Can a Property Outside the Jurisdiction of the Court be attached before Judgment? Under what circumstances - With Critical analysis on Section 136 of Civil Procedure Code

Money transactions between individuals are not confined to a particular jurisdiction. When one person lends money or entered into a commercial transaction with another person and the later committed default in repayment, the lender can obviously bring up a suit against such defaulter. But it is well known fact that the official court proceedings take long time to be concluded and decreed in favour of the lender or borrower. Sometimes the defaulter tries to dispose of his assets in order to make any potential decree passes against him as ineffective. In such cases - in order to stop the defaulter from escaping his liability by screening away his assets the lender can seek interlocutory relief against the defaulter to provide a security for discharging his liability conditionally attaching his property before judgment.

The law related to attachment before judgment is enunciated under rule 5 of order 38 - civil procedure code, 1908. The attachment before judgment can be granted by the court when the court is satisfied that the ingredients mentioned in Or. 38 Rule 5 are existing. The ingredients for a plaintiff to seek attachment before judgment are as follows:

a. if the Court is satisfied on an affidavit; that the defendant

b. with intent to delay or obstruct the execution of any decree that may be passed against him

c. is about to dispose of whole or any part of his property

d. is about to remove from the local limits of the jurisdiction of the Court, - the whole or any part of his property

the court can direct the defendant either to furnish security (or) to appear and show cause why he should not furnish security - and by making such order the court may simultaneously order for conditional attachment of property before judgment.

On the order made by the court, the asset of such defendant gets attached to an extent as the court orders and the defendant can neither create any encumbrance nor can he dispose of his property until the satisfaction of the plaintiff's liability or until the court decides. The concept of attachment before judgment will be discussed more detailed in a separate article.

Now the real question is can a property situated outside the jurisdiction of the court in which the suit was instituted be attached before judgment by the court which do not have jurisdiction over it. Let us assume a situation where the defendants originally resides or is carrying his business outside the jurisdiction of the court where the lender resides, and commits default of payment. So if the lender wants to file a suit he has to file in the court where the suit transaction took place that might ordinarily be his place of residence or the place of residence of the scribe of the instrument. If the defendant has an immovable property in another village or city over which the court in which the suit was initiated, how can he approach the court to attach the property before judgment.? Section 136 of Civil Procedure Code answers this question.

Section 136 of Civil Procedure Code :

Section 136 of Code of Civil Procedure provides that "Where an application is made that any person shall be arrested or that any property shall be attached under any provision of this Code not relating to the execution of decrees, and such person resides or such property is situate outside the local limits of the jurisdiction of the Court to which the application is made, the Court may, in its discretion, issue, a warrant of arrest of make an order of attachment, and send to the District Court within the local limits of whose jurisdiction such person or property resides or is situate a copy of the warrant or order, together with the probable amount of the costs of the arrest or attachment."

Therefore where attachment of a property situated outside the jurisdiction of the court is sought, the court granting attachment may send the order of attachment to the District Court within whose jurisdiction the property is situated. On receiving such order the later court shall cause to implement the attachment.

Property Outside Jurisdiction – The Scope of Section 136 CPC

A court, though competent to entertain the suit, may left helpless when it comes to the property which the plaintiff seeks to attach is situated beyond its territorial reach. This is precisely where Section 136 CPC comes into action acting as the procedural bridge between two courts to ensure that an order of attachment Order 38 Rule 5 is not left inefficient merely because the defendant’s assets lie outside the territorial domain of the court.

Not relating to execution of Decrees :

The section expressly excludes the situations where the attachment is sought in the stage of execution of a decree. That means that though a court can issue order of attachment for a property out of its jurisdiction, it cannot do the same in execution of a decree as it may result in satisfaction of the decree.

Unlike execution proceedings under Order 21, attachment before judgment is mere preventive in nature. It does not confer or decide any rights nor does it amount to satisfaction of the decree but it only prevents any possible fraudulent or mala fide attempts by the defendant to frustrate the future decree. If the jurisdictional limitations are a bar for attachment before judgment the plaintiff will be forced to go to the court where property is situated and file a suit there which results in harassment of proceedings.

1. Balance Between Plaintiff’s Rights and Defendant’s Protection

Section 136 ensures that a plaintiff is not left hopeless merely because the defendant cleverly moves his assets outside the court’s jurisdiction. At the same time, the provision preserves fairness to the defendant by channeling the attachment order through the District Court that actually governs the situs of the property. Thus, it avoids jurisdictional overreach while safeguarding the potential decree-holder’s rights.

2. Discretionary Nature of the Court’s Power

The express use of terms in Section 136 that — “the Court may, in its discretion, issue an order of attachment…” indicates that the court is not bound to grant attachment in every case. It is the discretion of the court whether to grant or reject an application under section 136 CPC. Judicial precedents have emphasized that such discretion must be exercised cautiously, and only when the conditions under Order 38 Rule 5 are strictly satisfied.

A mere apprehension by the plaintiff that the defendant may dispose of property is insufficient; there must be prima facie material to show mala fide intention. In Raman Tech. & Process Engg. Co. v. Solanki Traders (2008) 2 SCC 302, the Supreme Court underscored that attachment before judgment should not be a routine matter and that courts must guard against its misuse as a tool for harassment.

Conclusion

Thus, Section 136 provides a mechanism for the court issuing attachment on a property situated outside its jurisdiction. The property out of its jurisdictional reach can indeed be attached before judgment—but only through the mechanism of Section 136 CPC. The court trying the suit does not directly have control over the property; instead, it transmits the attachment order to the District Court having territorial jurisdiction over that property.

Our critiQue on This

Section 136 CPC is a classic example of legislative foresight that still manages to stay relevant in contemporary legal practice. Yet, here are the few unsettled and controversial areas where the procedural rules still lack at application to the present day complexities:

1. Jurisdictional Fragmentation vs. Commercial Realities

In today’s India, where commercial transactions is no longer confined to territorial limitations, Section 136 looks somewhat archaic. Sending of attachment orders to District Courts introduces avoidable procedural friction. Shouldn’t a single competent commercial court have pan-India reach to order pre-decree attachment directly?

2. Digital Assets and Cross-Border Property

The Code, was drafted in 1908, where there is no thought of intangible properties. With the advent of e-commerce around the world, the development of other assets like demat accounts, cryptocurrencies, or online business assets have became relevant. The provision is silent whether “property outside jurisdiction” be read expansively to include digital property located on servers in another state—or even outside India? Courts will soon be forced to grapple with these questions.

3. Risk of Plaintiff Misuse

Despite judicial warnings, Section 136 can be wielded as a tool of harassment against the defendant forcing him to come for an instant settlement. A plaintiff can formally freeze a defendant’s assets across multiple jurisdictions, choking his business before liability is even adjudicated. The courts need to cautiously implement this power only under reasonable cases not when plaintiff alleges so.

In short, while Section 136 saves plaintiffs from jurisdictional dead-ends when coming to jurisdictional limitations, its practical future needs serious re-examination.

Key Highlights

• Attachment before judgment (Order 38 Rule 5 CPC) is a preventive relief to secure the plaintiff’s potential decree against the mala fide intentions of the defendant.

• Section 136 CPC extends this power to property or persons outside the jurisdiction of the trial court.

• Section emphasizes a procedural requirement of sending of the order to the court of situs, which executes such order.

• Attachment before judgment is an extraordinary remedy has to be granted only when there is sufficient evidence of mala fide intent.

• Safeguards exist: the plaintiff must deposit probable costs of attachment, and courts exercise caution to prevent misuse.

• Modern challenges: digital assets, commercial courts are not addressed by the 1908 framework.

Frequently Asked Questions (FAQs)

1. Can any property outside jurisdiction be attached before judgment?

   Yes, but only through procedure under Section 136 CPC. The trial court cannot directly execute such attachment; but it must send its order to the District Court where the property is located.

2. Does the District Court have the power to review or deny the attachment order?

   No. Its role is purely ministerial—it must implement the transmitted order and cannot re-adjudicate the merits.

3. Is attachment before judgment automatic if the plaintiff applies?

   Not at all. Courts grant it only when the conditions under Order 38 Rule 5 CPC are strictly met, i.e., there must be evidence of the defendant’s intention to obstruct or delay execution by disposing/removing property.

4. What happens if the defendant sells the property despite attachment?

   Such a transfer is void as against claims enforceable under the attachment. The buyer takes no valid title.

5. Does Section 136 cover movable and immovable property?

   Yes, both—but its practical use is most common for immovable property lying outside the jurisdiction.