Order 38 CPC - Code of Civil

Procedure - ARREST AND

ATTACHMENT BEFORE
JUDGMENT
Provisions Relating To Attachment And Arrest Before
Judgment
The main objective of justice and judicial procedure is to protect preserve and enforce the
rights of parties. This is done through the judgment and decree. So long as judgment and
decree are not executed, they are meaningless. Many times, the defendant try to defeat the
execution of judgment and decree of the court. Before judgment, they make such a plan
such as consumption of property, transferring it elsewhere or running away.

When the defendant becomes successful in doing this, the decree of court becomes
meaningless. Therefore, to defeat such plan of the defendant, provision has been made
under order 38 of Civil Procedure Code 1908 for arrest and attachment before judgment.

1. Arrest before judgment:

 
1. Under rules 1 to 4 of order 38 of the code, provision has been made for arrest
before judgment.

a. Demand for security- when at any stage of the case, if it appears from
the affidavit of the court or otherwise that the defendant with the
intention of:

i. delaying the trial of the suit;

ii. avoiding the order of the court;
iii. creating obstacles in the execution of the decree being passed
against him:

 has run away

 about to run away
 has left the jurisdiction of the court; or
 about to leave the jurisdiction of the court; or
 remove the property from the jurisdiction of the court; or
 has consumed the property or
 about to leave India so that delay or obstacle may be
caused in the execution of the decree.
 Then the court will issue warrant of arrest with the intention that
he should be brought before the court and he should explain as
to why he should not give security to the court for his
appearance.

If the defendant presents himself in the court and assures the

court that he is willing to give security or deposits the amount of
claim of the plaintiff in the court, he will not be arrested and the
warrant of arrest will be cancelled. (order 38, Rule 1).

In Chimanlal Vs Radhy Shayam (1972 JIJ 36), it has been

said that for the purpose of rule 1, it is not sufficient to give
security, but the security must be sufficient.
 

b. Procedure when be becomes unsuccessful in giving security- if the

defendant remains unsuccessful in giving the desired security then
under Rule 4, order 38, the defendant will be put to civil prison till:

i. The case is decide finally; or

ii. If the decree has been passed against the defendant, the
decree is not satisfied.

The period of detention in civil prison will not exceed six weeks if the value of suit
does not exceed Rs. 50/- and six months, in other cases.

It is to be mentioned that in case of suits for recovery of money, no woman can be

arrested. (M/s Chelsia Mills V/s M/s Choras girl, A.I.R. 1991, Delhi 129).
It is to be mentioned here that in case of suits instituted under section 16 of the code,
no order of arrest can be passed before judgment in the following cases:

ii. suit for re-possession of immoveable property;

iii. suit for partition of immoveable property;
iv. suit of prohibition or redemption or for redemption of mortgage of such
immoveable property;
v. suit for acquiring rights for benefits in any immoveable property;
vi. suit for sale of immoveable property; and
vii. Suit for creating charge on immoveable property. (Order 38, Rule 1 and
section 16).
 
Attachment before judgment
The second method of defeating the obstacles to be created by the defendant in
execution of decree is passing order by the court for attachment of the property
before judgment. Provision has been made in this regard under rules 5 to 13 or order
38 of the code.
a. Demand for Security: under Rule 5, order 38 of the code, if the court comes
to the conclusion at any stage of the suit either from the affidavit or otherwise,
that the defendant with the intention of creating obstruction in the execution of
decree passed against him:

i. intends to consume his property; or

ii. about to remove that property from the jurisdiction of the court;
then the court will direct the defendant that he should explain why
security should not be taken from him he should surrender that
property or its value or any portion of it at the disposal of the court or
to give security for that (Sub rule 2 of Rule 5).

It is to be mentioned that until the court gives direction or passes

orders otherwise, the plaintiff can make demand for attachment of the
property (Sub-rule 2, Rule 5)
Further, the court can pass order for conditional attachment of any
property (Sub-rule 3 of Rule 5).
 
b. Procedure in case the defendant remains unsuccessful in giving
security:
when the defendant remains unsuccessful in submission of proper security or
could not show any cause for it, then court under Rule 6, Order 38, will attach
the property or any portion of it which can satisfy the claim of the plaintiff
(Sub-rule 1, Rule 6).

But during this period, if cause is shown by the defendant or security is given,
then the court will withdraw such order (Sub-rule 2 of Rule 6).

Thus under rules 5 and 6 of Order 38 of the code, provision has been made
for attachment of property before judgment.

The provision of rule 5, order 38 are mandatory. In Poldhar Rolling Mills

Pvt. Ltd. Vs Vishvasaraiyya Iron and Steel Company Ltd. (A.I.R. 1985,
Karnataka 282), has been decided by the court that before passing orders for
attachment by any court, it should be ascertained that strong possibility exists
of creating obstacles in the execution of the decree by the defendant.

The plaintiff will have to prove that the defendant will create obstacles in the
execution of decree (Tatanagar Transport corporation vs M/s Ajanta
Enterprises, A.I.R. 1987, Orissa 107).

In M/S K.C.V. Airways limited Vs Wing Commander R.K. Balgana (A.I.R.

1998, Delhi 70), it has been decide that the order for attachment before
judgment cannot be issued so long as all the conditions of Rule 5, Order 38
are fulfilled.