Attachment Before Judgment under Order 38 Rule 5 CPC | Case Laws & Section 94

Power and Duties of Courts in Ordering Attachment Before Judgment

In civil courts across the subcontinent, attachment before judgment under Order 38 Rule 5 of the Code of Civil Procedure, 1908 (CPC) is one of the most powerful interim measures. Used properly, it prevents a dishonest defendant from frustrating a future decree by quietly disposing of or removing property. Used blindly, it becomes a tool of harassment and economic pressure.

Illustration of attachment before judgment under Order 38 Rule 5 CPC, securing property so that any decree is not defeated.

1. Concept of Attachment Before Judgment & Statutory Framework

Order 38 of the CPC is titled “Arrest and Attachment Before Judgment”. Rules 1–4 deal mainly with arrest; Rules 5–13 deal with attachment before judgment.

In substance, Order 38 Rule 5 CPC allows the court, at any stage of the suit, to call upon the defendant to furnish security or show cause, and in suitable cases to order conditional attachment, where:

• There is a pending civil suit;
• The plaintiff has a prima facie case; and
• The defendant, with intent to obstruct or delay execution of a possible decree, is about to:
  • Dispose of the whole or any part of his property, or
  • Remove the whole or any part of his property outside the court’s jurisdiction.

The rule is common to CPC-based jurisdictions of the subcontinent (Pakistan, India, Bangladesh), subject to local amendments and judicial interpretation.

2. Section 94 CPC – Supplemental Proceedings & Link with Order 38

Before going deeper into Order 38 Rule 5, it is important to understand Section 94 CPC, which is the general enabling provision for “supplemental proceedings”.

Section 94 is the policy gateway: it declares that courts may use supplemental powers “to prevent the ends of justice from being defeated”. The detailed “how” is then provided in Orders:

• Order 38 – arrest and attachment before judgment (clause (a) and (b));
• Order 39 – temporary injunctions (clause (c));
• Order 40 – appointment of receiver (clause (d));
• Other rules and inherent powers cover clause (e).

Attachment before judgment under Order 38 Rule 5 is thus one of several supplemental proceedings designed to protect the effectiveness of the final decree.

3. Object and Scope of Order 38 Rule 5 CPC

The object of attachment before judgment is:

To prevent a defendant from defeating the realization of a decree that may ultimately be passed, by disposing of or removing his property with the intention of obstructing or delaying execution.

Important points about its scope:

• It is a preventive measure, not a punishment.
• It does not decide the merits of the claim; it only secures assets.
• It is extraordinary and drastic, to be used sparingly and strictly in accordance with the rule.
• It is not meant to guarantee that there will always be sufficient property within jurisdiction to satisfy the decree, nor to convert an unsecured debt into a secured debt.

4. Essential Ingredients & Conditions Precedent

Courts in Pakistan, and India consistently insist on certain conditions precedent before exercising powers under Order 38 Rule 5:

4.1 Pending Civil Suit

There must be a properly instituted civil suit. Order 38 Rule 5 is ancillary and incidental to the main proceedings; it cannot be used in isolation.

4.2 Prima Facie Case & Bona Fide Claim

The plaintiff must demonstrate a prima facie bona fide claim, not a speculative or exaggerated demand. Pakistani courts, including the Sindh High Court, have repeatedly stated that the court should first be satisfied that there is a reasonable chance of a decree being passed before even considering attachment.

4.3 Intention to Obstruct or Delay Execution

This is the core ingredient:

• Defendant must be shown, through concrete facts, to be acting with the intention of obstructing or delaying execution of a possible decree;
• Mere financial difficulty, commercial loss or routine dealing with property is not sufficient;
• There must be additional circumstances indicating a plan to put assets beyond reach (e.g. benami transfers, gross undervalue sales, sudden removal of machinery abroad).

4.4 Specific Property & Approximate Value

In practice, the plaintiff is expected to:

• Identify the specific property sought to be attached; and
• State its estimated value, to assist the court in ensuring proportionality.

This ties in with the duty of proportionality and prevents indefinite, roving attachments.

5. Powers and Duties of Courts under Order 38 Rule 5

5.1 Powers

Under Order 38 Rule 5 read with Section 94(b), the court may:

• Call upon the defendant to furnish security in a specified sum;
• Direct the defendant to produce property and place it at the disposal of the court;
• Order the defendant to show cause why he should not furnish security; and
• In appropriate cases, order a conditional attachment of the property mentioned in the application.

These powers are supplemented by Order 38 Rules 6–9, which regulate making the attachment absolute, variation, and withdrawal when the suit is dismissed or security is furnished.

6. Key Pakistani Case Law on Order 38 Rule 5 CPC

The Pakistani case law you have provided beautifully illustrates these duties. Some key precedents are:

• PLD 2020 Karachi 385 – Sui Southern Gas Company Ltd v. Karachi Electric Supply Company Ltd (Sindh High Court)
  The court stressed that an order under Order 38 Rule 5 cannot be passed unless the pre-conditions in the rule are truly fulfilled. The judge must be satisfied, on material placed before the court, that the defendant, with a view to obstruct or delay execution, is selling or disposing of property. Generic or formula-type allegations are not enough to trigger such a harsh remedy.
  
  In the discussion read together with Order 7 Rule 2 and Order 38 Rules 1 & 5, the High Court emphasised that attachment before judgment is a very severe order. The plaintiff must present a prima facie, unimpeachable claim, and the court must have good reason to believe that, unless it intervenes, the defendant may remove itself or its assets from the court’s territorial jurisdiction with a clear intent to avoid any decree. On the facts, the court declined to attach K-Electric’s property and dismissed the application.
• 2019 YLR 345 Karachi – KASB Corporation Ltd v. Bank Islami Pakistan Ltd
  The Sindh High Court explained that the object and scope of Order 38 Rules 1 & 5 is not to guarantee the plaintiff that assets will always be available to satisfy a decree. Instead, the provision is aimed at preventing a defendant from abusing the court’s process to defeat or obstruct execution. Attachment before judgment is thus about abuse prevention, not asset-insurance for plaintiffs.
• 2017 CLC 1322 Karachi – Tuwairqi Steel Mills Ltd v. IIIrd Senior Civil Judge (South), Karachi
  In a money recovery suit where trial court had ordered attachment of the petitioner’s bank accounts, the High Court held that before using Order 38 Rule 5, the court must first be satisfied that:
  • There is a real chance that a decree will be passed against the defendant; and
  • The plaintiff has established a prima facie case on the basis of pleadings and documents.
  If this first stage is not crossed, the court should not even move to the next stage of considering whether the plaintiff’s interests need protection by attaching property. The High Court upheld the order in that case because the trial court had issued notice, heard the defendant, and recorded its satisfaction in line with these principles.
• 2016 CLD 1202 Karachi – Bank Alfalah Ltd v. Callmate Telips Telecom Ltd
  The Sindh High Court described the court’s jurisdiction to attach property before judgment as extraordinary and to be exercised strictly in accordance with time-tested procedure. The proper course is to direct the defendant to appear and show cause why he should not furnish security sufficient to satisfy the decree and to place such security at the court’s disposal.
  
  On the substantive side (also under section 19 of the Financial Institutions law), the court clarified that Order 38 Rule 5 is not intended to guarantee a bank the availability of particular assets for recovery. The plaintiff must still prove that the defendant intends to dispose of property to obstruct or defeat the likely decree. Since the bank already had decrees against mortgagors but chose not to proceed against that security and instead sought attachment of another property not charged in its favour, the High Court refused attachment, holding that the requisite ingredients of “intent” were not proved.
• 2016 CLC 296 – Supreme Court of Azad Jammu & Kashmir – Chief Engineer SFD&KF v. Recent Construction Co.
  The apex court in AJK upheld a trial court’s direction to furnish security under Order 38 Rule 5 where, on the basis of the plaint, affidavit, and record, the court was satisfied that if a decree were eventually passed, recovery would be difficult. The decision confirms that when the risk of futile execution is established on credible material, an order to furnish security is legally justified.
• PLD 2011 605 Karachi – Muhammad Ather Hafeez Khan v. Ssangyong & Usmani JV
  This is a leading judgment on both procedure and principles:
  • The court held that before directing the defendant to furnish security, the court must first call upon him to show cause. Only if he fails to show cause or to furnish security can the court proceed to make a direction under Order 38 Rule 5.
  • The judgment also draws a careful distinction between Order 38 Rule 5 and Order 39 Rule 1(b) (discussed separately below).
  • It reiterates that attachment before judgment is preventive, not punitive, and that it curtails the defendant’s undoubted right to deal with his property as he thinks fit. Therefore, the plaintiff must make out a clear case showing that all ingredients of Order 38 Rule 5 are satisfied; in case of doubt, the benefit goes to the defendant.
  • The “intent” to obstruct or delay execution must appear with reasonable clarity from objectively considered facts; otherwise, an order of attachment is inappropriate. The object is not to guarantee assets within jurisdiction for the plaintiff, but to prevent misuse of the court’s process.
• PLD 2011 542 Karachi – Asif S. Sajan v. Rehan Associates
  The Sindh High Court described Order 38 as having a penal character in its effect and stressed that courts must be particularly vigilant and alive to the seriousness of the remedy. Where attachment is sought on the basis of distant, speculative apprehensions without supporting evidence, courts should refuse such preventive orders. The judgment again emphasises that an order under Order 38 Rule 5 is preventive in nature, not a punishment, and should be used with great caution.
• PLD 1975 Lah 17 – Virasat Ullah & another v. United Bank Ltd., Lahore
  The Lahore High Court described Order 38 Rule 5 as “quite drastic”, noting that if an application under this provision is allowed at the initial stage, the defendant may suffer serious disadvantage. The court held that:
  • The court must be fully satisfied, on proper material on record, before invoking the rule;
  • An application and affidavit that do not contain specific allegations of alienation or intended alienation of property with the relevant intent cannot justify an order under the rule;
  • Mere attempts to dispose of property are not enough unless the intention to obstruct execution is proved; and
  • Vague allegations are insufficient; the court must be satisfied that the transfer is planned after the institution of the suit with the intention to defeat execution.
  This case is still frequently cited on the need for positive, concrete evidence before granting attachment before judgment.

7. Leading Indian Authorities on Order 38 Rule 5 CPC

Indian courts have also developed a rich jurisprudence on attachment before judgment, much of which is equally persuasive in Pakistan and Bangladesh due to the common CPC heritage.

• Raman Tech & Process Engg. Co. & Anr v. Solanki Traders, (2008) 2 SCC 302 (Supreme Court of India)
  The Supreme Court described attachment before judgment as a “drastic and extraordinary power” that must be used sparingly. Key points:
  • Attachment before judgment is part of supplemental proceedings under Section 94 CPC, meant to prevent the ends of justice from being defeated.
  • Before exercising power under Order 38 Rule 5, the court should be satisfied that there is a reasonable chance of a decree being passed; in other words, the plaintiff must show a bona fide, prima facie valid claim.
  • In addition, the plaintiff must show that the defendant is about to remove or dispose of the whole or part of his property with the intention of obstructing or delaying execution.
  • The Court specifically warned that the provision should not be used to convert an unsecured debt into a secured debt or as a coercive tool to force settlement.
• Premraj Mundra v. Md. Maneck Gazi (Calcutta High Court)
  This classic decision laid down detailed guidelines such as:
  • Orders under Order 38 Rules 5 and 6 can only be made if the specific circumstances mentioned in the rule are proved;
  • Affidavits must be properly verified, not vague, and must disclose the sources of information and grounds of belief;
  • Simple proof that the defendant has transferred property is not enough; there must be additional circumstances showing the transfer is intended to delay or defeat the plaintiff’s claim;
  • Benami transfers and sales at gross undervalue are significant indicators, but the court must rely on credible, not vague, evidence.

These Indian authorities closely align with the Pakistani precedents discussed above and reflect the same cautious approach towards this extraordinary remedy.

8. Order 38 Rule 5 vs Order 39 Rule 1(b) CPC

The decision in PLD 2011 605 Karachi (Muhammad Ather Hafeez Khan) also explains the difference between Order 38 Rule 5 and Order 39 Rule 1(b):

• Order 38 Rule 5
  Focuses on securing property to prevent obstruction or delay in execution of a future decree. The concern is the effectiveness of the decree in that particular suit.
• Order 39 Rule 1(b)
  Authorises temporary injunction where the defendant threatens or intends to remove or dispose of property with a view to defraud his creditors. The focus is broader – on preventing fraud on creditors, not specifically on protecting execution of the particular decree.

The material sufficient for an injunction under Order 39 Rule 1(b) may not automatically justify attachment before judgment under Order 38 Rule 5, and vice versa. Courts must carefully apply the distinct tests for each provision.

9. Step-by-Step Procedure for Attachment Before Judgment

1. Filing of Suit
   A civil suit (often for money recovery) is filed.
2. Application under Order 38 Rule 5 with Affidavit
   Plaintiff files an application accompanied by a properly verified affidavit setting out:
   • Nature and amount of claim;
   • Details of the defendant’s property;
   • Specific facts showing intention to obstruct or delay execution (e.g. impending sale, transfer abroad, undervalue transactions).
3. Prima Facie Scrutiny by Court
   Court examines whether there is:
   • A bona fide prima facie case in favour of the plaintiff; and
   • Concrete material suggesting defendant’s intent to obstruct execution.
4. Notice to Show Cause / Furnish Security
   As a general rule, the court:
   • Issues notice calling upon the defendant to show cause why he should not furnish security; and/or
   • Directs him to furnish security or produce property.
5. Conditional Attachment (in urgent cases)
   Where there is a credible risk that delay will defeat the remedy, the court may at once order conditional attachment while issuing notice. This must be justified by recorded reasons.
6. Hearing & Final Order
   After hearing both sides, the court may:
   • Confirm attachment to the extent necessary;
   • Replace attachment with security of sufficient value; or
   • Dismiss the application and vacate any interim attachment.
7. Subsequent Variation / Withdrawal
   Under Rules 6–9, attachment can be modified, made absolute, or withdrawn if:
   • Security is furnished;
   • The suit is dismissed or decreed and satisfied; or
   • Circumstances materially change.

10. What Property Can Be Attached Before Judgment?

In general, any property that is attachable in execution can be attached before judgment:

• Immovable property: land, houses, shops, flats;
• Movables: vehicles, machinery, stock-in-trade;
• Actionable claims, bank accounts, shares, debts, etc.

The usual statutory exemptions still apply (e.g. certain wages, tools of trade, pensions, and other non-attachable items under CPC and special statutes). Small Cause Courts are generally restricted from attaching immovable property before judgment.

11. Practical Illustrations & Hypothetical Examples

Example 1 – Exporter Shifting Assets Abroad (Attachment Appropriate)

A textile exporter in Karachi is sued for a large recovery. Shortly after the suit is filed:

• He executes a sale agreement for his only factory in favour of a close relative for a suspiciously low price; and
• He starts shipping key machinery and stock to a newly incorporated foreign entity.

The plaintiff produces copies of the sale agreement and shipping documents. Here, the court may reasonably infer an intention to defeat execution and, applying the principles from PLD 2020 Karachi 385, PLD 1975 Lah 17 and Raman Tech, may:

• Direct the defendant to furnish security equal to the claim; and
• Order conditional attachment of the factory and machinery pending decision.

Example 2 – Real Estate Developer Off-loading Flats (Attachment Appropriate)

An Indian developer faces suits by flat-purchasers. During the suit, he starts selling the remaining flats at undervalue and transfers sale proceeds to accounts outside the state. Purchasers obtain sale deeds and bank statements.

On these facts, applying Premraj Mundra and Raman Tech, a court can justifiably conclude that there is a real danger of obstruction of execution and may attach some unsold flats or freeze specific accounts up to the claim value.

Example 3 – Normal Commercial Dealings (Attachment Not Appropriate)

A trader in Dhaka is sued for a commercial debt. He continues his usual business: buying and selling inventory, paying suppliers, honouring bank facilities. There is no evidence of benami transfers, undervalue sales or shifting assets abroad.

Here, on the reasoning in KASB v. Bank Islami and Virasat Ullah, a court should refuse attachment; there is no proof of intent to obstruct execution, only normal commerce.

12. Practical Guidance for Law Students, Lawyers & Judges

13. Conclusion

Attachment before judgment under Order 38 Rule 5 CPC, read with Section 94 CPC, is an indispensable part of civil procedure in Pakistan, India and Bangladesh. It exists to ensure that a decree, once obtained, is not rendered meaningless by a defendant’s manipulative disposal of assets.

At the same time, the rich body of case law from Sindh, Lahore, AJK and the Indian Supreme Court warns that this is a drastic and extraordinary power. Courts must jealously guard against its misuse – by demanding specific facts, clear proof of intent, and strict adherence to procedure. If that balance is maintained, attachment before judgment remains a powerful but fair instrument for preventing the ends of justice from being defeated.

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14. Frequently Asked Questions about Order 38 Rule 5 CPC