Submission for Attachment Before Judgment | Order 38 rule 5 of CPC
May It Please Your Honor
This is an application under Order 38 rule 5 of Code of Civil Procedure for attachment before the judgment.
Your Honor, the original suit was filed for realization of 58,55,000/- taka as a money suit.
In this particular suit the plaintiff is “Mahbubur Rahman” and the defendant is “Imarat Real Estate (pvt.) Ltd”
And I am representing the Plaintiff.
The property for which the dispute has raised is situated at:
District- Dhaka, Police Station- Dhanmondi, C.S Khatain No. 10, C.S Plot No. 31, S.A. Khatian No. 71, S.A Plot No. 31, comprising an area of 15.04 Katha of land and the building thereon of which Flat No. A. 5 on the 5th floor
Your honor the brief fact of the suit is:
The plaintiff paid taka 50,00,000 (Fifty Lac) to the defendant to purchase of the mentioned flat and an agreement was executed the same between the parties.
However, the defendant did not construct and deliver the possession of the flat as stipulated in the contract. Recently, the defendant resumed construction of the said building and is selling the flats to other intending buyers, with malafide intention.
Hence for this reason, the instant prayer is filed.
Your Honor this is a prayer under section 151, to use Your Honor’s Inherent Power as there is no adequate and specific provision in the Code of Civil Procedure -1908
Your Honor, in order to get an order of Attachment before Judgment there are some legal requirements to be fulfilled.
With Your Honors permission I would like to show how this suit meets those requirements.
First of all,
The defendant had not executed the sale, even long after the scheduled date. Nether he satisfied the claim of plaintiff, nor furnish any security. The defendant has no intention to handover the flat whatsoever and therefore a civil suit is pending on this matter. (Which is the first legal requirement under order 35 rule 05 (1))
On the other hand, it is evident that the defendant has resumed the construction and selling the flats to new buyers, therefore he is about to dispose the property and the defendant is doing so to defraud the plaintiff. (Which fulfills the 2nd legal requirement under Order 38, Rule 05 (1) (a) )
After that, the plaintiff has been confirmed from a reliable source that defendant is doing such activities to cause obstructions and to delay in the execution of any decree that may be passed against the defendant after the judgment. (as required under order 38 rule 05 (1) )
Thereafter, the plaintiff has made this application by an affidavit for attachment before the judgment (as per Order 38 rule 05 (1) )
Thus this prayer has fulfilled all the legal requirments.
Your Honor, this suit is in a situation, that if Your Hounr don’t pass an order of attachment before the judgment; the defendant will sell the disputed flat to the new buyers.
and thus the degree if passed shall be useless and the yeas long process would be futile at the end.
At this point, it is very important to attach the disputed property before the judgment, so that the plaintiff get assurance of the further remedy.
Your Honor, At this point I would like to refer citation:
“The sole object behind the order levying attachment to give assurance to the plaintiff that his decree, if made will be satisfied.”
- From the case Sardar Govindrao V. Devi Sahai, AIR 1982 SC 218
In this circumstances
Wherefore it is prayed your honour would be pleased enough to direct the defendants to place the property at the disposal of the learned court or to furnish such security as will be sufficient to satisfy the decree of the learned court that may be passed in favour of the plaintiff or in default of the same, attach the property as indicated in the Schedule by an order of attachment by the learned court
And for which the petitioner shall ever pray.
That’s all my submission your honour, unless your honour has any quarries.
Sir,order 38 rule 5 is applicable to retirement benefits and family pension