High Court Declares Pre-Judgment Attachment of Property Illegal Without Compliance with Mandatory CPC Procedures

Relevant Law: Order XXXVIII, Rules 5 and 6, and Section 151 of the Code of Civil Procedure, 1908.

The High Court has observed that compliance with Order XXXVIII, Rules 5 and 6 of the Code of Civil Procedure, 1908, is mandatory before ordering the attachment of a defendant's property prior to judgment. An attachment order cannot be issued merely on the basis of apprehension regarding recovery of a debt or general allegations without following the procedures prescribed by law.

Recently, a High Court Division bench comprising Justice Md. Mujibur Rahman Miah and Justice Rezaul Karim delivered the judgment following the final hearing of Writ Petition No. 2498 of 2026. The Court declared the attachment order passed by the Artha Rin Adalat unlawful and set it aside.

Background of the Case

According to the case records, a bank filed a money loan suit against eight defendants, including Touhidul Islam Chowdhury, seeking recovery of BDT 148 crore, 19 lakh, 2 thousand, 810 taka and 42 paisa. The suit was initially registered as Money Loan Suit No. 337 of 2025 and was subsequently renumbered as Money Loan Suit No. 343 of 2025 before Artha Rin Adalat No. 5, Dhaka.

After the defendants submitted their written statements, the bank filed an application under Order XXXVIII, Rule 5, read with Section 151 of the Code of Civil Procedure, seeking attachment of the defendants' personal properties before judgment.

Subsequently, on 18 November 2025, the Artha Rin Adalat allowed the application without issuing a proper show-cause notice or following the requisite legal procedures. Being aggrieved by the order, one of the defendants filed a writ petition before the High Court Division. Upon preliminary hearing, the High Court issued a Rule and stayed the operation of the impugned order.

Arguments on Behalf of the Petitioner

During the hearing, Advocate Taisir Haque, appearing for the petitioner, argued that under Order XXXVIII, Rule 5 of the Code of Civil Procedure, the Court must be satisfied that the defendant is attempting to dispose of or remove their property from the jurisdiction of the Court with the intention of obstructing or delaying the execution of a potential decree.

However, the bank failed to produce sufficient evidence establishing such apprehension. Moreover, the attachment order was passed without giving the defendant an opportunity to furnish security or show cause as to why such security should not be furnished.

On the other hand, Advocates Margub Kabir and Taisir Mahmud, appearing for the bank, opposed the writ petition and argued that the bank's application sufficiently demonstrated the apprehension of property transfers by the defendants to evade repayment of the outstanding loan. Accordingly, they maintained that the order of the Artha Rin Adalat was justified.

High Court's Observations and Decision

Upon considering the submissions of both parties and examining the case records, the High Court observed that Order XXXVIII, Rules 5 and 6 of the Code of Civil Procedure prescribe a specific and mandatory procedure for attachment of property before judgment.

The Court explained that, in the first instance, the defendant must be directed to furnish security within a specified period or show cause as to why such security should not be furnished. Only upon failure to comply with such direction may the Court proceed with the subsequent legal steps for attachment of the property.

The Court further observed that the concerned Artha Rin Adalat had passed the attachment order without properly considering the relevant provisions of the Code of Civil Procedure. An order made without compliance with the mandatory statutory requirements cannot be sustained in law.

Ultimately, the High Court made the Rule absolute and set aside the earlier attachment order. However, the Court clarified that the bank would remain at liberty to file a fresh application for attachment of property, provided that the procedures prescribed by law are duly followed.

Legal Takeaway

Under Order XXXVIII, Rules 5 and 6 of the Code of Civil Procedure, attachment of a defendant's property before judgment is not an automatic remedy. Such an order requires the Court to be satisfied that the defendant is attempting to dispose of or remove their property from the jurisdiction of the Court with the intention of obstructing or delaying the execution of a potential decree.

Furthermore, the defendant must be afforded a proper opportunity to furnish security or show cause. Any attachment order passed without satisfying these mandatory legal requirements is legally unsustainable.

Case Details:

• Case Number: Writ Petition No. 2498 of 2026.
• Court: High Court Division, Supreme Court of Bangladesh.
• Bench: Justice Md. Mujibur Rahman Miah and Justice Rezaul Karim.
• Counsel for the Petitioner: Advocate Taisir Haque.
• Counsel for the Bank: Advocates Margub Kabir and Taisir Mahmud.

Source: Kalbela