Code of Civil Procedure, 1908 | Order 38 Rule 7

Order XXXVIII Rule 7 CPC - Mode of Making Attachment Before Judgment

Order XXXVIII Rule 7 of the Code of Civil Procedure, 1908 (CPC) prescribes the method for carrying out an attachment before judgment. Unless a different procedure is expressly provided, the attachment follows the procedure used for attachment of property in execution of a decree.

Order XXXVIII Rule 7 CPC - Statutory text

Save as otherwise expressly provided, the attachment shall be made in the manner provided for the attachment of property in execution of a decree.

Meaning and scope of Rule 7

Rule 7 is a procedural provision. It does not independently authorise attachment. The court must first have a legal basis for attachment before judgment, ordinarily under Order XXXVIII Rule 5 or Order XXXVIII Rule 6. Once attachment is ordered, Rule 7 generally adopts the methods prescribed for attachment in execution proceedings.

The opening words, "Save as otherwise expressly provided", mean that a specific contrary provision takes precedence over the ordinary execution-attachment procedure.

How attachment is carried out

The applicable method depends on the nature of the property and the court's order. Order XXI of the CPC contains procedures for attaching different classes of property, including movable assets, debts and immovable property.

Movable property: Order XXI Rule 43 generally addresses attachment of movable property in the judgment-debtor's possession by actual seizure, subject to exceptions and other applicable rules.
Debts and other specified property: Order XXI Rule 46 provides for attachment of certain debts, shares and movable property not in the judgment-debtor's possession through a prohibitory order.
Immovable property: Order XXI Rule 54 generally requires an order prohibiting transfer or charging of the property, with prescribed proclamation and affixation requirements.

These provisions must be applied with the necessary changes appropriate to a pre-judgment attachment. The precise process may depend on the type of property, applicable amendments and the terms of the judicial order.

Conditions and safeguards

Attachment before judgment is an exceptional protective measure, not a routine means of securing every money claim. A plaintiff ordinarily needs to establish the conditions under Order XXXVIII Rule 5, including the relevant intent to obstruct or delay execution of a possible decree. The court should not treat mere ownership, transfer or sale of property as sufficient by itself.

Order XXXVIII Rule 5(4) states that an attachment made without compliance with Rule 5(1) is void. Rule 6(2) provides for withdrawal of attachment or another appropriate order where the defendant shows cause or furnishes the required security.

Order XXXVIII Rule 5: Security for production of property and conditional attachment before judgment.
Order XXXVIII Rule 6: Attachment where cause is not shown or security is not furnished.
Order XXXVIII Rule 8: Adjudication of claims to property attached before judgment.
Order XXXVIII Rule 9: Removal of attachment when security is furnished or the suit is dismissed.
Order XXXVIII Rule 10: Protection of rights of strangers and certain decree-holder rights.
Order XXI Rules 43, 46 and 54: Illustrative procedures for attaching particular types of property.

Frequently asked questions

Does Rule 7 itself permit attachment before judgment?

No. It describes the method of making an attachment that is otherwise lawfully ordered.

Is attachment before judgment the same as execution after decree?

No. Attachment before judgment protects the potential enforceability of a future decree; execution ordinarily follows a decree. Rule 7 borrows attachment methods, not the entire substantive basis for execution.

Can a third party object to attachment?

Yes, claims concerning property attached before judgment may be adjudicated under Order XXXVIII Rule 8, read with applicable provisions of the CPC.

Official statutory reference

Consult the Code of Civil Procedure, 1908 on India Code for the central enactment and its First Schedule. Check relevant State amendments and binding court decisions for the particular proceeding.

This article provides general legal information. The precise procedure depends on the court order, the property and applicable law.