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Effect of Previous Attachment - Once attachment is effected, it generally remains in force until legally lifted or until a specified condition is met, such as fulfillment of security or final court orders ["M/S.ELSTONE TEA ESTATES LIMITED vs PIUS.C.MUNDADAN - Kerala"] ["Master Piece India Pvt Ltd., Represented By Its Director, Mr. Arulrajesh Mariaarulanandam vs State Of Karnataka, Through Its Secretary, Department Of Commercial Taxes Goods And Services Tax (Gst) - Karnataka"].
Necessity of Further Attachment - If attachment has already been made and remains in effect, further attachment is not necessarily required unless the initial attachment is invalid, has expired, or is challenged successfully. For instance, once sufficient security is furnished the attachment has to go ["VISWAN vs SARASWATHY - Kerala"], and the order of provisional attachment must cease to subsist after certain legal steps, e.g., final assessment ["Master Piece India Pvt Ltd., Represented By Its Director, Mr. Arulrajesh Mariaarulanandam vs State Of Karnataka, Through Its Secretary, Department Of Commercial Taxes Goods And Services Tax (Gst) - Karnataka"].
Effect of Existing Attachment on Further Bond or Security - An existing valid attachment typically negates the need for additional bonds unless the initial attachment is invalid or has been lifted. Mere pendency of an attachment cannot stand in the way of effecting mutation if the attachment was prior ["SHANAVAS.O vs THE DISTRICT COLLECTOR - Kerala"]. Also, if the attachment is conditional or partial, further security or bonds may be necessary to satisfy legal requirements ["VISWAN vs SARASWATHY - Kerala"].
When Further Attachment or Bond is Necessary - Additional bond or security becomes necessary when the initial attachment is invalid, not in accordance with prescribed forms, or has expired. For example, the security bond is not in accordance with the provisions of Order 38 Rule 5 ["SHAH MULCHAND MOHANLAL VS SHAH DAMODARDAS AMTHACHAND - 1970 0 Supreme(Guj) 96"], or when the attachment was not properly made or was challenged in court ["Haji Rahim Bux and Sons v. Firm Samiullah - Allahabad"].
Legal Requirements for Attachment and Bonds - Proper attachment must be made in accordance with statutory provisions, including correct form and jurisdiction. If the attachment is irregular or improperly executed, further attachment or bonds may be necessary ["Haji Rahim Bux and Sons v. Firm Samiullah - Allahabad"] ["Jagannath Prosad Jayaswal VS Ramprosad Jayaswal - Gauhati"].
Conclusion - If an attachment is already in effect and valid, further attachment or bonds are generally unnecessary unless the initial attachment is invalid, expired, or challenged successfully. The legal position emphasizes that existing valid attachments suffice until legally lifted or rendered ineffective ["M/S.ELSTONE TEA ESTATES LIMITED vs PIUS.C.MUNDADAN - Kerala"], ["Master Piece India Pvt Ltd., Represented By Its Director, Mr. Arulrajesh Mariaarulanandam vs State Of Karnataka, Through Its Secretary, Department Of Commercial Taxes Goods And Services Tax (Gst) - Karnataka"], ["VISWAN vs SARASWATHY - Kerala"].
References:
- ["M/S.ELSTONE TEA ESTATES LIMITED vs PIUS.C.MUNDADAN - Kerala"]
- ["Master Piece India Pvt Ltd., Represented By Its Director, Mr. Arulrajesh Mariaarulanandam vs State Of Karnataka, Through Its Secretary, Department Of Commercial Taxes Goods And Services Tax (Gst) - Karnataka"]
- ["VISWAN vs SARASWATHY - Kerala"]
- ["Haji Rahim Bux and Sons v. Firm Samiullah - Allahabad"]
- ["Jagannath Prosad Jayaswal VS Ramprosad Jayaswal - Gauhati"]
In civil litigation, securing assets through attachment before judgment is a critical tool to prevent defendants from disposing of property to evade execution. But what happens if the attachment is already in effect? A common query arises: if attachment already effect, further form 2 bond is necessary? This question touches on procedural nuances under the Code of Civil Procedure, 1908 (CPC), particularly Order 38 Rule 5.
This blog post delves into the legal framework, analyzing whether additional security bonds are mandatory post-attachment, drawing from judicial precedents and statutory provisions. We'll explore why such requirements are often viewed as procedural rather than jurisdictional, helping litigants navigate these complexities effectively.
Attachment before judgment, governed by Order 38 of the CPC, allows courts to temporarily seize a defendant's property if there's a risk of obstruction or delay in execution. Under Rule 5, before ordering attachment, the court must direct the defendant to furnish security. This typically involves a bond in a prescribed form, such as Form No. 2 in Appendix E of the CPC.
The goal is substantive protection of the plaintiff's interests, not rigid formality. Courts emphasize that once attachment is validly effected, the focus shifts to enforcement rather than repetitive procedural steps. SHAH MULCHAND MOHANLAL VS SHAH DAMODARDAS AMTHACHAND - 1970 0 Supreme(Guj) 96 clarifies: The provisions of Order 38 Rule 5 of the Code are procedural and the rules framed under Sec. 94 of the Code are intended to regulate the mode of exercise of jurisdiction that exists independently of Order 38 Rule 5.
Order 38 Rule 5 mandates the court to satisfy itself that the defendant intends to dispose of or remove property to obstruct execution. It then directs security in a specified manner, often via a bond. However, these are procedural safeguards, not prerequisites for jurisdiction.
Key aspects include:
- Form and Execution: Bonds must follow prescribed formats, but deviations are irregularities, not nullities.
- Timing: Security is required before attachment order, but post-attachment bonds serve supplemental roles.
- Purpose: To ensure availability of assets for decree satisfaction.
Non-compliance doesn't automatically void the attachment if the initial order was valid. Courts prioritize substantive justice over hyper-technical objections. U. Noordin Kutti VS N. Kunhi Bava - 1912 0 Supreme(Mad) 369 holds: Failure to conform to the provisions of Section 274, Civil Procedure Code, regarding the attachment of a debt as immoveable property would only be an irregularity, and the purchaser would obtain a valid right to enforce the security notwithstanding the absence of attachment according to Section 274.
Once attachment is validly effected, further bonds like Form 2 are generally not necessary and are treated as procedural. The initial attachment subsists, and additional bonds don't invalidate it unless fundamentally prejudicial.
Procedural lapses in bonds—such as improper form or execution—are waivable if not timely challenged. Panna Lal VS Nand Kishore - 1954 0 Supreme(Raj) 51 observes: The irregularity in procedure was not earlier objected to by the surety; hence, the surety is now stopped from challenging the illegality in the procedure. Parties acquiescing cannot later object. SHAH MULCHAND MOHANLAL VS SHAH DAMODARDAS AMTHACHAND - 1970 0 Supreme(Guj) 96 reinforces: Where a party acquiesces in irregular procedures, they cannot subsequently challenge the legality of the proceedings.
Additional bonds post-attachment are supplemental. They don't retroactively affect validity unless defective in a way that prejudices rights. In D. S. S. Subbarama Iyyar VS Somalinga Subba Ayyar - 1924 0 Supreme(Mad) 240, a post-attachment bond was upheld despite irregularities, persisting even after suit dismissal.
Related principles affirm: If property is already attached, no re-attachment or further security is needed. Swamy H. L. , S/o. M. Lingaiah VS Lakshmamma Major, W/o. Thimmegowda - 2018 Supreme(Kar) 247 states: The power of the trial Court is certainly superior till that of the executing Court... But, the earlier attachment before judgment subsists for ever. Once it is seen that no further attachment is necessary for bringing the property to sale in execution, the attachment effected, even if it is so, is only a redundant. Similarly, HMP Cements Limited (Now Known as Global Cements Ltd. ) represented by its Director, Mr. D. V. Pillai and HMP Snehalata Malleshwaram Properties (P) Ltd. (Now Known as Malleshwaram, Properties Private Limited) represented by its Director, Mr. Sushil Kumar Ga VS Karnataka State Industrial Investment and Development Corporation Ltd. represented by its Asst. General Manager (Legal), HMP Engineering Ltd. Regd. (rep. by its Managing Director), Sri Mahabit Prasad Poddar S/o Hemraj Poddar and Sri Dewaki Nandan Poddar S - 2010 Supreme(Kar) 341 notes: Insofar as attachment of immovable properties are concerned, if they are already attached, no further attachment is necessary.
Courts consistently hold that bond irregularities don't nullify valid attachments:
- Procedural vs. Jurisdictional: Order 38 Rule 5 compliance is directory. SHAH MULCHAND MOHANLAL VS SHAH DAMODARDAS AMTHACHAND - 1970 0 Supreme(Guj) 96
- Timely Objection Required: Waiver applies if unchallenged. Panna Lal VS Nand Kishore - 1954 0 Supreme(Raj) 51
- Enforcement Unaffected: Purchaser's rights persist despite flaws. U. Noordin Kutti VS N. Kunhi Bava - 1912 0 Supreme(Mad) 369
- Post-Attachment Bonds: Valid if not prejudicial. D. S. S. Subbarama Iyyar VS Somalinga Subba Ayyar - 1924 0 Supreme(Mad) 240
In execution contexts, redundant attachments lift upon satisfaction, but initial ones endure. Swamy H. L. , S/o. M. Lingaiah VS Lakshmamma Major, W/o. Thimmegowda - 2018 Supreme(Kar) 247 This aligns with Order 21 Rule 57 and Section 64 CPC, where attachments prevail over alienations. Swamy H. L. , S/o. M. Lingaiah VS Lakshmamma Major, W/o. Thimmegowda - 2018 Supreme(Kar) 247
Other precedents echo these themes. In mortgage scenarios, if property is secured, further attachment is unnecessary. J. M. Meera Nachi VS Sri Ashtalamshmi Finance Tirunelveli - 2005 Supreme(Mad) 715 clarifies: Since the mortgage is already a secured debt, no further attachment is necessary. This underscores avoiding multiplicity.
Under CrPC Section 83, attachment requires explicit orders; proclamations alone don't suffice. State Bank of India, Represented by its Assistant General Manager, Stresses Assets Management Branch (S. A. M. B) VS Sub Registrar, Kozhencherry, Pathanamthitta - 2023 Supreme(Ker) 348 Finding no proper attachment order, courts direct registration without endorsement. This highlights strict initial compliance but procedural flexibility thereafter.
In enforcement acts like State Financial Corporations Act, attachments follow CPC, and execution proceeds post-compliance. HMP Cements Limited (Now Known as Global Cements Ltd. ) represented by its Director, Mr. D. V. Pillai and HMP Snehalata Malleshwaram Properties (P) Ltd. (Now Known as Malleshwaram, Properties Private Limited) represented by its Director, Mr. Sushil Kumar Ga VS Karnataka State Industrial Investment and Development Corporation Ltd. represented by its Asst. General Manager (Legal), HMP Engineering Ltd. Regd. (rep. by its Managing Director), Sri Mahabit Prasad Poddar S/o Hemraj Poddar and Sri Dewaki Nandan Poddar S - 2010 Supreme(Kar) 341 Provisional attachments under Customs Act demand necessity opinions but reinforce procedural rigor. Chokshi Arvind Jewellers, Through its Partner, Mr. Kapil A Parekh VS Union of India - 2024 Supreme(Bom) 337
In summary, once attachment before judgment is effective, a further Form 2 bond is typically not necessary under CPC. Procedural requirements under Order 38 Rule 5 safeguard processes but don't undermine valid attachments unless prejudicial. Litigants should ensure initial compliance while noting waiver principles.
Disclaimer: This post provides general information based on judicial precedents and is not legal advice. Laws vary by jurisdiction, and outcomes depend on facts. Consult a qualified lawyer for case-specific guidance.
References:
1. SHAH MULCHAND MOHANLAL VS SHAH DAMODARDAS AMTHACHAND - 1970 0 Supreme(Guj) 96
2. U. Noordin Kutti VS N. Kunhi Bava - 1912 0 Supreme(Mad) 369
3. Panna Lal VS Nand Kishore - 1954 0 Supreme(Raj) 51
4. D. S. S. Subbarama Iyyar VS Somalinga Subba Ayyar - 1924 0 Supreme(Mad) 240
5. Swamy H. L. , S/o. M. Lingaiah VS Lakshmamma Major, W/o. Thimmegowda - 2018 Supreme(Kar) 247
6. HMP Cements Limited (Now Known as Global Cements Ltd. ) represented by its Director, Mr. D. V. Pillai and HMP Snehalata Malleshwaram Properties (P) Ltd. (Now Known as Malleshwaram, Properties Private Limited) represented by its Director, Mr. Sushil Kumar Ga VS Karnataka State Industrial Investment and Development Corporation Ltd. represented by its Asst. General Manager (Legal), HMP Engineering Ltd. Regd. (rep. by its Managing Director), Sri Mahabit Prasad Poddar S/o Hemraj Poddar and Sri Dewaki Nandan Poddar S - 2010 Supreme(Kar) 341
7. J. M. Meera Nachi VS Sri Ashtalamshmi Finance Tirunelveli - 2005 Supreme(Mad) 715
8. State Bank of India, Represented by its Assistant General Manager, Stresses Assets Management Branch (S. A. M. B) VS Sub Registrar, Kozhencherry, Pathanamthitta - 2023 Supreme(Ker) 348
An order of conditional attachment was also issued as prayed for. 2. ... Hence the attachment granted by the Execution Court also ceased to be in effect. Therefore, the learned counsel submitted that the 1st respondent was perfectly justified in seeking furnishing of security and attachment to secure the plaint claims. ... Surendradas [2020(5)KHC 461] (2) Mathukutty Mathew v. ... He pointed out that a report to the effect that the property was not attached was submi....
Before the order of provisional attachment, the Commissioner must form an opinion on the basis of the tangible material available for attachment that the assessee is not likely to fulfil the demand payment of tax and it is therefore necessary to do so for the purpose of protecting the interest of the ... Therefore, once the final order of assessment is passed under Section 74 the order of provisional attachment must cease to subsist. Therefore, after the final order under Section 74 of the Hpgst Act was....
The security offered to the plaintiff in place of attachment has to be a reasonable substitute. Compliance with the requirements of the law in the matter of bonds therefore is necessary. TOO much importance was given to the form and the same was considered a matter of substance. ... On April 4 1910 the Court made an order of attachment absolute in the following terms:-NO objection to attachment subject to mortgage already created in favour of Muthu Chetty. Petitioner does not admit any....
A sale attended with an irregularity has to be set aside; whereas in a null and void sale only a declaration to that effect may be necessary, if at all. ... ... (2) Whether sale of the property without any valid attachment was valid and effective under S. 51 (b) of the Code ? ... Sub-sections (1) and (2) of S.136, therefore, prescribe not only the manner in which the attachment shall be made but also jurisdiction for making the attachment. ... Sub-section (....
Under sub-Section (2) of Section 83, a provisional attachment ceases to have effect upon the expiry of a period of one year of the order being passed under sub-Section (1). ... Sub-section (5) was inserted in Section 110 by the Finance (No.2) Act, 2019 with effect from 1st August, 2019. ... The proper officer must form an opinion that it is necessary to provisionally attach the bank account for the aforesaid reasons and not only expedient to do so. ... It is thus, cle....
him to show cause against the forfeiture, it was absolutely necessary to issue such notice where the surety was concerned. ... Where an accused was released on his entering, along with a surety, into recognizances in accordance with section 341 of the Criminal Procedure Code, but couched in a, special form, and where they failed to comply with the terms of the bond, though summonses were issued to them to appear ... bond without notice, but that it had not been customary to forfeit the surety's bond#HL....
surviving right of the owner of the property for redemption of the property from mortgage already executed. ... It is submitted by the learned counsel for the petitioner that the petitioner had made necessary enquiries with the Judicial First Class Magistrate Court-I, Peermade, but it was found that there was no legal or proper order of attachment passed by the said court and that therefore, there was no attachment ... It is submitted on the basis of the said order sheet, which is produced as Ext.P7, that there was no #H....
Under Rule 4 of the same Schedule, the Court can make further direction, if necessary. See also Rule 21. The form of the security which has been tendered is good. The bond in question is not governed by section 2 of Ordinance No. 7 of 1840- Queen's Advocate v. ... Counsel for the respondent argued that the only form of bond relating to immovable property which has legal validity is a bond which is in accordance with section 2 of Ordinance No....
that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary." ... For example, a document which purpots to effect a mortgage containing a personal covenant if unattested can still operate as a bond. ... Those properties, as stated already, are situate wholly outside the limits of the Madras city. The security bond was executed in the presence of the Second Assitant Registrar of this court, who signed the same a....
Because, says the District Judge, that form of bond is already provided for in section 538; and I think that that is the true explanation, and that a bond under section 538 may either be made " to Mr. A. ... 2 [(1908) 3 A. C. R. 46.] De Jong, for the plaintiff, respondent.-The bond sued upon is substantially in Form 90. The form is so worded as to enable a Secretary for the time being to sue upon it. ... I think that the Legislature must be take....
The power of the trial Court is certainly superior till that of the executing Court, as the latter merely carry out the order or decree of the former Court. But, the earlier attachment before judgment subsists for ever. Once it is seen that no further attachment is necessary for bringing the property to sale in execution, the attachment effected, even if it is so, is only a redundant. If at all the redundant attachment will alone go, with the dismissal of the execution application.
7. The learned counsel for the petitioner has strenuously contended that in terms of Section 69 of the Act, proceedings against both respondents 2 and 3 are eminently maintainable. He has also submitted that in the light of Ext.P1 indemnity bond jointly executed by both the respondents, the attachment is unexceptional. In support of his submissions, the learned counsel has placed reliance on Sekharan v. State of Kerala and others, 1976 KLT 137.
Insofar as attachment of immovable properties are concerned, if they are already attached, no further attachment is necessary. In these circurns tances, I find no merit in the writ petition No. 7224/2008 and accordingly, it is dismissed Writ Petition No. 10811/2008 is allowed.
Since the mortgage is already a secured debt, no further attachment is necessary. On the basis of the Final Decree, mortgaged property is to be sold. It is highly doubtful whether the Petition filed under Order 21 Rule 58 CPC is maintainable. The question of maintainability of the Petition under Order 21 Rule 58 CPC is to be gone into at the time of hearing the claim Petition in E.A.No.153 of 2004, suffice it to point out that the Petitioner has no prima facie case to grant stay of sale.
It is further stated in the affidavit in reply that the order of attachment is required to be continued till termination of the criminal proceedings as prescribed under section 10 of the Ordinance of 1944. The deponent further states that if the property attached is released from the attachment, the very purpose of attachment will be defeated. Finally it is stated that the petitioner ought to have challenged the legality of the attachment order and the rejection order by filing appeal, as contemplated under section 11 of the Ordinance of 1944.
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