Explain Arrest before Judgment and Attachment before judgment.

Question: Explain Arrest before Judgment and Attachment before judgment.

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Answer

Order 38 of the Code of Civil Procedure (‘the Code’) provides for arrest and attachment before judgment. These powers work to secure the presence of the defendant and or ensure there are available assets against which the plaintiff can proceed before the judgment is delivered by the court, so that the plaintiff may execute the decree.

Order 38, Rules 1-4 cover arrest before judgment, while Rules 5-13 cover attachment before judgment. The Court is empowered to pass such orders under Section 94 (a), (b), and (c) of the Code which mentions supplemental proceedings.

Order 38 Rules 1-4: Arrest before the judgment

1. Where defendant may be called upon to furnish security for appearance: Rule 1

This Rule applies in cases where the court is satisfied that the defendant, has an intent to delay the plaintiff or avoid any process or to obstruct or delay the execution of any decree that could be passed against the same. The court has the discretion to issue a warrant for the arrest of the defendant to bring him before the court to show cause why he should not furnish security of his appearance.

This includes cases where:

1. “Has absconded or left the local limits of the jurisdiction of the Court, or
2. Is about to abscond or leave the local limits of the jurisdiction of the Court his property or any part thereof, or
3. As disposed of or removed from the local limits of the jurisdiction of the Court his property or any part thereof”

Where the defendant is about to leave India, creating a reasonable probability that any decree that may be passed against him in the suit will be obstructed or delayed, the Court may issue a warrant to arrest the defendant and bring him before the Court to show cause why he should not furnish security, for his appearance.

The proviso to this Rule states that the defendant shall not be arrested if he pays to the officer entrusted with the execution of the warrant, any sum specified in the warrant as enough to satisfy the plaintiff’s claim.

It is important to note that no arrest before judgment is allowed in case of a suit for land or immovable property as specified under Section 16, clauses (a) to (d).

2. Security: Rule 2

The subsequent rules under Order 38 deal with the procedure to be followed after arrest and production of the defendant before the court. According to this Rule 2, if the defendant is unable to adequately show cause then the court is mandated to order the same to deposit monies in money in the form of property or to provide sureties for his appearance pendente lite.

Such sureties once made by the defendant under this rule shall bind him, such that if he fails to appear during the proceedings, to pay any sum of money which the defendant may be ordered to pay in the suit.

3. Procedure on application by a surety to be discharged: Rule 3

In case a surety for the appearance of the defendant wishes to be discharged from his obligation, he may apply to the Court at any time indicating the same. When such an application is submitted by the surety, the Court may summon the defendant to appear or may issue a warrant for his arrest in the first instance itself.

The court shall direct the surety discharged from his legal obligation on the appearance of the defendant responding to the summons or warrant or voluntary surrender. The Court would then ask the defendant to find fresh security.

4. Procedure where the defendant fails to furnish security or find fresh security: Rule 4

In case the defendant is unable to furnish security as provided in Rule 2 or find fresh security pending a former surety being discharged of his obligation as provided in Rule 3, then he can be committed to the civil prison until the decision of the suit or, where a decree is passed against the defendant. However, there are certain conditions to the terms of this civil imprisonment.

They are as follows: The detention cannot exceed 6 months. The detention cannot exceed six weeks when the amount or value of the subject matter of the suit does not exceed fifty rupees. The detention must immediately end once he has complied with the order.

Order 38 Rules 5-13: Attachment Before Judgment

The sole objective of attachment before judgment is to give an assurance to the plaintiff that the decree that will be ultimately passed in his favor shall not be rendered infructuous.

1. Where defendant may be called upon to furnish security for production of property: Rule 5

Where the court is satisfied that the defendant with the intention of obstructing or delaying the execution of any decree which may be passed against him, is about to dispose of his property wholly or partially or remove it from its local limits, then the court may direct the defendant to, either furnish security in such sum as may be specified by the court or to produce as directed, the said property or the value thereof or such portion as may be required to satisfy the decree or to appear and show cause why he should not furnish security.

Sub-rule (2) provides that the plaintiff must specify the property to be attached and its estimated valuation. Sub-rule (3) further empowers the court to direct conditional attachment of the specified property.

2. Attachment where cause not shown or security not furnished: Rule 6

This provision states that where the defendant fails to show proper cause as to why he could not furnish requisite security, or fails to furnish the security required within the fixed time, the Court may order that the specified property, wholly in part or such portion thereof as appears sufficient to satisfy any decree which may be passed in the suit, to be attached.

However, where the defendant shows such cause or furnishes the required security, and the property specified or any portion of it has been attached, the Court shall order the attachment to be withdrawn or make such other order as it thinks fit.

3. Mode of making attachment: Rule 7

The attachment of property must be made in the manner provided for the attachment of property in execution of a decree under Rule 7.

4. Adjudication of claim to property attached before judgment: Rule 8

This rule provides that when any claim is preferred or made in relation to a suit property prior to judgment, then the claim shall be adjudicated in the manner provided for claims of such nature, and shall be executed along with the final decree, as payment of money due on such claim

5. Removal of attachment when security furnished or suit dismissed: Rule 9

According to Rule 9, the court is mandatorily obliged to order the withdrawal of the attachment of a property, when the defendant is able to furnish the required security or when the suit is dismissed in cases where the attachment has been made before judgment.

6. Attachment before judgment not to affect rights of strangers, nor bar decree-holder from applying for sale: Rule 10

Attachment before judgment does not affect the rights of strangers, nor bar decree-holder from applying for sale. Such attachment shall not affect such rights were existed prior to the attachment.

7. Property attached before judgment not to be re-attached in the execution of decree: Rule 11

Where the property which is under attachment under provisions of Order 38 and a decree is later passed in favor of the plaintiff, it shall not be necessary upon an application for execution of such decree to apply for a re-attachment of the property.

8. Provisions applicable to attachment: Rule 11A

This provision was inserted via amendment in 1976 and clarifies the provisions which are applicable to attachment under the code. Sub-rule (1) states that the provisions of the Code that apply to an attachment made in execution of a decree shall also apply to an attachment made before judgment is delivered, which continues after the judgment as well, following Order 38, Rule 11.

Sub-rule (2) states that an attachment made before judgment in a suit that ends up being dismissed for default shall not be revived for the mere reason that the dismissal has been subsequently set aside and the suit has been restored.

9. Agricultural produce not attachable before judgment: Rule 12

According to this rule, agricultural produce and production of such products cannot be attached before judgment.

10. Small Cause Court not to attach immovable property: Rule 13

The Code does not empower a court of small causes to make any order for attachment of immovable property under this Order.

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