Case: – Vandana Verma v/s Roop Singh & Ors.; CS(OS) 437 of 2021
In a recent judgment by the Delhi High Court, the Hon’ble Court emphasized the cautious and sparing use of provisions under Order XXXVIII Rule 5 of the Code of Civil Procedure, 1908. This case sheds light on the principle that suit property cannot be attached mechanically or merely at the request of the plaintiff.
The Hon’ble Court highlighted that the power under Order XXXVIII Rule 5 is a drastic and extraordinary one, which should not be exercised mechanically or merely for the asking of the plaintiff. It should be used sparingly and strictly in accordance with the rule. The purpose of this rule is not to convert an unsecured debt into a secured one. Furthermore, the Hon’ble Court also discouraged any attempt by a plaintiff to utilize the provisions of Order XXXVIII Rule 5 as leverage for coercing the defendant to settle the suit claim.
The judgment referred to the Supreme Court’s decision in Raman Tech. & Process Engg. Co. & Anr. v/s Solanki Traders (2008) 2 SCC 302, which emphasized the need for the plaintiff to satisfy the court that the defendant is seeking to remove or dispose of the whole or part of his property with the intention of obstructing or delaying the execution of any decree that may be passed against him.
Additionally, the High Court highlighted that the plaintiff must show prima facie that their claim is bona fide and valid, and satisfy the court that the defendant is about to remove or dispose of the property with the intention of obstructing or delaying the execution of any decree that may be passed against him before the power under Order XXXVIII Rule 5 is exercised.
The judgment serves as a reminder that the provisions of Order XXXVIII Rule 5 of the CPC are an extraordinary remedy and should not be used as a tool for coercion or harassment. It highlights the need for a genuine and valid case for attachment of the suit property, and the importance of satisfying the court regarding the defendant’s intention to obstruct or delay the execution of a decree.

Author of this article:
Adv. Ravish Bhatt,
Partner, R&D Law Chambers,
Dual Qualified Lawyer Solicitor | International Tax Affiliate

Connect with Mr. Bhatt on Linkedin: https://www.linkedin.com/in/adit-ravishbhatt/

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