An order of attachment before judgment is a drastic remedy and the power has to be exercised with utmost care and caution, and the affidavit filed in support of the application for attachment before judgment must clearly establish that the defendant, with intent to obstruct or delay the execution of the decree that may be passed against him is about to dispose of the whole or any part of his property.

ORDER :- The plaintiff is the petitioner before this court and the defendant is the respondent. The petitioner filed a suit against the respondent for recovery of certain amounts due on account of dealings which the respondent had with the petitioner. The petitioner filed a petition under O.38, R.5, C.P.C. for attachment before judgement of the amounts due to the respondent and lying with the Executive Engineer-cum-Administrative Officer, Tamil Nadu Housing Board, Vellore. Attachment before judgement was ordered by the vacation court, without asking for security from the respondent or asking the respondent to show cause why he should not furnish security as contemplated under O.38, R.5(1), C.P.C. On contest by the respondent, the court held that the attachment effected is void as it has been done in non-compliance of O.38, R. 5(1), C.P.C. and there are no supporting affidavits from third parties to show that the respondent is attempting to defraud his creditors by any overt act. On this finding, the attachment effected was raised. The petitioner has hence filed the civil revision petition before this court.

2. The learned counsel for the petitioner contended that though the statutory language used in O.38, R.5, C.P.C. has not been repeated in the affidavit filed in support of the application for attachment before judgement, the essential requisites for ordering attachment before judgement can be spelt out in the affidavit filed and as the court has ordered conditional attachment, there is compliance of the provisions contained in O.38, R.5(1), C.P.C. and the order of attachment cannot be said to be void for non-compliance of O.38, R.5(1), C.P.C. The jurisdiction of the court to order attachment before judgement arises only when it is satisfied by affidavit or otherwise that the defendant is about to dispose of the whole, or any part of his property with the intention to obstruct or delay the execution of the decree that may be passed against him. So the sine qua non for an order of attachment before judgement is the mala fide intention and the conduct of the defendant in disposing of or about

to dispose of his property with the dishonest intention of defeating or delaying the decree that may be passed in the suit. In the instant case, the allegation made in the affidavit filed in support of the petition for attachment before judgement is to the effect that if the amount due to the respondent and lying with the Executive Engineer is not attached, the petitioner will be put to irreparable loss and hardship and the decree that he may obtain will become a paper decree. It is not stated in the affidavit that the respondent was about to withdraw or receive the money due to him from the Executive Engineer with the mala fide intention to obstruct or delay the execution of the decree that may be passed against him. An order of attachment before judgement is a drastic remedy and the power has to be exercised with utmost care and caution, as it may likely to ruin the reputation and business of the party against whom the power is exercised. As the Court must act with the utmost circumspection before issuing an order of attachment, the affidavit filed in support of the application, for attachment before judgement must clearly establish that the defendant, with intent to obstruct or delay the execution of the decree that may be passed against him is about to dispose of the whole or any part of his property. As these two essential requisites have not been set forth in the affidavit filed by the petitioner, the court below was fully justified in raising the attachment.

3. Before ordering attachment before judgement, the first step is that the Court must be satisfied, by affidavit or otherwise, that the defendant is about to dispose of or remove the whole or part of his property and that is with the intention to delay or obstruct the decree that may be passed against him. The second step is that the Court must direct the defendant to fu