For Examination purposes Only – by Ujwala, Faculty of Law

SYNOPSIS: ARREST BEFORE JUDGMENT – ORDER 38

General rule: party arrested after decree passed, executed, failed to comply
Exception: special circumstances, creditor apply for arrest of debtor before decree and judgment
Grounds of application for arrest before judgment (Rule 1):
i. Defendant absconded or left court jurisdiction, with intent to delay court proceedings
or obstruct/delay execution of decree
ii. Defendant about to abscond or leave court jurisdiction, with intent to delay court
proceedings or obstruct/delay execution of decree
iii. Defendant disposed / removed his property from court jurisdiction, with intent to delay
court proceedings or obstruct/delay execution of decree
iv. Defendant about to leave India under circumstances to obstruct/delay plaintiff in
execution of decree
Procedure:
➢ Plaintiff apply for arrest of defendant, establish that suit bona fide; and possibility of real
damage if defendant removes self / property from court jurisdiction.
➢ Court issue showcause notice to defendant to show why he should not be asked to furnish
security for his appearance.
➢ If court not satisfied by defendant, court order defendant to furnish security.
Security for appearance (Rule 2): money or surety (rule 3)
➢ On failure to furnish security, defendant arrested and detained in civil prison till decree executed
/ suit disposed (Rule 4)
➢ Plaintiff to deposit subsistence allowance for detention of defendant in prison (section 57)
No arrest in following cases:
• woman in suit for payment of money (section 56)
• suit for immovable property under section 16(a) – 16(d)
• member of legislature bodies/committee during continuance of meeting
• judicial officer on the way to, from or while presiding in court (section 135)
Release from detention:
• when suit disposed
• if security furnished or warrant amount paid
• on serious illness
• failure to pay subsistence allowance
• on request of plaintiff
Order of arrest before judgment – appeal and revision allowed (Order 43 Rule 1)
Section 95: wrongful arrest or arrest on insufficient grounds
Chelsea Mills v Chorus Girls Inc AIR 1991 Del 129
Nidhi Dhawan v Sunil Dhawan 1996 AIHC 4973 (Del)

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