The court emphasizes the need for strict compliance with the provisions of Order 38 Rule 5 of the Code of Civil Procedure when considering an application for attachment of property before judgment. The court highlights the importance of the affidavit and the requirement for the court to be satisfied with the defendant's intention to obstruct or delay the execution of the decree and disposal or removal of the property. Failure to comply with these conditions renders the attachment order void.

P.K. Roy, J.

The defendants of Money Suit No.5 of 2001 of the Court of learned Civil Judge (Senior Division), 3rd Court at Alipore have assailed the order dated 16th July, 2001 passed by the said Court whereby and whereunder the application filed by the plaintiff under Order 38 Rule 5 of the Code of Civil Procedure for attachment of the defendants' property before judgment was allowed upon directing attachment of Schedule 'D' property before judgment and order restraining the defendants from selling, transferring or alienating of the properties mentioned in the schedule of the plaint was passed. The learned Advocate for the petitioners Mr. Sudhis Dasgupta, Senior Counsel submits that condition precedent of applicability of such provision on the facts situation of the matter is absent. It is further submitted that in the application there was no materials as would vest jurisdiction upon the learned Court below to decide the said issue inasmuch as the paragraph 38 being the only paragraph, which dealt with the conditions under the said provision is vague as sources were not disclosed and informations also were not properly made and in that view of the matter there was no material before the Court to exercise the power under the said provision of Order 38 Rule 5 of the Code of Civil Procedure. The learned Advocate for the petitioners further submits that the right to enjoy the property of the defendants has been restrained without any sufficient materials and mere filing of the suit in the nature of money suit ipso facto will not empower the Court to exercise such jurisdiction. Reliance has been placed to the judgment in the case of Premraj Mundra vs. Md. Maneck Gazi, reported in AIR (38) 1951 Cal. 156 and the judgment in the case of Palghar Rolling Mills Pvt. Ltd. vs. Visvesvaraya Iron and Steel Ltd., reported in AIR 1985 Karnataka 282. It is further submitted that in terms of the provision of Order 38 Rule 5 of the Code of Civil Procedure particularly under sub-rule (4) non-compliance of any of the provision under sub-rule (1) would make the attachment as void and in view of incorporation of such provision after amendment of the Civil Procedure Code in the year 1976, the Court is required to consider the aspect strictly and to pass the order upon being satisfied with all the conditions as stipulated thereto in sub-rule (1) of Order 38 Rule 5 of the Code of Civil Procedure. The learned Advocate for the opposite party herein that the plaintiff of the suit, Mr. Bikash Ranjan Bhattacharya, Senior Advocate submits that the conduct of the defendants as stated not only in the plaint but also in the application with proper affidavit in connection with the application under Order 38 Rule 5 of the Code of Civil Procedure clearly created a situation before the learned Court below to exercise the power and jurisdiction under the said provision. It is contended further that since there were materials before the Court that the defendants would dispose of the property and by this process there was positive averment that the plaintiff would not be able to enjoy the fruit of the decree. The learned Court below was right in passing the order of attachment. The learned Advocate for the opposite party further submits that on the additional circumstances before the Court namely, the conduct of the defendants as vividly described in the plaint and by affidavit as mentioned in the plaint, it was a fit case to exercise such power. The learned Advocate of the respondents further submits that contingency to realise the decretal amount is also a condition to be considered by the Court while adjudicating the matter and in that view of the matter the order impugned is justified. Reliance has been made in paragraphs 5 and 8 of the judgment in the case of Premraj Mundra vs. Md. Maneck Gazi, reported in AIR (38) 1951 Cal. 156, and also relevant object and purpose of the provision in the statue. The judgment in the case of Sardar Govindrao Mehdik, repor