CALCUTTA HC EXPLAINED THE DISTINCTION BETWEEN TEMPORARY INJUNCTION AND ATTACHMENT BEFORE JUDGEMENT

Justice Moushumi Bhattacharya of Calcutta HC explained the distinction between Temporary Injunction and attachment before judgement under the Civil procedure code, 1908. The Court observed that although both the provisions aim to protect the petitioners in preserving the disputed property, their applicability differs when it comes to the type of property and stage of the proceeding.

FACTS

The petitioner seeks an order of injunction against the respondent in respect of money lent and advanced by the petitioner to the respondent on various dates from May 2017 to February 2018 of a principal sum of Rs.7,50,00,000/-. The money was given as a loan with an agreed rate of interest of 15% per annum. However, later the Respondent denied acknowledging the due amount and, therefore, the present dispute.

The counsel appearing for the respondent resisted the prayer and submitted that the present application is in the nature of an application for attachment before judgment under Order XXXVIII Rule 5 of the CPC. The respondent should first be allowed to file his affidavit.

DISTINCTION

Order XXXIX Rule 1 contemplates temporary relief to a petitioner on an imminent risk to the property in dispute in the suit being wasted by certain acts of the respondent. Order XXXVII Rule 5 applies at a later stage in a suit where the petitioner seeks to execute a decree. There is also an important distinction in the nature of the property contemplated under the provisions.

Order XXXVIII Rule 5 is not applicable in the present case simply because the petitioner is not seeking attachment of any of the properties of the respondent. However, having found that the petitioner has made out a satisfactory case under Order XXXIX Rule 1 of The Code, the court passed a temporary injunction.

Author: Papiha Ghoshal