Distinction between ‘Temporary Injunction’ and ‘Attachment before Judgment’.
Author: Syeda Aliya Adeen.
TEMPORARY INJUNCTION is provided under Order 39 Rule 1 of Civil Procedure Code 1908 (CPC). The denotation of the phrase ‘Temporary Injunction’ is - when a court of law orders a provisional relief to protect the subject matter in the existing scenario, the court orders a party to do or refrain from doing a certain act for the best interest of property in dispute.
Basically, to delineate the defendant from damaging, interfering, or threatening the subject matter in question. The primary and sole intention of a temporary injunction is to preserve and protect the interest and individuality of the subject matter in question (i.e., property) until a final order is passed by the court.
The word ‘temporary’ clearly denotes the fact that the injunction is granted for a specific amount of time which the court deems fit, and the time period varies from case to case. Section 94(c) of CPC, furnishes that the court of law has the power to grant a temporary injunction, and the parties to the dispute are obliged to obey the orders of the court.
Attachment Before Judgment:
ATTACHMENT BEFORE JUDGMENT is elucidated under Order 38 Rule 5 of Civil Procedure Code (CPC). This is prescribed by a court in a scenario where the plaintiff is able to convince the court through an application that the defendant has hidden intention or motives of disposing the property or dealing with the property before any decree is obtained.
The attachment of the property before judgment is done to assure the plaintiff of his rights. The option of attachment before judgment must be used by courts with utmost care and diligence, failing to do so would be used to defeat the objective of judgment. The defendant must not be prohibited from using or dealing with the property just on some unassertive grounds. Attachment before judgment in practical sense declines the right of alienation, and that should be done in a case where the court is well satisfied with convincing proof that such order is needed.
Distinction Between ‘Temporary Injunction’ And ‘Attachment Before Judgment’:
Prima facie, the intent of both Order XXXIX Rule 1 and XXXVIII Rule 5 appears to be similar i.e., to protect the interest of the petitioner and preserving the disputed property, a significant variance occurs in the applicability of the orders.
A detailed analysis and distinction between ‘Attachment before judgment’ and ‘Temporary injunction’ was done by Calcutta High Court through its order dated 22nd of June 2021 by
Justice Moushumi Bhattacharya.
The court stated that Order 38 by its very nature applies in a stage that lends to the finality of the suit, the sole intention of the court while issuing order 38 is to secure the petitioner against the respondent from removing or disposing of the property from the local limits of the jurisdiction. Under order 38 the words ‘his property’ are used which creates a fair link that the respondent is using the said property (respondent’s property) as a means to obstruct the decree passed against him.
Order 39 is relatively used in a wider sense, the words used under this order are ‘the property in dispute’ which gives a wider ambit to the order unlike order 38. The clear criterion for distinction between Order 38 and Order 39 is the nature of the property.
Another criterion for distinction is the ‘stage of proceeding’. The court grants temporary injunction in a case where there is an impending risk to the said property in dispute, on the contrary, the attachment before judgment is granted in later stages (as the name suggests). If the petitioner is able to prove prima facie irremediable injury to theproperty, the court grants a temporary injunction.
Apart from the two above mentioned distinctions i.e., (a) nature of the property and (b) stages of the proceeding, other minor distinctions are, The concept of a temporary injunction is discussed under Order 39 Rule 1 of CPC, and the concept of attachment before judgment is provided under Order 38 Rule 5 of CPC 1908. As the term implies temporary injunction is ‘temporary relief’, whereas the attachment before judgment is made after the final decree has been granted and hence it is not temporary in nature. Order 38 deals with the property of the respondent and on the contrary the property dealt with under order 39 is ‘property in dispute’, i.e., the owner of the said property is not determined.
Indian civil courts have the power to grant ‘temporary injunction’ with reference to procedures prescribed under Order 39 and Sections 94, 95 of CPC, 1908 but the court can refuse to award a temporary injunction in a case where a permanent injunction cannot be granted whatsoever. Civil courts of India also have been vested with the power to grant ‘attachment before judgment’ with reference to Order 38.
Despite, the fact that these two concepts aim to achieve a similar objective (protection of the property) there is a sliver difference between them which has a huge impact on the materiality and applicability of the concepts. Upon close examination, the distinction reveals itself at the stages of proceedings and the nature of the property.
Edited by Gemma Maria Suzzana. A, Associate editor, Lawgic Stratum.