ATTACHMENT BEFORE JUDGMENT Relevant Provision Order XXXVIII CPC скачать в хорошем качестве

ATTACHMENT BEFORE JUDGMENT Relevant Provision Order XXXVIII CPC

ATTACHMENT BEFORE JUDGMENT,Order XXXVIII #AttachmentBeforeJudgment #pld2018Sindh339) #attachment #PLD2017Lahore689 #2015YLR2674)  Object of attachment before judgment was to prevent an attempt on part of defendant of defeating realization of decree which was to be ultimately passed against him---Such was a preventive and not a punitive action--- Attachment could be ordered, if court was satisfied that defendant was about to dispose of whole or any part of his property with intent to obstruct or delay execution of decree, with or without application as court had to consider/see substance of case to meet the ends of justice- (PLD 2018 Sindh 339)  Intention of the Legislature was very clear with regard to the attachment before judgment that to preserve and protect the property, which was in dispute and for the satisfaction of the decree, then interim order was to be passed; that the basic criteria given for passing restraining order of the property in dispute was for the satisfaction of the decree if considered necessary- (PLD 2017 Lahore 689) Conditions  Application under O. XXXVIII, R. 5, C.P.C. was an extraordinary relief where if Court was satisfied that other party was likely to defeat decree in future then under such special circumstances, Court may pass order with regard to attachment before Judgment. (2020 CLD 238)  Such power is not to guarantee the plaintiff availability of an asset to satisfy decree which ultimately may be passed; it is to ensure non-abusing of process of court by defendant. (2019 YLR 345)  Banking Court had rightly dismissed application on the ground that there was neither prima facie case made out nor any apprehension or probability expressed in application for alienation of the property or that defendants(43) would remove themselves from the jurisdiction of the Court. Application for attachment of property before judgment dismissed. (2018 CLD 1086)  Provisions of O.XXXVIII, R.8, C.P.C. to be invoked where a party was likely to frustrate the order/decree of the Court either by absconding away or removing his property from the ambit of power of Court---Such provision was meant to protect future interest in the property---No such claim or allegation on behalf of plaintiffs was on record, in the present case---Claim of a party should be based on such facts and circumstances which could convince the Court to believe that there was real danger with regard to removal of property from the ambit of Court---Application for arrest and attachment of property before judgment could succeed only when there was an apprehension of irreparable loss and injury to the interest of party who was likely to acquire the property at the end of the day through judgment/decree of the court. (2015 CLC 1695)  Before exercising power conferred by O.XXXVIII, C.P.C. a Court should be satisfied on two points---First that plaintiff's cause of action is prima facie an unimpeachable on subject to his/her proving allegations/claims made in plaint; second being that Court should have reason to believe on the basis of material that unless jurisdiction is exercised there is a real danger that defendant may remove himself from the ambit of powers of Court. (PLD 2015 Sindh 134) Onus to prove Onus of proof is on plaintiff's shoulders to establish that defendant is going to dispose of his property with an 'intent' to 'obstruct' or 'delay' execution of any decree that may be passed against him. (2016 CLD 1202) Attachment of property before judgment was an exceptional remedy under exceptional circumstances which should be established through some cogent evidence. Only apprehension of the plaintiff, in the present case, was that he would not be able to get execution of(44) decree which apparently would be in terms of money. Mere establishing prima facie good case was no ground for invoking the provisions of O. XXXVIII, R.5, C.P.C. without first complying with sub-Rule 1 of R.5 of the said provision (2015 YLR 2674)