Calcutta High Court distinguishes between the scope of Order XXXVIII Rule 5 CPC and Order XXXIX Rule 1 CPC

In the matter of Prabha Surana vs. Jaideep Halwasiya in GA 2 of 2021 in CS 52 of 2021 decided on 22.06.2021 by the Calcutta High Court.

Facts:
The Petitioner moved an application for temporary injunction under Order XXXIX Rule 1 of CPC against the respondent in respect of money lent and advanced by the petitioner to the respondent to the tune of Rs.7,50,00,000/-. The said application was opposed by the Respondent inter alia on the ground that the application was in the nature of an application for attachment before judgment under Order XXXVIII Rule 5 of the CPC and the Petitioner must establish a case that the respondent is either seeking to dispose of the whole or any part of the property or to remove the property from the local limits of the jurisdiction of the Court.

Held:
The Calcutta High Court addressed the objection of the Respondent by drawing a distinction between the provisions of Order XXXIX Rule 1 (Temporary Injunctions) and Order XXXVIII Rule 5 (Attachment before judgment). The Court noted that 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. If the Court finds from the materials before it, that the respondent intends to cause injury to the petitioner in the interregnum including by causing damage to, alienating, selling or removing the property, the Court is empowered to pass orders to prevent the property from being dealt with in such manner or in any way which is prejudicial to the petitioner until the suit is disposed of or until further orders are passed by the Court. The Court has the option to pass orders as it deems fit and on the satisfaction that circumstances warranting preservation of the property exist till the matter advances beyond the preliminary stage.
On the other hand, Order XXXVIII Rule 5 applies at a later stage in a suit where the petitioner seeks to execute a decree. The section, by its very description, applies to an order which lends finality to the suit and aims at preserving the state of affairs after the interim stage in the suit is over. The primary intention of the Court at this stage is to secure the petitioner against the respondent from disposing of or removing his property from the local limits of the jurisdiction of the Court.
Under Order XXXIX Rule 1, the property sought to be preserved is ‘property in dispute in a suit’, whereas, it is the respondent’s property under Order XXXVIII Rule 5 – the words used are ‘his property’ following specific reference to ‘…the respondent, with intent to obstruct or delay…’. The distinction reinforces the need to preserve the suit property till final orders are passed in the former and to secure the petitioner for facilitating execution of a decree in the latter.