Attachment before judgment requires prima facie claim and risk of defeat; business assets cannot be attached mechanically.

Attachment before judgment under Order XXXVIII Rule 5 CPC requires a prima facie satisfaction that the plaintiff has a credible claim and that the defendant is seeking to defeat execution by disposing of property. The power is drastic, must be used sparingly, and cannot be employed to convert an unsecured claim into a secured one. As the trial court did not record the necessary prima facie finding on the suit claim and did not properly assess the effect of attaching business assets, the security order and consequential attachment were set aside and the matter was remanded for fresh consideration.

---

---

Issues: Whether the order directing the defendant to furnish security and the consequential attachment before judgment under Order XXXVIII Rule 5 of the Code of Civil Procedure was sustainable without a prima facie finding on the plaintiff's claim and without proper consideration of the nature of the properties sought to be attached.

Analysis: The conditions for invoking attachment before judgment require a prima facie satisfaction that the plaintiff has a real prospect of success and that the defendant is about to dispose of property with intent to obstruct or delay execution. The power is drastic and must be exercised sparingly, not mechanically, and not as a means of converting an unsecured debt into a secured debt. The order passed by the court below did not record the necessary prima facie satisfaction on the merits of the suit claim, and it was also passed without properly considering that attachment of the listed business assets would effectively shut down the defendant's business.

Conclusion: The order directing security and the consequential attachment were unsustainable and were set aside.

Final Conclusion: The matter was remanded to the court below for fresh consideration on the defendant's counter and for passing appropriate orders on merits.

Ratio Decidendi: Before ordering attachment before judgment, the court must be prima facie satisfied both that the plaintiff has a credible claim and that the defendant is attempting to defeat execution, and the discretion must be exercised with due regard to the impact of attachment on the defendant's business assets.

---