High Court voids pre-judgment property attachment order passed without following mandatory CPC rules

The High Court has declared illegal an order attaching property before judgment that was passed without following the mandatory legal procedure under Rules 5 and 6 of Order 38 of the Code of Civil Procedure. A High Court Division bench struck down such an attachment order issued by an Artha Rin Adalat (money loan court).

The bench of Justice Md. Mojibur Rahman Mia and Justice Rezaul Karim delivered the verdict after the final hearing of a writ petition, making the rule absolute.

According to the case details, a bank filed a suit with the Artha Rin Adalat in Dhaka against Touhidul Islam Chowdhury and eight other defendants claiming Tk 148 crore 19 lakh 2 thousand 810. The case was later transferred and renumbered at Artha Rin Adalat No-5, Dhaka.

After the defendants filed their written statement, the bank submitted two applications under Rule 5 of Order 38 and Section 151 of the Code of Civil Procedure seeking attachment of personal property before judgment. On 18 November last year, the Artha Rin Adalat allowed the application without following due legal process and without issuing any show-cause notice.

Aggrieved by the order, one of the defendants filed a writ petition (No. 2498/2026) with the High Court Division. After a preliminary hearing, the court issued a rule nisi and stayed the operation of the attachment order. Following various legal steps, including review applications, the case came up before the bench for final hearing.

Lawyer Taisir Haque, appearing for the writ petitioner, argued that the trial court had not followed Rule 5 of Order 38 at all. Under paragraphs (a) and (b) of Rule 5(1), the specific apprehension of property transfer must be established through affidavit or evidence, which the bank had failed to do in its application. The mandatory rule requiring the defendant to be given the opportunity to furnish security or show cause before an attachment order was also completely ignored by the trial court, he said.

For the bank, lawyer Margub Kabi, assisted by lawyer Taisir Mahmud, told the court that the defendants were loan defaulters who were colluding among themselves to transfer the property, and that the trial court's attachment order was therefore lawful and correct.

After hearing both sides and reviewing the case records, the High Court said no trial court can pass such an order on mere superficial reasoning in violation of the mandatory process of satisfying the court and giving the defendant a legal opportunity. In its observation, the court said: “The court shall first direct the defendant to furnish security equal to the value of the property, or to show cause why security should not be furnished. Only if the defendant fails on both alternatives can the court order attachment.”

The court further said the Artha Rin Adalat judge passed the order in an extremely lax and unreasonable manner without properly reviewing the relevant rules or the bank's application, which is not sustainable in law. The High Court made the rule absolute and quashed the attachment order, while noting that the bank may file a fresh application if it considers it appropriate, following due legal process.