Скачать или смотреть ATTACHMENT BEFORE JUDGMENT Relevant Provision Order XXXVIII CPC

ATTACHMENT BEFORE JUDGMENT,Order XXXVIII #AttachmentBeforeJudgment
#pld2018Sindh339) #attachment
#PLD2017Lahore689
#2015YLR2674)
 Object of attachment before judgment was to prevent an attempt on part of
defendant of defeating realization of decree which was to be ultimately
passed against him---Such was a preventive and not a punitive action---
Attachment could be ordered, if court was satisfied that defendant was about
to dispose of whole or any part of his property with intent to obstruct or delay
execution of decree, with or without application as court had to consider/see
substance of case to meet the ends of justice- (PLD 2018 Sindh 339)
 Intention of the Legislature was very clear with regard to the attachment
before judgment that to preserve and protect the property, which was in
dispute and for the satisfaction of the decree, then interim order was to be
passed; that the basic criteria given for passing restraining order of the
property in dispute was for the satisfaction of the decree if considered
necessary- (PLD 2017 Lahore 689)
Conditions
 Application under O. XXXVIII, R. 5, C.P.C. was an extraordinary relief
where if Court was satisfied that other party was likely to defeat decree in
future then under such special circumstances, Court may pass order with
regard to attachment before Judgment. (2020 CLD 238)
 Such power is not to guarantee the plaintiff availability of an asset to
satisfy decree which ultimately may be passed; it is to ensure non-abusing
of process of court by defendant. (2019 YLR 345)
 Banking Court had rightly dismissed application on the ground that there
was neither prima facie case made out nor any apprehension or probability
expressed in application for alienation of the property or that defendants(43)
would remove themselves from the jurisdiction of the Court. Application for
attachment of property before judgment dismissed. (2018 CLD 1086)
 Provisions of O.XXXVIII, R.8, C.P.C. to be invoked where a party was likely
to frustrate the order/decree of the Court either by absconding away or
removing his property from the ambit of power of Court---Such provision
was meant to protect future interest in the property---No such claim or
allegation on behalf of plaintiffs was on record, in the present case---Claim of
a party should be based on such facts and circumstances which could
convince the Court to believe that there was real danger with regard to
removal of property from the ambit of Court---Application for arrest and
attachment of property before judgment could succeed only when there was
an apprehension of irreparable loss and injury to the interest of party who
was likely to acquire the property at the end of the day through
judgment/decree of the court. (2015 CLC 1695)
 Before exercising power conferred by O.XXXVIII, C.P.C. a Court should be
satisfied on two points---First that plaintiff's cause of action is prima facie an
unimpeachable on subject to his/her proving allegations/claims made in
plaint; second being that Court should have reason to believe on the basis of
material that unless jurisdiction is exercised there is a real danger that
defendant may remove himself from the ambit of powers of Court. (PLD
2015 Sindh 134)
Onus to prove
Onus of proof is on plaintiff's shoulders to establish that defendant is going to
dispose of his property with an 'intent' to 'obstruct' or 'delay' execution of any decree
that may be passed against him. (2016 CLD 1202) Attachment of property before
judgment was an exceptional remedy under exceptional circumstances which
should be established through some cogent evidence. Only apprehension of the
plaintiff, in the present case, was that he would not be able to get execution of(44)
decree which apparently would be in terms of money. Mere establishing prima facie
good case was no ground for invoking the provisions of O. XXXVIII, R.5, C.P.C.
without first complying with sub-Rule 1 of R.5 of the said provision (2015 YLR
2674)