Attachment before judgment - Simultaneous orderi.e., issuance of show cause notice and issuance of conditional order of attachment - Can be passed.

Citation

AIR 2001 ORISSA 6

ORISSA HIGH COURT

B. P. DAS , J.

Misc. Appeal No. 524 of 2000, D/- 28 - 9 - 2000*

Sk. Sahid Appellants v. Smt. Tehera Husna Respondent

Civil P.C. (5 of 1908), O.38 R.5, O.38 R.6 - Attachment before judgment - Simultaneous order

i.e., issuance of show cause notice and issuance of conditional order of attachment - Can be

passed.

Provision under O. 38, R. 5, sub-rule (4), C. P.C. which was inserted in the C.P.C. with effect from

2-2-1977 by way of amendment is intended for the protection of the person whose property is sought

to be attached before judgment i.e., a protection to the defendant against the order of attachment

passed against him denying any opportunity of preventing the attachment by offer of security. So it

cannot be disagreed that the provision under O. 38, R. 5, sub-rule (4), C.P.C. is to protect the interest

of the defendant so that no order of attachment can be passed without complying with the provisions

under O. 38, R. 5, sub-rule (1), C.P.C., but at the same time to protect the interest of the plaintiff

an order under O. 38, R. 5. Sub-rule (3) can be passed along with issuance of notice under O.38,

R. 5, sub-rule (1), C.P.C., otherwise the intention and spirit of O. 38, R. 5 would be defeated and

thereby issuance of simultaneous order of conditional attachment along with notice under O. 38, R.

5(1) cannot be faulted with.

 (Para 11) 

Cases Referred Chronological Paras

Smt. Kamala Pande v. M/s. Krishna Cloth Stores, AIR 1989

Ori 229 : (1989) 67 Cut LT 679

6

Sri Bijay Kumar Agarwalla v. Ramakanta Das, (1987) 64 Cut

LT 540

9

N. Papammal v. L. Chidambaram, AIR 1984 Mad 70 10, 11

Premraj Mundra v. Md. Haneck Gazi, AIR 1951 Cal 156 12