Section 10 CPC does not bar interlocutory relief, while attachment before judgment needs specific evidence of intent to defeat execution.

Section 10 of the Code of Civil Procedure, 1908 bars the trial of a suit when the same matter is directly and substantially in issue in a prior suit, but it does not prevent interlocutory relief such as injunction, receiver, or attachment before judgment. Attachment before judgment under Order XXXVIII, Rule 5 requires specific material showing that the defendant intends to obstruct or delay execution by removing or disposing of property; vague allegations are insufficient and further evidence may be needed before ex parte relief. On the stated facts, the materials did not establish the requisite intent, so the attachment was set aside and security discharged.

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Issues: (i) Whether a stay of trial under Section 10 of the Code of Civil Procedure, 1908 bars the making of interlocutory orders; (ii) Whether the requirements for attachment before judgment under Order XXXVIII, Rule 5 of the Code of Civil Procedure, 1908 were satisfied.

Issue (i): Whether a stay of trial under Section 10 of the Code of Civil Procedure, 1908 bars the making of interlocutory orders.

Analysis: Section 10 prohibits the Court from proceeding with the trial of a suit where the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties. That restriction does not extend to interlocutory orders made in aid of the suit, such as orders for receiver, injunction, or attachment before judgment.

Conclusion: The stay under Section 10 did not prevent the Court from passing interlocutory orders.

Issue (ii): Whether the requirements for attachment before judgment under Order XXXVIII, Rule 5 of the Code of Civil Procedure, 1908 were satisfied.

Analysis: An order under Order XXXVIII, Rule 5 can be made only when the Court is satisfied that the defendant, with intent to obstruct or delay execution of the decree that may be passed, is about to remove property from the jurisdiction or otherwise act within the rule. Vague allegations are insufficient, and further evidence should be sought before making an ex parte order. On the facts, the materials did not establish such intent, while the defendants produced evidence showing they were substantial merchants and were not disposing of property to defeat execution.

Conclusion: The requirements of Order XXXVIII, Rule 5 were not met and the attachment before judgment ought to have been discharged.

Final Conclusion: The attachment before judgment was set aside, the security was discharged, and the appellants succeeded with costs.

Ratio Decidendi: A stay of trial under Section 10 does not bar interlocutory relief, and attachment before judgment can be ordered only on specific evidence showing an intent to obstruct or delay execution of the decree.

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