Case Note & Summary
The dispute arose from a civil suit filed by the respondent against the appellants for recovery of Rs. 99,200 towards material supplied. The plaintiff sought an order under Order 38 Rule 5 of the Code of Civil Procedure, 1908 (CPC) for attachment before judgment, alleging that the defendants had dishonoured cheques and were attempting to remove their assets from the court's jurisdiction. The trial court dismissed the application, finding that the plaintiff had not established a prima facie case. The plaintiff challenged this decision in the High Court, which allowed the revision and directed the defendants to furnish security. The Supreme Court examined the principles governing Order 38 Rule 5 CPC, emphasizing that a mere claim or the act of shifting assets does not suffice for granting attachment before judgment. The court noted that the High Court had overlooked the necessity of a prima facie case and had acted on the basis of the defendants' actions without sufficient evidence of intent to defeat a potential decree. Consequently, the Supreme Court set aside the High Court's order and restored the trial court's decision, reaffirming the need for a clear prima facie case before such drastic measures are taken.
Headnote
A) Civil Procedure - Attachment Before Judgment - Requirement of Prima Facie Case - Code of Civil Procedure, 1908, Order 38 Rule 5 - The court held that a plaintiff must establish a prima facie case before an order of attachment before judgment can be granted, and the High Court erred in granting such relief without satisfying this requirement. (Paras 4-8).
Issue of Consideration
Whether the High Court erred in granting attachment before judgment under Order 38 Rule 5 of the Code of Civil Procedure, 1908.
Final Decision
The Supreme Court allowed the appeal, set aside the High Court's order, and restored the trial court's decision rejecting the application for attachment before judgment.
Law Points
- Order 38 Rule 5 CPC
- prima facie case
- attachment before judgment
- revisional jurisdiction
- securing claims
