Code of Civil Procedure, 1908 | Order XXXVIII

Order XXXVIII Rule 11A CPC: Provisions Applicable to Attachment

Order 38 Rule 11A of the Code of Civil Procedure, 1908 explains how execution-attachment provisions apply when attachment before judgment continues after a decree. It also clarifies what happens to attachment if a suit dismissed for default is subsequently restored.

Text of Order XXXVIII Rule 11A CPC

(1) The provisions of this Code applicable to an attachment made in execution of a decree shall, so far as may be, apply to an attachment made before judgment which continues after the judgment by virtue of the provisions of rule 11.

(2) An attachment made before judgment in a suit which is dismissed for default shall not become revived merely by reason of the fact that the order for the dismissal of the suit for default has been set aside and the suit has been restored.

The source webpage uses "so for as may be" in sub-rule (1); the wording above corrects that apparent typographical error to "so far as may be". Check the applicable official text and any local amendments before relying on the provision in proceedings.

Meaning and legal effect

Sub-rule (1): Attachment continuing after judgment

Where property was validly attached before judgment and a decree is later passed in favour of the plaintiff, Order XXXVIII Rule 11 dispenses with the need to apply for re-attachment when seeking execution. Rule 11A(1) makes the Code's provisions governing attachment in execution applicable to the continuing attachment so far as may be.

This does not itself order a sale or eliminate the need to follow execution procedure. The decree-holder ordinarily must seek execution and comply with the relevant provisions of Order XXI CPC, including those governing the type of property, objections and sale, where applicable.

Sub-rule (2): Dismissal for default and later restoration

If a suit is dismissed for default, an attachment before judgment in that suit does not automatically revive merely because the dismissal is set aside and the suit is restored. Restoration of the proceedings and revival of the earlier attachment are distinct matters.

If protection of property is still needed after restoration, a party may seek appropriate fresh relief, supported by the necessary facts, under the applicable provisions of Order XXXVIII. Whether relief is granted depends on the statutory requirements and the court's decision.

Important terms explained

Attachment before judgment: A provisional court process affecting specified property before a decree, intended in appropriate cases to safeguard the effectiveness of a possible decree; see Order XXXVIII Rule 5 and Rule 6.
Decree: A formal expression of an adjudication conclusively determining the rights of parties concerning matters in controversy in the suit, subject to the qualifications in Section 2(2) CPC.
Execution: The court process for enforcing a decree, principally regulated by Sections 36 to 74 and Order XXI CPC.
Dismissal for default: Dismissal arising from a party's failure to take a required procedural step or appear, as governed by the relevant CPC provision, including Order IX where applicable.
Restoration: Setting aside a dismissal and reinstating the suit in accordance with the applicable procedure; restoration alone does not revive attachment under Rule 11A(2).

Practical illustrations

Example 1: A court attaches specified property before judgment. The plaintiff subsequently obtains a money decree and applies for execution. Rule 11 read with Rule 11A(1) ordinarily avoids a second attachment of the same property while making relevant execution-attachment provisions applicable.

Example 2: A suit with an attachment before judgment is dismissed for default. The court later restores the suit. Under Rule 11A(2), the old attachment is not revived simply because the suit is restored.

Order XXXVIII Rule 7: Mode of making attachment.
Order XXXVIII Rule 8: Claims to property attached before judgment.
Order XXXVIII Rule 9: Withdrawal of attachment when security is furnished or the suit is dismissed.
Order XXXVIII Rule 10: Protection of prior rights of non-parties and decree-holders.
Order XXI CPC: Execution proceedings, including attachment and sale, subject to the Code and applicable amendments.

Frequently asked questions

Is re-attachment required after a decree?

Ordinarily not where the property remains attached under Order XXXVIII and a decree is passed in favour of the plaintiff; see Rule 11. The decree must still be executed according to law.

Does restoration of a dismissed suit revive the previous attachment?

No. Rule 11A(2) expressly provides that an attachment before judgment does not revive merely because a dismissal for default is set aside and the suit restored.

Can a party request attachment again after restoration?

An appropriate application may be made if the statutory conditions are satisfied. Fresh attachment is not automatic and remains subject to judicial scrutiny.

Official legislation and reference

Consult the India Code official legislation portal for the Code of Civil Procedure, 1908 (Act 5 of 1908), and check any applicable state amendments and current judicial directions.

Legal information: This article is a general explanation of the central CPC provision and not a substitute for case-specific legal advice. Local amendments and procedural rules may affect particular proceedings.