Discuss the circumstances under which execution court .... attachment... under the Code of Civil Procedure, 1908.

Question: Discuss the circumstances under which execution court can pass attachment before judgment order under the Code of Civil Procedure, 1908.

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Answer

Under the Code of Civil Procedure, 1908 (CPC), an Execution Court does not have the inherent power to pass an attachment before a judgment order. The power to order attachment before judgment is explicitly provided under Order XXXVIII, Rule 5 of the CPC, which is exercised by the trial court and not by the execution court. However, an execution court may enforce an attachment before judgment order if it was previously granted by the trial court during the pendency of the suit.

Circumstances Under Which an Execution Court Can Pass Attachment Before Judgment Order

Although an execution court typically lacks jurisdiction to order attachment before judgment, certain circumstances may allow for attachment to be effected at the execution stage:

1. If a Decree Includes an Order of Attachment Before Judgment: When a trial court, during the pendency of the suit, has ordered attachment before judgment under Order XXXVIII, Rule 5 and the decree is passed in favour of the plaintiff, the execution court may continue or enforce the attachment while executing the decree.
2. If the Decree Holder Seeks Preventive Measures Against Judgment Debtor: If the decree-holder proves that the judgment debtor is attempting to dispose of property or remove it beyond the court’s jurisdiction, the execution court may issue an attachment order to protect the decree holder’s interests. This can be done under Order XXI, Rules 46 & 54 of the CPC, which deals with the execution of decrees by attachment of property.
3. Fraudulent Transfer by Judgment Debtor (Section 52 of the Transfer of Property Act, 1882 & Section 64 CPC): If a judgment debtor fraudulently transfers property to defeat execution proceedings, the court may set aside the transfer and attach the property to prevent further alienation.
4. Attachment in Case of Non-Satisfaction of Decree (Order XXI, Rule 41-54, CPC): If a decree for money remains unsatisfied, the execution court may attach the debtor’s property under Order XXI, Rule 41-54. While this is not strictly an "attachment before judgment," it serves a similar protective function at the execution stage.
5. Preventing Evasion of Execution (Section 151, CPC – Inherent Powers of the Court): If the judgment debtor is deliberately trying to evade execution, the court may invoke its inherent powers under Section 151 CPC to issue an attachment order in exceptional cases.

An execution court cannot ordinarily pass an attachment before a judgment order. However, it can enforce an attachment granted by the trial court or order a fresh attachment under Order XXI if required for execution. Additionally, in cases of fraud, evasion, or non-satisfaction with the decree, the execution court may resort to legal provisions to protect the decree holder’s interests.