Order XXXVIII Rule 5 CPC: Supreme Court Says Attachment Before Judgment Must Be Used Sparingly

Home / Top Stories / Supreme Court Judgments Order XXXVIII Rule 5 CPC: Supreme Court Says Attachment Before Judgment Must Be Used Sparingly X Supreme Court clarifies property attachment before judgment in civil suits. Supreme Court says Order XXXVIII Rule 5 CPC cannot secure an unsecured debt, while trial court must independently decide indigency plea under Order XXXIII Rule 1. The Supreme Court has said the power of attachment before judgment under Order XXXVIII Rule 5 of the Civil Procedure Code is drastic and extraordinary and must be exercised sparingly and strictly. The Apex Court emphasized that a court must be satisfied that there is a reasonable chance of a decree being passed and that the defendant is attempting to remove or dispose of assets with the intention of defeating such a decree. The provision cannot be used to convert an unsecured debt into a secured debt, it stressed. Under Order XXXVIII Rule 5 CPC , a civil court can require a defendant to furnish security if it believes the defendant may dispose of or remove assets to defeat a possible decree. In appropriate cases, the court can also order attachment of the defendant’s property before the final judgment. A Bench of Justices P S Narasimha and Alok Aradhe also said that when a matter is remanded by a high court for reconsideration of an application seeking leave to sue as an indigent person, the trial court must decide the plea by applying the relevant legal principles without being influenced by observations made by the high court in the order of remand. Court accordingly declined to interfere with the remand order of the High Court of Kerala, directing the trial court to decide the indigency application in accordance with established legal precedents. The appeals were filed by Arvind Pundalik Tendulkar against judgments dated May 20, 2025 and October 18, 2024 passed by a single judge of the high court. The case arose from a suit filed by Raju K Mathews, an advocate and erstwhile counsel of Tendulkar, seeking recovery of Rs 12,50,51,989. Along with the suit, Mathews filed an application under Order XXXVIII Rule 5 of the Code of Civil Procedure, 1908, seeking attachment before judgment. The trial court passed an ad interim order on March 10, 2023, directing Tendulkar either to furnish security for Rs 12,50,51,989 or to show cause why he should not furnish the security. In the meantime, a conditional order of attachment was passed in respect of schedule item Nos. 1 and 2 properties. After hearing the parties, the trial court, by an order dated October 7, 2023, took note of the statement of Tendulkar's counsel that he had no objection to an order of attachment being passed in respect of schedule item No. 1 property. It accordingly vacated the attachment order in respect of item Nos. 2 and 3. Mathews challenged the order before the high court. By an order dated October 18, 2024, the Kerala High Court set aside the trial court's order insofar as it directed the release of item No. 2 property. It directed the trial court to attach such portion of the sale consideration of Rs 18 crore to which Mathews was entitled under a compromise decree, over and above item No. 1 property that was already under attachment. The trial court was also directed to release the balance amount in deposit to the plaintiff and defendant Nos. 1 to 3 of 2018 in accordance with their entitlement under the compromise decree. The appeal was accordingly allowed. Tendulkar thereafter filed a review petition against the October 18, 2024 judgment. The high court dismissed the review petition by its judgment dated May 20, 2025. Before the Supreme Court, Tendulkar's counsel argued that Mathews' claim, based on an alleged oral agreement regarding legal fees, lacked bona fides and was contrary to public policy. It was submitted that demanding professional fees as a proportion of the litigation proceeds directly contravened Rule 20 of the Bar Council of India Rules and amounted to professional miscon