High Court Division · Special Original Jurisdiction
Touhidul Islam Chaudhury v Artha Rin Adalat No. 5, Dhaka and others
Writ Petition 2498/2026 · Rule made absolute; attachment order struck down · Decided 9 July 2026
A bank sued eight defendants, including the petitioner as defendant No. 7, in the Artha Rin Adalat No. 5, Dhaka, claiming about Tk. 148 crore. The bank applied under Order XXXVIII rule 5 read with section 151 of the Code of Civil Procedure to attach defendants' property before judgment, and on 18.11.2025 the Adalat allowed the applications, reasoning that the defendants had not denied taking the loan and a decree was likely. The petitioner challenged that order under Article 102 of the Constitution. The High Court Division held that the bank's expression of apprehension did not meet the requirements of clauses (a) and (b) of rule 5(1), that the Adalat had not directed the defendant to furnish security or show cause, so rule 6 was also violated, and that no estimated value of the property had been asserted. It rejected the bank's allegation of fraud in obtaining the stay. The Rule was made absolute and the attachment order was struck down, with liberty to the bank to apply afresh.
- Whether an Artha Rin Adalat may order attachment before judgment under Order XXXVIII rule 5 of the Code of Civil Procedure without a strong assertion that the defendant is about to dispose of or remove the property.
- Whether an order of attachment is sustainable where the court did not first direct the defendant to furnish security or show cause why security should not be furnished.
- Under Order XXXVIII rule 5(1)(a) and (b) of the Code of Civil Procedure, there must be an assertion of the plaintiff's apprehension that the defendant is about to dispose of or remove the property, and unless a strong assertion is made the court has no scope to order attachment.
- Rule 5 mandatorily requires the court to direct the defendant either to furnish security on the estimated value of the property or to show cause why security should not be furnished, and failure to do so means rule 6 is also violated.
- An attachment order passed without these legal requirements, and without any estimated value of the property being asserted, cannot be sustained in law.
- The bank's allegation that the petitioner practised fraud in obtaining the stay did not stand, as he had admitted the mistake and applied for correction and for addition of a party.
- The impugned attachment order was struck down, with liberty to the bank to file a fresh application, and the interim stay was recalled and vacated.
So, until and unless, a strong assertion about disposing of the property by the defendant is made in the application, the court has got no scope to pass any order of attachment.
