Difference between Temporary Injunctions and Attachment before judgment

In PRABHA SURANA vs JAIDEEP HALWASIYA, the Calcutta High Court settled the difference between Temporary Injunctions and Attachment before judgment 

The court observed that a distinction should be drawn between the provisions of Order XXXIX Rule 1 (Temporary Injunctions) and Order XXXVIII Rule 5 (Attachment before judgment). Order XXXIX Rule 1 contemplates temporary relief to a petitioner on an imminent risk to the property in dispute in the suit being wasted by certain acts of the respondent. If the Court finds from the materials before it, that the respondent intends to cause injury to the petitioner in the interregnum including by causing damage to, alienating, selling or removing the property, the Court is empowered to pass orders to prevent the property from being dealt with in such manner or in any way which is prejudicial to the petitioner until the suit is disposed of or until further orders are passed by the Court. The Court has the option to pass orders as it deems fit and on the satisfaction that circumstances warranting preservation of the property exist till the matter advances beyond the preliminary stage.

Order XXXVIII Rule 5 applies at a later stage in a suit where the petitioner seeks to execute a decree. The section, by its very description, applies to an order which lends finality to the suit and aims at preserving the state of affairs after the interim stage in the suit is over. The primary intention of the Court at this stage is to secure the petitioner against the respondent from disposing of or removing his property from the local limits of the jurisdiction of the Court.

While both sections intend to give a protective cover to the petitioner at the time of institution of and during pendency of the suit in terms of preserving the property which would afford relief to the petitioner in real terms, there is an important distinction in the nature of the property contemplated under the provisions. Under Order XXXIX Rule 1, the property sought to be preserved is ‘property in dispute in a suit’, whereas, it is the respondent’s property under Order XXXVIII Rule 5 - the words used are ‘his property’ following specific reference to ‘…the respondent, with intent to obstruct or delay…’. The distinction reinforces the need to preserve the suit property till final orders are passed in the former and to secure the petitioner for facilitating execution of a decree in the latter. Although, the terms ‘order’ and ‘decree’ can be interchangeably used depending on the nature of the application, the thrust of the two provisions, read together, is saving the suit property till the right of the petitioner is established to proceed with the suit and to save the petitioner from the decree – or the possibility thereof – being frustrated once the suit nears culmination.