Signing Date:17.09.2020
20:53:38
of Order XXXVIII Rule 5 of the Code of Civil Procedure , 1908
( CPC ), which were not even pleaded ... conform
to the discipline of Order XXXVIII Rule 5, sub-rule (4) whereof
rendered void any order for attachment, passed in violation of sub-rule
rule (1) of this rule such
attachment shall be void."
29. The essential condition for the party seeking relief under Order XXXVIII
Rule 5 ... used sparingly and strictly in accordance with
the Rule. The purpose of Order XXXVIII Rule 5 is not
to convert an unsecured debt into
plaintiff has not made out any prima facie case for an interim order of attachment before judgment or of an injunction. In fact, the plaintiff ... points were canvassed at the Bar at length.
ORDER XXXVIII, Rule 5:
37.In the present notice of motion, the plaintiff
impugned
order was that the learned Arbitral Tribunal had failed to abide by the
provisions of Order XXXVIII Rule 5 of the CPC , the satisfaction ... rule (1) of this
rule, such attachment shall be void."
52. A bare reading of Order XXXVIII Rule 5 CPC reveals that the
statutory
Supreme Court explained that the power of
ordering attachment before judgment under Order XXXVIII Rule 5 CPC
was drastic. The Supreme Court observed as under ... used sparingly and strictly in accordance with
the Rule. The purpose of Order XXXVIII Rule 5 is not to
convert an unsecured debt
amend Order XXXVIII, Rule 6(2) which relates to withdrawal of attachments.
21. The above interpretation of the provisions of Order XXXVIII, Rule 5 ... attachment under Order XXXVIII, Rule 6 (2) can only be of an order of conditional attachment granted under Order XXXVIII, Rule 5 (3). In fact
rule, the order of attachment is conditional, because the attachment ordered to be made would be ordered to be withdrawn under Order XXXVIII, rule ... notice the court will proceed under Order XXXVIII, rule 6(2). Thus, Order XXXVIII, rule 5(3), and Order XXXVIII, rule 6(1), contemplate
suit. A conditional attachment under Sub-rule (5) of rule 5 of Order XXXVIII of the Code was also sought. This was ordered ... rule 8 of Order XXXVIII (which rule applies in the case of a conditional attachment under Sub-rule 3 of rule 5) attracts the right
Order XXXVIII, Rule 6 of CPC .
Sub-rule (1) of Rule 6, Order XXXVIII covers all cases where the
applications under Order XXXVIII, Rule 5 ... eventually granted.
Sub-rule (2) or Rule 6, Order XXXVIII, however which deals with cases
where applications under Order XXXVIII, Rule 5 are dismissed, does
applicable for grant of such orders in proceedings
before the Court - that is, as applicable under Order XXXVIII Rule
5 of the Code of Civil ... Number : 2023:DHC:2424
20. In order for the court to exercise its powers under Order
XXXVIII Rule 5 of the CPC , it is necessary
