Case Note & Summary
The appeal arises from a suit filed by financial institutions (respondents 2 to 12) against J.K. Synthetics Limited (appellant) for recovery of dues. The trial court passed an order of attachment before judgment under Order 38 Rule 5 CPC. The appellant challenged the order on the ground that the court did not comply with Order 38 Rule 5A CPC, which requires notice to the defendant before ordering attachment. The High Court held that the power under Order 38 Rule 5 is discretionary and the order is not vitiated merely because reasons for dispensing with notice were not recorded, unless the defendant shows prejudice. The court found that the appellant had an opportunity to be heard and no prejudice was caused. The appeal was dismissed.
Headnote
A) Civil Procedure - Attachment Before Judgment - Order 38 Rule 5 CPC - Discretionary Power - The court has discretion to order attachment before judgment if it is satisfied that the defendant is about to dispose of or remove his property with intent to obstruct or delay the execution of any decree. The order is not vitiated merely because the court did not record reasons for dispensing with notice under Rule 5A, unless prejudice is shown. (Paras 1-10) B) Civil Procedure - Order 38 Rule 5A CPC - Notice Before Attachment - Non-Compliance - Non-compliance with the requirement of issuing notice to the defendant before ordering attachment does not automatically invalidate the order if the defendant had an opportunity to be heard later and no prejudice is caused. (Paras 5-10)
Issue of Consideration
Whether the order of attachment before judgment passed under Order 38 Rule 5 CPC is liable to be set aside for non-compliance with the requirement of Order 38 Rule 5A CPC?
Final Decision
The appeal is dismissed. The order of attachment before judgment is upheld.
Law Points
- Order 38 Rule 5 CPC
- Order 38 Rule 5A CPC
- Attachment before judgment
- Discretionary power
- Prejudice
- Non-compliance with Rule 5A
