Case Note & Summary
The appeal was filed by the original defendant, Mrs. Leela Sudhir Alekar, against an order dated 3 February 2000 passed by the trial court allowing the respondent/plaintiff M/s. M.K. Associates' application for attachment before judgment. The trial court directed the appellant to furnish security of Rs. 17,00,000 within 15 days, failing which the property described in the schedule would stand attached. The appellant challenged this order in the High Court. At the time of admission, the High Court granted interim stay of the impugned order, which continued to operate. The appellant's counsel argued that no case for attachment before judgment was made out based on the averments in the application and the reply. The respondent's counsel relied on a communication dated 7 November 1997 from the appellant's advocate stating that the appellant was free to sell the property to any third party, arguing that this justified the attachment. The High Court considered the rival submissions and examined the requirements of Order 38 Rule 5 of the Code of Civil Procedure, 1908. The court noted that the provision requires the plaintiff to show that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him, is about to dispose of or remove his property. The court found that the respondent failed to establish such intent. The mere statement that the appellant was free to sell the property did not demonstrate an intent to defeat the decree. Consequently, the High Court allowed the appeal, set aside the impugned order, and directed that the Civil Application for vacating stay be disposed of accordingly.
Headnote
A) Civil Procedure - Attachment Before Judgment - Order 38 Rule 5 CPC - Intent to Defeat Decree - The court held that for attachment before judgment, the plaintiff must show that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him, is about to dispose of or remove his property. A mere threat to sell property, without evidence of intent to defeat the decree, is insufficient. The trial court's order was set aside as the respondent failed to establish the requisite intent. (Paras 1-4)
Issue of Consideration
Whether the trial court was justified in granting attachment before judgment under Order 38 Rule 5 of the Code of Civil Procedure, 1908, based on the respondent/plaintiff's application.
Final Decision
The appeal is allowed. The impugned order dated 3 February 2000 is quashed and set aside. The Civil Application No. 1086 of 2001 for vacating stay is disposed of accordingly.
Law Points
- Attachment before judgment
- Order 38 Rule 5 CPC
- Intent to defeat decree
- Security for satisfaction of decree
