Arrest before judgment

Arrest before judgment

Order 38, Rule 1 to 4 provides for arrest before judgment and procedure to be adopted. As a general rule of procedure the creditor has to first obtain a decree from the court and then if the decree is not satisfied, the creditor can resort to execution proceedings to get fruits of the decree. Modes of arrest and attachment of judgment debtor are provided in cases of execution of decree. However, in certain situations creditor can sort arrest of judgment debtor before actual passing of judgment/decree.

Object: The object is to enable the plaintiff to realize the fruits of decree if decree is eventually passed in his favour and to prevent the defendant to defeat the execution of such decree. [Raman Tech and Process Engg. Co. Ltd. v. Solanki Traders, (2008) 2 SCC 302]

Grounds for arrest before judgment [Rule 1]: Order 38 Rule 1 empowers the court to issue a warrant to arrest against the defendant at any stage of the suit on following grounds:

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

1. Has absconded or left or is about to abscond or leave the local limits of the jurisdiction of the court, or
2. Has disposed of or removed from such jurisdiction, his property or any part thereof,

(b) That the defendant is about to leave India under circumstances affording reasonable probability that the execution of decree that may be passed against him may be obstructed or delayed.

If any of the above mentioned grounds exist 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.

Condition when arrest before judgment can be ordered: 

The court must be satisfied about the following two conditions:

(a) The plaintiff's suit must be bona fide and his cause of action must be prima facie unimpeachable subject to his proving the allegations in the plaint, and

(b) The court must have reason to believe on adequate materials that unless this extra ordinary power is exercised, there is a real danger that the defendant will remove himself or his property from the ambit of the powers of the court.

Circumstances when arrest before judgment not allowed: Order 38 Rule 1 provides that an order for arrest before judgment cannot be made in any suit for land or immovable property specified in clause (b) to (d) of Section 16 of C.P.C. 

Procedure to be followed [Rule 2-4]: Where the defendant is brought before the court to show cause why he should not furnish security and he fails to show cause, the court may order him to:

(a) Deposit in court the money or other property sufficient to answer the claim against him, or

(b) Furnish security for his appearance at any time when called upon while suit is pending and until satisfaction of decree that may be passed against him, or

(c) Pay any sum specified in the warrant as sufficient to satisfy plaintiff's claim.

Sureties: Rule 2(2) provides that every surety for defendant's appearance shall bind himself to pay such sum which the defendant may be ordered to pay in the suit if the latter defaults in appearing before the court.

Rule 3 provides that such surety may also apply to the court for his discharge as such and the court shall summon or issue warrant against the defendant to direct him to find a new security after discharging the surety from his obligations.

Failure to provide security [Rule 4]: Where the defendant fails to provide security or find new security under Rules 2 and 3, the court may commit him to civil prison until the decision of suit or until the decree passed against him has been satisfied. However, such detention shall be only for a maximum period of 6 months or, where the value of subject-matter is 50 or less than 50 rupees, for a period of 6 weeks only. If the defendant, however, complies with he order of the court, he shall not be detained in civil prison