This article titled ‘Arrest Before Judgment and Attachment Before Judgment (Order 38).’ is written by Devanjali Banerjee and discusses Order 38 of the Code of Civil Procedure. I. Introduction Order 38 of the Code of Civil Procedure, 1908 lays out the appropriate procedure for a court to order the arrest and attachment of the defendant and disputed properties: this… Read More »

This article titled ‘Arrest Before Judgment and Attachment Before Judgment (Order 38).’ is written by Devanjali Banerjee and discusses Order 38 of the Code of Civil Procedure. I. Introduction Order 38 of the Code of Civil Procedure, 1908 lays out the appropriate procedure for a court to order the arrest and attachment of the defendant and disputed properties: this is done in order to prevent the defendant’s attempts to defeat the execution of a decree. Thus, the Court may issue...

This article titled ‘Arrest Before Judgment and Attachment Before Judgment (Order 38).’ is written by Devanjali Banerjee and discusses Order 38 of the Code of Civil Procedure.

I. Introduction

Order 38 of the Code of Civil Procedure, 1908 lays out the appropriate procedure for a court to order the arrest and attachment of the defendant and disputed properties: this is done in order to prevent the defendant’s attempts to defeat the execution of a decree.

Thus, the Court may issue a warrant for the arrest of the defendant, show cause for security, and attach his properties in case of violation of the stipulated procedure. The Court may also commit the guilty person to civil prison.

In ordinary cases, the property of a defendant may be attached or he may be arrested only in the process of executing a decree. However, in situations where the defendant attempts to defeat the execution of such a decree, the Court is empowered to issue an order for the arrest of a defendant, compel the same to provide security and attach his properties for failing to furnish security.[1]

Order 38 of the Code of Civil Procedure (‘the Code’) provides for arrest and attachment before judgement. 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.

II. Arrest Before Judgment and Attachment Before Judgment : An Extraordinary Remedy

As may be expected by the severe nature of the remedy, the power of arrest and attachment before judgment is an extraordinary remedy and is to be applied, if at all, sparingly and with due caution.[2] The process cannot be used as a form of punishment by the plaintiff, or as a form of leverage to coerce the defendant to comply with his terms.[3]

Such a situation was witnessed in Sardar Govindrao Mahadik v. Devi Sahai, wherein the appellant mortgagor had taken out a loan against his property and had committed the same to the respondent mortgagee.[4]

Subsequently, the mortgagor sold the property to the mortgagee but the deed was not registered. The mortgagor then tried to sell the same property to a new buyer, and the new buyer and mortgagor filed a suit against the respondent for the redemption of the property.

However, the trial court found against the mortgagee as the sale deed though executed, was not registered and the transaction was held to be not complete. Another party then filed a suit against the mortgagor for recovery of a debt and obtained attachment of the earlier suit property before judgment.

The suit ended with the decree in this party’s favour, and as there were no other bidders at the auction the decree holder’s bid for the suit property was accepted. The High Court then allowed the decree-holder to be impleaded as a respondent in the mortgagee’s pending appeal against the mortgagor. The Supreme Court finally held that-

“…where the auction purchaser was none other than the decree-holder who purchased the property for a meagre sum, this results in an atrocious situation, but yet by a technicality he wants to protect himself. To such an auction purchaser, who is not a stranger and who is none other than the decree-holder, the Court should not lend its assistance.”

Thus, it is evident that the use of the power of attachment and arrest must not function as a way to coerce a defendant or obtain some advantage in a suit that defeats the ends of justice.

III. Application of the power to arrest or attach before the judgment

A plaintiff may, at any stage of a suit, apply for the arrest of the defendant before the judgment is passed against him.[5] Similarly, he may apply for an attachment of property before judgment. Such an application may be made at any time the plaint is admitted, even before service of summons upon the defendant. [6]

However, if arrest and attachment upon the defendant are made upon insufficient grounds the law provides compensation to the defendant for an amount not less than Rs. 50,000.[7]

The Code provides for a specific provision in Section 95 to cater to an aggrieved defendant who has been arrested or has the property in his possession been attachment before judgment for insufficient reasons. It is open to such a person to seek an independent suit for damages for expense or injury to the person or his reputation.[8]

IV. 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, having 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:

“(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 his property or any part thereof, or
(iii) has disposed of or removed from the local limits of the jurisdiction of the Court his property or any part thereof”[9]

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.[10]

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.[11]

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).[12]

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.[13]

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.[14]

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.[15] 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.[16]

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.[17] The Court would then ask the defendant to find fresh security.[18]

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.[19] However, there are certain conditions to the terms of this civil imprisonment. They are as follows:

  1. The detention cannot exceed 6 months,
  2. The detention cannot exceed six weeks when the amount or value of the subject-matter of the suit does not exceed fifty rupees,
  3. The detention must immediately end once he has complied with the order.[20]

Moreover, it has been held by the Delhi High Court, that a woman cannot be arrested or detained in civil prison under Order 38 in case of a suit for recovery of money.[21] In that case, the suit was filed by the plaintiff for recovery of the price of the goods and interest accrued thereon by the defendant for the supply of readymade garments.

The plaintiff stated that the defendant did not seem to have the intention to pay the outstanding amount due her, and was fearing that she may leave India to delay the realization of the outstanding amount. Thus, the plaintiffs prayed for a warrant of arrest of the female defendant so that she may not leave the country, under Order 38 of the Code.

Thereafter, the female defendant was arrested and produced before a judge, after which she furnished the required security. However, in its judgment, the court held that a woman could not be arrested or detained in civil prison under Rule 1, Order 38 of the Code, because it would violate Section 56 of the Code, which holds that there is a prohibition of arrest or detention of a woman in execution of the decree for payment of money.[22]

V. 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 favour shall not be rendered infructuous.[23]

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.[24]

Sub-rule (2) provides that the plaintiff must specify the property to be attached and its estimated valuation.[25] Sub-rule (3) further empowers the court to direct conditional attachment of the specified property.[26]

However, a conditional order of attachment does not imply that the defendant loses his right to show cause or furnish security[27]the defendant in fact would have a right to appear and show cause against it.[28] An order of attachment made in violation of the requirement shall be void according to Sub-rule (4) because an order passed without giving reasons is an illegal order.

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. [29]

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. These principles are to be strictly followed by the court and if the provisions of Order 38 are not adhered to and if the court acts in breach of the same, such an order of the court will have to be ignored as the result of dereliction of duty.[30]

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.[31]

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.[32]

The order by a court to attach property before judgment without giving the defendant to furnish security has been held to be void.[33]

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

Attachment before judgement does not affect the rights of strangers, nor bar decree-holder from applying for sale. Such attachment shall not affect such rights were existing 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 favour 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.[34]

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.[35]

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.[36]

9. Agricultural produce not attachable before judgment: Rule 12

According to this rule, agricultural produce and production of such produce cannot be attachment before judgment.[37]

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.[38]

VI. Conclusion

Arrest and attachment before judgment are extraordinary remedies detailed under Order 38, Rules 1-4 and Rules 5-13 that are to be followed strictly by courts in applicable civil proceedings. The above article has discussed the various provisions with reference to case-law where necessary.


References

[1] D.F. Mulla, Mulla the Key to Indian Practice: Summary of the Civil Procedure Code, 11th ed., 2016.

[2] Ibid.

[3] Sardar Govindrao Mahadik vs. Devi Sahai, AIR 1982 SC 989.

[4] Ibid.

[5] Supra, at note 1.

[6] Ibid.

[7] Section 95(1) of the Code of Civil Procedure, 1908.

[8] Supra, at note 7.

[9] Order 38, Rule 1(a), the Code of Civil Procedure, 1908.

[10] Order 38, Rule 1(b), the Code of Civil Procedure, 1908.

[11] Order 38, Proviso, Rule 1, the Code of Civil Procedure, 1908.

[12] Supra, at note 9.

[13] Order 38, Rule 2(1), the Code of Civil Procedure, 1908.

[14] Order 38, Rule 2(2), the Code of Civil Procedure, 1908.

[15] Order 38, Rule 3(1), the Code of Civil Procedure, 1908.

[16] Order 38, Rule 3(2), the Code of Civil Procedure, 1908.

[17] Order 38, Rule 3(3), the Code of Civil Procedure, 1908.

[18] Ibid.

[19] Order 38, Rule 4, the Code of Civil Procedure, 1908.

[20] Order 38, Proviso, Rule 4, the Code of Civil Procedure, 1908.

[21] Mschelska Mills Mothers vs. Chorus Girl Inc., AIR 1991 Del 129.

[22] Ibid.

[23] Govindram v. Devi, AIR 1982 SC 989.

[24] Order 38, Rule 5(1), the Code of Civil Procedure, 1908.

[25] Order 38, Rule 5(2), the Code of Civil Procedure, 1908.

[26] Order 38, Rule 5(3), the Code of Civil Procedure, 1908.

[27] Supra, at note 1.

[28] Shalimar Rope Works Ltd. vs. N. C. John and Sons Ltd., 1986 Ker LJ 1051.

[29] Order 38, Rule 6(1), the Code of Civil Procedure, 1908.

[30] RBM Pati Joint Venture vs. Bengal Builders, AIR 2004 Cal 58.

[31] Order 38, Rule 8, the Code of Civil Procedure, 1908.

[32] Order 38, Rule 9, the Code of Civil Procedure, 1908.

[33] Supra, at note 30.

[34] Order 38, Rule 11, the Code of Civil Procedure, 1908.

[35] Order 38, Rule 11A (1), the Code of Civil Procedure, 1908.

[36] Order 38, Rule 11A (2), the Code of Civil Procedure, 1908.

[37] Order 38, Rule 12, the Code of Civil Procedure, 1908.

[38] Order 38, Rule 13, the Code of Civil Procedure, 1908.


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Updated On 2021-12-16T06:56:25+05:30
Devanjali Banerjee

Devanjali Banerjee

West Bengal National University of Juridical Sciences

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