Arrest before Judgment

Where at any stage of a suit, excepting suits respecting any immovable property referred to in
S. 16, clauses (a) to (d), the court is satisfied, by affidavit or otherwise,-

(a) That the defendant, with intent to delay the plaintiff, or to avoid any process of the court
or to obstruct or delay the execution of any decree that may be against him,

(i) Has absconded or left the local limits of the jurisdiction of the court, or

(ii) Is about to abscond or leave the local limits of the jurisdiction of the court, or

(iii) Has disposed of or removed from the local limits of the jurisdiction of the court his
property or any part thereof, or

(b) That the defendant is about to leave India under circumstances

affording reasonable probability that the plaintiff will or may thereby be obstructed or
delayed in the execution of any decree that may be passed against the defendant in the suit,
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 defendant shall not, however, be arrested if he pays to the officer entrusted with the
execution of the warrant any sum specified in the warrant as sufficient to satisfy the
plaintiff’s claim. (Order XXXVIII, Rule 1)

Security
Where the defendant fails to show such cause the court shall order him either to deposit in
court money or other property sufficient to answer the claim against him or to furnish
security for his appearance at any time when called upon while the suit is pending and until
satisfaction of any decree that may be passed against him in the suit. (Order XXXVIII, Rule
2).

Where the defendant fails to deposit in court money or other property sufficient to answer the
claim against him or to furnish security for his appearance, the court may commit him to the
civil prison until the decision of the suit, or where a decree is passed against the defendant,
until the decree has been satisfied.
No person shall be detained in prison for a longer period than six months if the amount or
value of the subject-matter exceeds Rs. 50, nor for a longer period than six weeks when the
amount or value of the subject-matter of the suit does not exceed Rs. 50. (Order XXXVIII,
Rule 4).

Attachment before judgment:

Where at any stage of a suit, the court is satisfied, by affidavit or otherwise, that the
defendant, with intent to obstruct or delay the execution of any decree that may be passed
against him,

(a) Is about to dispose of the whole or any part of his property, or

(b) Is about to remove the whole or any part of his property from the local limits of the
jurisdiction of the court, the court may direct the defendant within fixed time, either to
furnish security, in such sum as may be specified in the order, to produce and place at the
disposal of the court, when required, the said property or the value of the same, or such
portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he
should not furnish security. [Order XXXVIII, Rule 5 (1)].

If an order of attachment is made without complying with the provisions of sub-rule (1) of
Rule 5, such attachment shall be void. [Order XXXVIII, Rule 5 (1)].

Attachment before judgment of movables could be ordered:

Where in an attachment before judgment, in suit for recovery of dues, application was filed
by plaintiff for directing defendant to furnish the security. But defendant had failed to do so.
Part of suit claimed was admitted and there was refusal to pay admitted amount by
defendants.

Held, that attachment before judgment of movables could be ordered as defendant was
alleged to have delayed payment and with a view to defeat payment of amount to creditors
including plaintiff had made attempt to part with their immovable and movable properties.

Order of attachment when cannot be legal:

An order of attachment passed before judgment without any opportunity to defendant to
defend it would be illegal and unsustainable.
Where the defendant fails to show cause why he should not furnish security, or fails to
furnish the security required, the court may order the attachment of the property as may be
sufficient to satisfy the decree. Where, however, the defendant shows such cause or furnishes
the required security, the court shall order the attachment to be withdrawn, if the property has
already been attached. (Order XXXVIII, Rule 6). The attachment order shall also be
withdrawn if the suit is dismissed. (Order XXXVIII, Rule 9).

Failure of court, which passed order of attachment of property not situated within its
jurisdiction, to send said order to District Courts within whose jurisdiction attached property
is situated, would not invalidate order of attachment.

Under Order XXXVIII, Rule 5 of the Code, the court has first to ask the appellants to furnish
security and only after they fail to furnish security, conditional order of attachment can be
made. Order XXXVIII, Rule 5 is a mandatory provision, and the court has to satisfy itself
first that the defendant is intending to obstruct or delay the execution of the decree that may
be passed against him.

If the order passed by the court does not speak or show that the court has applied its mind to
the requirements of Order XXXVIII, Rule 5, or if the order passed by the court does not
clearly show that it has considered the material on record, or if the order does not show that
the court is satisfied that the defendant with intent to obstruct or delay the execution of the
decree that may be passed against him is about to dispose of the whole or any part of the
property, the order would be in violation of Order XXXVIII, Rule 5. Order XXXVIII, Rule 5
as it stood before the amendment in 1976, would have at the most rendered such order
irregular; but, now, sub-rule (4) inserted by Act of 1976 reads that if an order of attachment is
made without complying with the provisions of sub-rule (1) of Rule 5 of Order XXXVIII,
such attachment shall be void. Sub-rule (4) has been inserted with a view to see that the
courts do not pass such an extraordinary order in the cavalier manner end without satisfying
themselves about the requirement of Order XXXVIII, Rule 5.

The simple reproduction of the language used in Order XXXVIII, Rule 5 will not meet the
requirements of Order XXXVIII, Rule 5 of the Code. Unless the court is satisfied with the
material on record with the requirements of Order XXXVIII, Rule 5, the court shall not
hasten to pass an order for attachment.
Since Order XXXVIII, Rule 8, directs that adjudication of claims to property attached before
judgment should be done in the same manner as an adjudication of claim against attachment
of the property in execution of a decree, Order XXI, Rules 58 and 63, Civil Procedure Code
will automatically apply to the claims made against an order of attachment before judgment.

The remedy of an attachment before judgment is an extraordinary remedy and should be

granted with the utmost care and caution.

Section 141 of the Code provides that “the procedure provided therein in regard to suits shall
be followed, as far as it can be made applicable, in all proceedings in any Court of civil
jurisdiction”. The Explanation amplifies the doubt that the expression “proceedings” includes
proceedings under Order IX, but does not include any proceeding under Article 226 of the
constitution.

It would thus be clear that the proceedings envisaged for adjudication under Order XXXVIII,
Rule 8, read with Order XXI, Rule 58 is a civil proceeding. When attachment of the
properties has been made before the judgment, they become part of the civil proceedings in
the suit. Thereby they become part of the decree.

case laws

Subhash Bhimashankar Kalase v SBI AIR 2005 Bom 165, The court held that before
exercising jurisdiction under rule 5 and passing orders for the attachment of properties
before judgment, the court must satisfy itself of the practical certainty zof the plaintiff’s
success and of the existence of a grave danger that the defendant is doing all things with
dishonest intention of defeating or delaying the possible degree.

Mohinder Pal and Co. v Bharat Bhushan Jai Narayan AIR 2000 P n H 195, The court
held that an order of attachment before judgment is a drastic remedy and the power has to be
exercised with utmost care and caution, as it may be likely to ruin the reputation of the party
against whom the power is exercised

Bhagwan Das v Santosh Singh AIR 1968 P n H 461, The court held that an attachment
before judgment cannot be an attachment in execution of a decree. It can only become
an attachment in execution of a decree after the decree has been passed and after an
application to execute such a decree has been made