execution of any decree that may be passed. This is where most applications fail, and it must be made out on material, not on an affidavit repeating the language of the rule.

• And a procedure: the defendant must first be called on to furnish security or show cause. Sub-rule (4) makes an attachment in breach of that requirement void, so the requirement is jurisdictional rather than procedural.

§ What is required, and what follows

• A decree and an application. Nothing beyond a valid decree and an execution application under Order XXI Rule 11 need be shown. The judgment-debtor's intent is irrelevant.

• What may be attached. Section 60 lists property liable to attachment and, in its proviso, the property exempt: necessary wearing apparel, tools of artisans, implements of husbandry, a portion of salary, and the rest.

• The manner. Order XXI Rules 41 to 54 prescribe the modes: movable property in the debtor's possession, debts and shares, salary, negotiable instruments, property in the custody of a court, a share in movables, and immovable property by a prohibitory order under Rule 54.

• The effect. Section 64: a private transfer or delivery of attached property, or of any interest in it, contrary to the attachment, is void as against all claims enforceable under the attachment.

• And the point of it all: sale, under Rules 64 to 94, with the proceeds applied to the decree under Section 73.

When

During the suit, before any decree

After a decree, in execution proceedings

Purpose

To FREEZE, so that a decree that may be passed is not defeated

To REALISE, by selling the property and satisfying the decree

What must be shown

That the defendant is about to dispose of or remove property, AND intends thereby to obstruct or delay execution

A valid decree and an execution application; intent is irrelevant

Preliminary step

The defendant must be called on to furnish security or show cause; Rule 5(4): an attachment without it is VOID

None; the attachment follows the order on the execution application

Sale

None. The property is frozen, not sold

Sale follows under Rules 64 to 94

Effect on private transfers

The attachment does not affect the pre-existing rights of persons not parties: Rule 10

Section 64: a transfer contrary to the attachment is void as against claims enforceable under it

Other decree-holders

Rule 10: another decree-holder may still apply for a sale in execution of his own decree

Section 73: rateable distribution among decree-holders who have applied in time

Withdrawal

Rule 9: withdrawn on security being furnished, or on the dismissal of the suit

Withdrawn on satisfaction of the decree or on the execution application being dismissed

On a decree being passed

Rule 11: NO RE-ATTACHMENT is needed; the attachment carries into execution

Not applicable

If the case fails

Section 95: compensation up to fifty thousand rupees where the attachment was obtained on insufficient grounds

Not applicable, the decree having been established

§ Order XXXVIII Rule 11 and Rule 9

Rule 11: no re-attachment. Where property is under attachment before judgment 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. The freeze becomes the foundation of the realisation.

Rule 9: withdrawal. Where an order of attachment before judgment has been made, the court shall withdraw it when the defendant furnishes the security required, together with security for the costs of the attachment, or when the suit is dismissed.

Together they describe the two exits. Either the plaintiff wins, and the attachment matures into execution without being redone; or he fails, and the attachment falls, with Section 95 available to the defendant if it was obtained on insufficient grounds.

§ Order XXXVIII Rule 7: the manner is borrowed

Save as otherwise expressly provided, the attachment shall be made in the manner provided for the attachment of property in execution of a decree.

So the modes in Order XXI Rules 41 to 54 apply to an attachment before judgment, and Rule 8 applies the claim-adjudication procedure of Order XXI to claims preferred against such an attachment.

The difference is therefore one of purpose and conditions, not of mechanics. The same forms of attachment are used; what differs is what must be shown before one is ordered, and what may be done afterwards.