DISTINCTION BETWEEN TEMPORARY INJUNCTION AND ATTACHMENT BEFORE THE JUDGEMENT

INTRODUCTION

Innumerable provisional orders are enumerated in the Code of Civil Procedure, 1908 (CPC), which are known as temporary orders, made during the pendency of the litigation to protect the subject matter of the suit. Order 38, Rules 5 to 13 specifically pertaining to the attachment before judgement. In unusual circumstances, the court may impose attachment before judgement, similar to arrest before judgement. Similar in nature to these orders is the order of injunction. There is quite a similarity between these two orders and both are sanctioned during the pendency of the suit. The injunction is granted is to uphold and alter the doctrine of ‘Status quo’ and refraining the parties from doing anything on the property, whereas the attachment of property before judgement is done for averting the defendant’s attempt to defeat the decree’s realization which is passed in the favour of the plaintiff.

TEMPORARY INJUNCTION

An Injunction is a remedy which is a judicial process that obliges a party to refrain from doing off to do a certain act or thing. A temporary injunction is a provisional relief that aims to protect the subject matter in the existing condition when the Defendant is about to injure the Plaintiff’s property or threatens to dispossess the property or creates a thirty-party interest in the property, the Court may grant a temporary injunction to restrain the Defendant from doing so or make other orders to prevent the property from getting disposed of or restrain the causing of any injure to the property of the plaintiff.[1] A temporary injunction is an interim remedy sought to keep the subject matter in its current state, and it can be granted on an ex parte application at any point during the suit’s stay. Its goal is to keep the plaintiff’s rights from being suspended. Section 94 of the CPC[2] allows a supplemental action for Plaintiff to prohibit this right, whereby the Court may grant a temporary injunction or make other interlocutory orders under Section 94 (c) and (e) of the Code of Civil Procedure.[3] These are interim injunctions because their validity is limited to the court’s next order or the case’s final decision or decree.[4]

ATTACHMENT OF PROPERTY BEFORE JUDGEMENT

Attachment of property before judgement is done with the primary goal of preventing the defendant from attempting to thwart the plaintiff’s decree from being carried out. The sole purpose of such an order of attachment before judgment is to assure the plaintiff that his decree if made, will be fulfilled. It is, in some way, a guarantee against the decree becoming infructuous for the availability of property from which the plaintiff can satisfy the decree.[5]

PRABHA SURANA V. JAIDEEP HALWASIYA: Establishing the Distinction

Lately, the Calcutta High Court explained the nature of relief between temporary injunction under Order XXXIX and for order of attachment before judgement under Order XXXVIII Rule 5 of CPC pf 1908.

Even if these provisions safeguard petitioners by preserving disputed property, their applicability depends on the stage of the proceedings and the type of the property, according to Justice Moushumi Bhattacharya.[6]

In this suit, the petitioner had given the respondent a loan of Rs 7.5 crore at a rate of 15% per year. However, the respondent refused to accept the debt, resulting in the current lawsuit, and the respondent asked the Court for a temporary injunction.

According to the respondent’s counsel, the instant request was in the nature of an application for attachment under CPC Order XXXVIII Rule 5. It should not be permitted until the respondent files his or her affidavit. It was further maintained that no case had been made out for the property to be sold or removed from the Court’s jurisdiction, as required under Order XXXVIII Rule 5 of the CPC.

The petitioner was not seeking an order for attachment before judgement, as required by Order XXXVIII Rule 5 of the CPC; rather, the petitioner was seeking a temporary injunction under Order XXXIX Rule 1 of the CPC to preclude alienation of the property in issue.

According to the Court, a review of the documents reveals that the respondents have acknowledged the indebtedness.

They clarified the distinction between a temporary injunction under Order XXXIX Rule 1 and attachment before judgement under Order XXXVIII Rule 5 after going over the parties’ arguments. If there is imminent harm to the disputed property, the Court provides a provisional injunction to the petitioner under Order XXXIX Rule 1. Whereas Order XXXVIII Rule 5, on the other hand, applies at a later stage when the petitioner tries to execute a decree.

Under Order XXXIX Rule 1, the property sought to be preserved is ‘property in dispute in a suit’, whereas, it is the respondent’s property under Order XXXVIII Rule 5 – the words used are ‘his property’ following specific reference to ‘…the respondent, with intent to obstruct or delay…’. The distinction reinforces the need to preserve the suit property till final orders are passed in the former and to secure the petitioner for facilitating the execution of a decree in the latter. Although the terms ‘order’ and ‘decree’ can be interchangeably used depending on the nature of the application, the thrust of the two provisions, read together, is saving the suit property till the right of the petitioner is established to proceed with the suit and to save the petitioner from the decree – or the possibility thereof – being frustrated once the suit nears culmination.” The order read.

But, in this case, the Bench noted this and concluded that the petitioner has shown “a prima facie case” and that irreparable harm would result if the Court did not intervene. As a result, the Court issued a temporary interdiction in favour of the petitioner.[7]

Having found that the petitioner has made out a satisfactory case under Order XXXIX Rule 1 of The Code of Civil Procedure, there shall be an order restraining the respondent from dealing with or disposing of, alienating or encumbering any of his immovable assets and properties without leave of the Court until the matter is finally heard out on affidavits or until further orders are passed at the instance of any of the parties before the Court,” the order read.[8]

CONCLUSION

From the foregoing reasoning, it gives the inkling that the goal of ordering attachment before judgement is to prevent the defendant from attempting to avoid receiving the benefits of the plaintiff’s decree. Under Order 38 Rule 5, the code enumerates provisions relating to the attachment of property before judgement. Whereas it can be ruled that a party cannot request a temporary injunction as a matter of right, and the Court cannot deny it arbitrarily. The injunction is an equitable remedy that requires the rule “he who seeks equity must perform equity” to be applied. The Court has complete discretion in granting or denying an injunction. The concepts described above demonstrate the Court’s discretion, which is dependent on the facts and circumstances of each case. Regardless of how compelling the applicant’s cause is, the relief cannot be sought as a matter of right. As a result, the power to issue an injunction must be handled with extreme caution, alertness, and prudence.

Author(s) Name: Gurrashmeet Singh (Student, Dr. B.R. Ambedkar National Law University, Sonipat)

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References:

[1] Rai D, ‘Injunction: All You Need To Know About It – Ipleaders’ (iPleaders, 2021) <https://blog.ipleaders.in/injunction-all-you-need-to-know-about-it/> accessed 7 July 2021

[2] Code of Civil Procedure, 1908, s. 94

[3] Temporary Injunction And How Is It Different From Stay Order’ (Law Times Journal, 2021) <https://lawtimesjournal.in/temporary-injunction-and-how-is-it-different-from-stay-order/> accessed 7 July 2021

[4] Verma A, ‘Temporary Injunction – A Right Or Equitable Relief – Ipleaders’ (iPleaders, 2021) <https://blog.ipleaders.in/temporary-injunction-right-equitable-relief/> accessed 7 July 2021

[5] Vatsal A, ‘Attachment Of The Property Before Judgement’ (2021) <https://blog.ipleaders.in/attachment-of-the-property-before-judgement/> accessed 7 July 2021

[6] ‘What Is The Difference Between Attachment Before Judgement And Temporary Injunction Under CPC?’ (Law Trend, 2021) <https://lawtrend.in/what-is-the-difference-between-attachment-before-judgement-and-temporary-injunction-under-cpc/> accessed 7 July 2021

[7] ‘Distinction Between ‘Temporary Injunction’ And “Attachment Before Judgement” Under The CPC: Calcutta High Court Explains’ (Livelaw, 2021) <https://www.livelaw.in/news-updates/temporary-injunction-and-attachment-before-judgement-cpc-calcutta-high-court-176384> accessed 7 July 2021

[8] Order Sheet GA 2 Of 2021 CS 52 Of 2021 in The High Court At Calcutta, Ordinary Original Civil Jurisdiction, Original Side, Prabha Surana Versus Jaideep Halwasiya