Order 38 cpc. Arrest and Attachment before Judgment 2022-10-04
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Order 38 of the Code of Civil Procedure (CPC) is a provision in Indian law that deals with the procedure for obtaining judgments by default. This means that if a party to a civil suit fails to appear in court or fails to respond to a summons or other legal notice, the court may issue a judgment in favor of the opposing party without further hearing or consideration.
Under Order 38, a party seeking a default judgment must first file an affidavit stating the grounds for seeking the default judgment and the relief sought. The affidavit must also state that the party has served a notice on the other party, informing them of the suit and the date on which the default judgment will be sought.
If the court is satisfied that the requirements of Order 38 have been met, it may issue a default judgment. However, the court has the discretion to set aside the default judgment if the party against whom it was issued can show that they had a valid excuse for their absence or non-response.
Order 38 is an important tool for ensuring that parties to a civil suit do not delay or avoid their legal obligations. It helps to ensure that cases are resolved promptly and efficiently, and that parties are held accountable for their actions.
However, it is important to note that Order 38 is not intended to be used as a means of obtaining an unfair advantage over the other party. The court has the power to set aside a default judgment if it finds that it was obtained improperly or that it would be unjust to enforce it.
In conclusion, Order 38 of the Code of Civil Procedure is a provision that allows parties to obtain judgments by default in cases where the opposing party fails to appear or respond. While it is an important tool for ensuring the efficient resolution of civil disputes, it must be used responsibly and in accordance with the principles of fairness and justice.
Order 36 of CPC
Thus, it becomes imperative to discuss the instances when a temporary injunction can be rejected. R 68 FB 1869. . Where the removal is to a foreign country, the inference is greatly strengthened. Such property may be within or without the jurisdiction of the court.
Furthermore, the party who was interested in buying the property, by the decree of the court, can be compensated by the defaulter. Injunction to restrain repetition or continuance of breach 1 In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained, of, or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right. Procedure where defendant fails to furnish security or find fresh security Where the defendant fails to comply with any Order under rule 2 or rule 3, the Court may commit him to the civil prison until the decision of the suit or, where a decree is passed against the defendant, until the decree has been satisfied: Provided that no person shall be detained in prison under this rule in any case for a longer period than six months, nor for a longer period than six weeks when the amount or value of the subject-matter of the suit does not exceed fifty rupees: Provided also that no person shall be detained in prison under this rule after he has complied with such Order. No agreement or compromise to be entered in a representative suit without leave of Court 1 no agreement or compromise in a representative suit shall be entered into without the leave of the Court expressly recorded in the proceedings; and any such agreement or compromise entered into without the leave of the Court so recorded shall be void. Mode of making attachment. An order for attachment will be withdrawn if the defendant furnishes security or the suit is dismissed.
Small Cause Court not to attach immovable property Nothing in this Order shall be deemed to empower any Court of Small Causes to make Order for the attachment of immovable property. Non-Compliance of Interim Order Everyone must obey the final or interim order passed by the competent court. See Sri Rammanik Vs. Rule 13 Order XXXVIII of Code of Civil Procedure 1908 "Small Cause Court not to attach immovable property" Nothing in this order shall be deemed to empower any Court of Small Causes to make an order for the attachment of immovable property. HIGH COURT AMENDMENTS Andhra Pradesh. The facts in those questions encourage the probability of entitlement to relief for the plaintiff or the defendant.
Guiding principles in the matter of Order 38 Rule 5, CPC
Hence neglect, or suffering execution by other creditors, is not a sufficient reason for an order under Order 38 of the Code. The main purpose of this order is to prevent the defendant from making any attempt to defeat or escape from any liability imposed by the court on him and protect the interest of the plaintiff. Devinder Bajaj, 2010 8 SCC 1 Raman Tech. Ganu Singh Vs Jangi Lal, 26 C 531. If upon such application being made a defendant in the same suit having the same interest as that of the plaintiffs applies for permission to be transposed a§ plaintiff to conduct the suit further, he shall be permitted to do so and the plaintiffs application dismissed.
Adjudication of claim to property attached before judgment Where any claim is preferred to property attached before judgment, such claim shall be adjudicated upon in the manner hereinbefore provided for the adjudicated of claims to property attached in execution of a decree for the payment of money. Bar to suit No suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful. The court may award in the decree the amount so paid and interest on it to be paid against the defaulter. Property without jurisdiction v. Withdrawal of suit or abandonment of part of claim 1 At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim: Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court. Subs, by Act No.
The court to protect both the parties from incurring any loss passed an order to stop construction activities on the disputed property with an immediate effect. Rule 6 Order XXXVIII of Code of Civil Procedure 1908 "Attachment where cause not shown or security not furnished" 1 Where the defendant fails to show cause why he should not furnish security, or fails to furnish the security required, within the time fixed by the Court, the Court may order that the property specified, or such portion thereof as appears sufficient to satisfy any decree which may be passed in the suit, be attached. When can a Temporary Injunction be rejected The circumstances in which a temporary injunction is granted is governed by Order 39, Rule 1 of the Code on Civil Procedure, 1908, which will be discussed later. . The jurisdiction to issue warrant and call for security is vested with the court even with regard to foreigners, just as it is vested with the court in regard to dishonest and fraudulent Indian defendants. Where property is under attachment by virtue of the provisions of this order and a decree is subsequently passed in favour of the plaintiff, it shall not be necessary upon a application for execution of such decree to apply for a re-attachment of the property.
HIGH COURT AMENDMENT Bombay. Rule 7 Order XXXVIII of Code of Civil Procedure 1908 "Mode of making attachment" Save as otherwise expressly provided, the attachment shall be made in the manner provided for the attachment of property in execution of a decree. If the attachment was effected by an injunction in restraint of alienation of the defendant will not be entitled to damages for wrongful attachment, unless he proves that he lost a chance of a profitable sale, and evidence of loss credit is insufficient. Adjudication of claim to property attached before judgment. Attachment where cause not shown or security not furnished.
No appeal from a decree passed under rule 5 No appeal shall lie from a decree passed under rule 5. On the other hand, a temporary injunction restricts the parties temporarily from not performing specified actions and can only be approved before the litigation or until a further court order is dealt with. Before passing an order of attachment before judgment, the Court must be satisfied on the compliance ofO. M, Kasiviswanthan Chettiar, AIR 1974 Mad. HIGH COURT AMENDMENTS Allahabad. The courts issue these orders to prevent any party from being harmed because the other party may have continued acting upon the issue involved in the suit.
Order 38 Rule 8 CPC: Adjudication of claim to property attached before judgment.
It is a sort of a guarantee against decree becoming infructuous for want of property available from which the plaintiff can satisfy the decree. See Sri Rammanik Vs. Chacko 1989 ; S. Particulars must be stated. Where the property sought to be attached is transferred before filing of the suit, the claim by creditor that transfer was hit by s 53 of the Transfer of Property Act 1882 cannot be rejected on the ground that the transferee were not made parties to the suit. When transposition of defendants as plaintiffs may be permitted Where a suit is withdrawn or abandoned by a plaintiff under rule 1, and a defendant applies to be transposed as a plaintiff under rule 10 of Order I, the Court shall, in considering such application, have due regard to the question whether the applicant has a substantial question to be decided as against any of the other defendants. Interlocutory orders are the extension of which temporary injunctions are a part of.
