Orders in Aid of Domestic proceedings

Orders in Aid of Domestic proceedings

Under what circumstances can local courts grant an attachment order to preserve assets pending judgment or final order? Are there any alternative remedies?

Availability

The parties to a suit can seek an attachment order from the court under Order 38 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘the Code’), if the plaintiff feels that the realisation of the decree passed against the defendant would be difficult apprehending the defendant would dispose of an impugned property, to prevent the execution of the decree passed against him. (See, Sardar Govindrao Mahadik V. Devi Sahai AIR 1982 SC 989).

Attachment orders are commonly issued by the courts in India. Under Order 38 Rule 13 of the Code, all courts of appropriate jurisdiction can issue orders of attachment other than courts of small causes. The question of fact must be proved to the satisfaction of the Court to issue an order of attachment.

The Court had deduced certain principles in regard to passing of an order of attachment in the case of Premraj Mundra V. Mohd. Maneck Gazi AIR 1951 Cal 156.  The Hon’ble Court held that mere allegation of threat of disposal is not sufficient and that particulars of the information must be stated. In addition, it is to be proved beyond doubt to the Court the existence of circumstances of transfer or removal of property from court’s jurisdiction, and that the transfer is with the intention to delay or defeat the execution of the decree issued against the defendant.