Important Points:
The object of issuing attachment before judgment is to preserve the assets of the respondent and consequently to prevent the execution of prospective decree that may be passed by the court in the proceeding from being defeated. Before the court issuing an order of attachment, it must be satisfied that the respondent with the intent to obstruct or delay the execution of the decree is about to remove any part of his property from the jurisdictional limits of the court or to dispose of his assets.

T.V. ANILKUMAR, J.

The learned counsel for the appellant was heard on admission.

2. The appellant is the 3rd respondent in O.P.No.458/2018 on the files of the Family Court, Nedumangad. The other respondents in the original petition are his son and wife. His daughter-in-law, the 1st respondent in this appeal, filed O.P.No.458/2018 seeking to recover value of gold ornaments, cash and her other assets, alleged to have been entrusted with the appellant and respondents 2 and 3 herein.

3. The Family court, in exercise of power under Order XXXVIII Rule 5 of the Code of Civil Procedure, conditionally attached before judgment 38 cents of property in survey Nos.1857/37 and 1857/37-1 of Attingal village belonging to the appellant, as per an order passed in I.A.794/2018. Though the appellant and others objected and sought to lift the attachment on the ground that the 1st respondent, the original petitioner failed to establish a prima facie case against the appellant, the plea was turned down through the impugned order, dated 23.11.2018, making the conditional order absolute. The said order passed in I.A.No.794/2018 is challenged by the sole appellant in this appeal.

4. Contention of the appellant is that, the original petition did not contain necessary allegations connecting him with any transactions relating to entrustment or misappropriation of the assets of the petitioner. It is also contended that no requisite materials were brought forth to establish any of the alleged transactions also. According to him, there is nothing on record to establish that any assets of 1st respondent were either entrusted with him or misappropriated by him. In short, substance of his contention is that, no convincing evidence was adduced to prove the genuineness of the claim advanced by the 1st respondent in the O.P. It is further urged that the averments in this original petition as regards entrustment and misappropriation are vague and indefinite. On these grounds, learned counsel for the appellant argued that the impugned order shall be set aside and property of the appellant may be relieved of the attachment.

5. Power of the Family Court to order attachment of property before judgment emerges from Order XXXVIII Rule 5 of Code of Civil Procedure, since provisions of the Code are made applicable to the Family Courts by virtue of Section 10(1) of the Family Courts Act, 1984.

6. Order XXXVIII Rule 5 of the Code of Civil Procedure reads as follows:

“5. Where defendant may be called upon to furnish security for production of property-(1) Where, at any stage of suit, the Court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him,-

(a) is about to dispose of the whole or any part of his property, or

(b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court,

the Court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the Court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security.”

The object of issuing attachment before judgment is to preserve the assets of the respondent and consequently to prevent the execution of prospective decree that may be passed by the court in the proceeding from being defeated. Before the court issuing an order of attachment, it must be satisfied that the respondent with the intent to obstruct or delay the execution of the decree is about to remove any part of his property from the jurisdictional limits of the court or to dispose of his assets. This satisfaction of the court found under under Rule 5 must relate to the veracity or genuineness of the claim advanced by the petitioning party in the proceedings and also to the pr