AI Overview...
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Furnishing Security Before Attachment - The defendant is generally required to furnish security (such as a security bond or bank guarantee) before an attachment order can be issued, to prevent disposal or removal of the property in question. Courts emphasize that this requirement is mandatory under Order 38 Rule 5 of the Civil Procedure Code (CPC) and related procedural rules Gurpreet Singh VS Ab. Gani Dar - Jammu and Kashmir, BRAHMPAL SINGH VS STATE OF UTTAR PRADESH - Allahabad, The Allahabad Bank Ltd. VS Rana Sheo Amber Singh - Allahabad.
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Legal Requirements for Attachment - Proper compliance with procedural provisions, including issuing a general notice and directing the defendant to furnish security, is essential for the legality of attachment orders. Failure to adhere to these mandatory provisions renders the attachment illegal Nidhi Clearing and Forwarding Company, per Managing Partner, Sri K. Ravi Kumar VS Associated Cement Companies Ltd. ,per Manager (Marketing), R. Venkatramani - Andhra Pradesh, Rajesh Kumar Goel VS Mamta - Madras.
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Form of Security - Courts consider various forms of security acceptable, such as security bonds or bank guarantees, which can be registered if required. The security must be satisfactory to the court, and in some cases, a registered security bond is preferred over cash or bank guarantees BRAHMPAL SINGH VS STATE OF UTTAR PRADESH - Allahabad.
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Attachment Before Judgment - Under Order 38 Rule 6 and Rule 8 of the CPC, attachment before judgment is permissible when the defendant fails to furnish security or show cause against the attachment order. The court must direct the defendant to furnish security before passing such orders Nidhi Clearing and Forwarding Company, per Managing Partner, Sri K. Ravi Kumar VS Associated Cement Companies Ltd. ,per Manager (Marketing), R. Venkatramani - Andhra Pradesh, J. RAM MURTHY VS Srinivas Corporation General Merchants and Commission Agents 5-3-775/9 Thokphana, Hyderabad - Andhra Pradesh.
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Specific Cases and Applications - Several cases involve applications for attachment of properties or assets (e.g., properties of Rai Bahadur Sheo Pratap Singh, insurance policies, or bank deposits). In these cases, courts consistently highlight the necessity of directing the defendant to furnish security prior to attachment, as mandated by law The Allahabad Bank Ltd. VS Rana Sheo Amber Singh - Allahabad, The Federal Bank Ltd. VS Indiradevi Kunjamma and others - Bombay.
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Security in Context of Cheques and Securities - Cheques given as security (not as enforceable debts) are not to be treated as enforceable debts, and the courts have held that such cheques should be returned rather than deposited. The issuance of cheques as security does not constitute an enforceable debt, affecting attachment proceedings C. M. Smith and Sons. Ltd. VS State of Gujarat - Gujarat, C. M. Smith and Sons. Ltd. Through Deinesh Mohanlal Panchal VS State of Gujarat - Crimes.
Analysis and Conclusion:
The overarching principle from these sources is that in attachment before judgment under the CPC, courts must direct the defendant to furnish security—preferably in a form satisfactory to the court—before ordering attachment of property. Procedural compliance with mandatory rules (Order 38 Rule 5 and related provisions) is critical; failure to do so renders the attachment illegal. Courts recognize various forms of security, including security bonds and bank guarantees, and emphasize that security given as a mere security (e.g., cheques not linked to enforceable debts) should not be treated as enforceable claims or assets for attachment. Overall, securing the property through proper security measures is a prerequisite for lawful attachment proceedings.
Search Results for "Respondent Furnish Security Instead of Attachment Property Case Lays"
2010 0 Supreme(J&K) 618 • India - Jammu and Kashmir
Hasnain Massodi
5, emphasizing the need for the defendant to furnish security to prevent disposal or removal of the property in question. ... Fact of the Case: The plaintiff filed an application for attachment of the defendant's property before judgment, alleging ... security, and the procedural errors in the Trial Court's orders. ... furnish security. ... It is only in the event of failure of the defendant to show cause against the order requiri....
1995 0 Supreme(AP) 981 • India - Andhra Pradesh
K.B.SIDDAPPA
CIVIL PROCEDURE CODE, Or39, Rule 5 - Attachment before judgment not complying with mandatory provisions of Rule 5 (II) is illegal ... Procedure laid, down under Rule 5(I) is mandatory - Issuance of General Notice to defendant is not sufficient compliance for ordering attachment ... V (under Order 38 Rule 5) calling the respondent to furnish security in such sum as may be specified in the Order or require the respondent to produce the property itself or such portion th....
2007 0 Supreme(All) 2245 • India - Allahabad
JANARDAN SAHAI
Bench directed petitioners to furnish security to the satisfaction of the District Judge other than in the form of cash or bank ... guarantee—A registered security bond in addition is a better security—Hence, claim of petitioner that a security bond does not require ... (Indian) Registration Act, 1908—Section 17(2)—Code of Civil Procedure, 1908—Order XLI, Rule 6—Security bond—Registration of—Division ... This court modified the order of the District Judge and instead ....
2015 0 Supreme(Mad) 1618 • India - Madras
K.KALYANASUNDARAM
The respondent sought attachment before judgment of the defendant's property under Order 38 Rule 5, Sections 94(b), 136 and 151 of ... security before passing a final order of attachment. ... 94(b), 136 and 151 of C.P.C] Fact of the Case: The respondent filed a suit against the petitioner for recovery of money ... Order 38 Rule 5 of CPC clearly lays down that a Court at the first instance must direct the defendant to furnish #HL_ST....
1987 0 Supreme(AP) 517 • India - Andhra Pradesh
V.BHASKARA RAO
11-A the claim shall be adjudicated upon in the manner provided by the earlier provisions of CPC, for adjudication of claims to property ... attached in execution of a decree for the payment of money It is Order 21 Rule 58 that provides for adjudication of the claims of property ... It is O. 38, R. 6 that contemplates passing of an order of attachment before Judgment in cases where the defendant fails to furnish security or shall not show cause why such a direction to furnish #HL_START....
1976 0 Supreme(All) 91 • India - Allahabad
T.S.MISRA, PREMPRAKASH
Fact of the Case: The Bank made application under Order 38, Rule 5 of the Code of Civil Procedure for attachment of ... The Bank applied on 2nd April, 1957 for attachment of the Kothi of Rai Bahadur Sheo Pratap Singh as also for attachment of the kothi ... Case No. 31 of 1956. ... Rule 5, Order 38 clearly lays down that before an order of attachment can be made it is incumbent on the court to direct the defendant to furnish security#HL_EN....
2022 0 Supreme(Guj) 161 • India - Gujarat
GITA GOPI
also, evidently, cheque in question was given as 'security' and not in respect of any 'enforceable debt', which applicant No.1-Company ... ought to have returned cheque in question to applicant No.1-Company instead of depositing same - In considered opinion of this Court ... was required to pay to respondent-complainant - Thus, as per admission of complainant also, cheque in question was not issued in ... Smith at Nadiad for serving the Warrant of Attachment, the respondent is given 11 cheques. The Elev....
1987 0 Supreme(AP) 518 • India - Andhra Pradesh
V.BHASKARA RAO
11 & 11-A- Court that decreed a suit can continue inquiry into a petition filed under Rule 8 pending suit for raising order of attachment ... It is Order 38 Rule 6 that contemplates passing of an order of attachment before Judgment in cases where the defendant fails to furnish security or shall not show cause why such a direction to furnish security shall not be issued, etc. Order 38 rule 8 C. ... It was an attachment before Judgment in a suit filed for recovery of mo....
1984 0 Supreme(Bom) 286 • India - Bombay
G.F.COUTO
Fact of the Case: The appellant Bank filed a suit against the respondents for recovery of an amount based on an advance ... Insurance Policy - Attachment of Monies - Sec. 60(kb) Civil Procedure Code - Sec. 39 of the Insurance Act - [Sec. 60(kb) Civil ... The appellant sought attachment of Insurance Policies before judgment, which was initially granted but later dismissed. ... Sec.60 Civil.Procedure Code deals with the property which is liable to attachment and sale in execution of a ....
• India - Crimes
GITA GOPI
’ – Proceedings under Section 138 of NI Act would lie only in respect of any ‘enforceable debt’ – Respondent-complainant itself has ... 482 read with Article 226 of Constitution of India – Dishonour of cheque – Issuance of process – Cheque in question was given as ‘security ... stated that cheque in question has been given in view of compromise arrived at between parties – Cheque in question was given as ‘security ... Smith at Nadiad for serving the Warrant of Attachment, the respondent is given 11 cheq....
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