Order 38 of CPC: ARREST BEFORE JUDGMENT [ORDER 38, RULES 1-4]

Introduction

• Generally, a creditor having a claim against his debtor has first to obtain a decree against him and
then execute the said decree by having him arrested or his property attached in execution under
the provisions of Order 21.

• Under the special circumstances, however, the creditor can move for the arrest of the debtor or
for the attachment of his property even before the judgment.

Object

The object of these provisions is to protect the interest of the plaintiff for enjoying the fruits of decree
which may be passed in his favour.

Grounds [Rule 1]

• Where at any stage of the suit, the court is satisfied, either 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 passed 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 the 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 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.

Conditions

• Before this extraordinary power can be exercised, the court must be satisfied about the following
conditions:
(i) Bon-fide and unimpeachable claim of the plaintiff.
(ii) Real danger of defendant is disposing of property or absconding from the jurisdiction of the
court.
(iii)This order cannot be issued before the presentation of plaint by the plaintiff.
Security [Rules 2-4]

a) Where the defendant fails to show cause why he should not furnish security for his appearance,
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.
b) Every surety for the appearance of a defendant shall bind himself, in default of such
appearance, to pay any sum of money which the defendant may be ordered to pay in the suit.
 c) Where the defendant fails to furnish security or to find fresh security after the original surety
has been discharged from his obligation by the court, the court may commit him to civil prison
until the decision of the suit, or, where a decree is passed against him, until the decree has been
executed.
When arrest before judgment not allowed

In the following four circumstances given under Section 16 (a) to (d) CPC, no arrest may be made before
judgment:
a) Suits for the recovery of immovable property.
b) Suits for partition of immovable property.
c) Suits for foreclosure, sale or redemption in case of a mortgage/charge upon immovable
property, and
d) Suits for the determination of any right/interest in immovable property.
Arrest on insufficient grounds [Section 95]

Where in any suit in which an order of arrest of the defendant has been obtained on insufficient grounds
by the plaintiff, or where the suit of the plaintiff fails and it appears to the court that there was no
reasonable or probable ground for instituting it, on application being made by the defendant, the court
may order the plaintiff to pay as, compensation such amount not exceeding five thousand rupees, as it
seems reasonable to the defendant for the expense or injury including injury to reputation caused to him.

Period of detention [Order 38, Rule 4]

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/-.

ATTACHMENT BEFORE JUDGMENT [ORDER 38, RULES 5-12]

Object

• The primary object for attachment before judgment is to prevent any attempt on the part of the
defendant to defeat the realization of the decree that may be passed against him.
• In Sardar Govindrao v. Devi Sahai, AIR 1982 SC, the Supreme Court observed that, the sole object
behind the order levying attachment before judgment is to give an assurance to the plaintiff that
his decree if made would be satisfied.
Grounds [Rule 5]

• 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 a time to be fixed by it, 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.
 • Where the defendant fails to show cause why he should not furnish security, or fails to furnish
the security required, within the time fixed by the court, the court may order that the property
specified, or such portion thereof as appears sufficient to satisfy any decree which may be passed
in the suit, be attached.
Principles

• It is the extra- ordinary remedy and it must be exercised sparingly and strictly. And the court must
be satisfied about the following two conditions
a) that the defendant is about to dispose of the whole or any part of his property; and
b) that the disposal is with the intention of obstructing or delaying the execution of any decree
that may be passed against him.
Mode of Attachment [Rule 7]

Rule 7 enacts that the attachment shall be made in the manner provided for the attachment of property
in execution of decree.

Exemption [Rule 12]

The court cannot order the attachment or production of any agricultural produce in possession of an
agriculturist.

Rights of Third Party [Rule 10]

An attachment before judgment shall not affect the rights existing prior to the attachment of persons not
parties to the suit.
• Under Section 40 of the Transfer of Property Act, a purchaser under a contract of sale of land is
entitled to the benefit of an obligation arising out of that contract and it provides that obligation
maybe enforced inter alia against a transferee with notice.
• Section 91 of the Trusts Act also recognizes this principle that the transferee with notice of an
existing contract of which specific performance can be enforced must hold the property for the
benefit of the party of the contract.
• The right of the attaching creditor shall not be allowed to override the contractual obligation
arising from an antecedent agreement for sale of the attached property.
• The attaching creditor cannot ignore that obligation and proceed to bring the property to sale as
if it remained the absolute property of the judgment-debtor. [V. K.Sreedharan v. C. Balakrishnan,
1991 (9) Lucknow Civil Decisions, 258]
Adjudication of claims [Rule 8]

Rule 8 provides that any claim preferred to the property attached before judgment, shall be adjudicated
upon in the manner provided for the adjudication of claims to property attached in execution of a decree
for the payment of money.

Re-attachment not necessary [Rule 11]

• Where the property is under attachment, and a decree is subsequently passed in favour of the
plaintiff, it is not necessary to apply for fresh attachment of the property in execution. (Rule 11)
• The provisions of Order 21 applicable to an attachment made in execution of a decree will also
apply to an attachment before judgment continuing after judgment. (Rule 11A)
Withdrawal of attachment [Rule 9]

An order of attachment will be withdrawn if the defendant furnishes security or the suit is dismissed.

Attachment on insufficient grounds [Section 95]

Where in any suit in which an order of attachment of the property of the defendant has been obtained
on insufficient grounds by the plaintiff, or where the suit of the plaintiff fails and it appears to the court
that there was no reasonable or probable ground for instituting it, on application being made by the
defendant, the court may order the plaintiff to pay as compensation such amount not exceeding five
thousand rupees, as it deems reasonable to the defendant for the expense or injury including injury to
reputation caused to him.

Private alienation of property void [Section 64]

• Section 64 lays down that where an attachment has been made, any private transfer or delivery
of the property attached or of any interests therein and any payment to the judgment - debtor of
any debt, dividend or other moneys contrary to such attachment shall be void as against all claims
enforceable under the attachment. The attachment, however, merely prevents and avoids private
alienation and confers no right on the attaching creditor.

• It does not invalidate a judicial sale in execution of another decree. Again, a private transfer
pending the attachment would be void only as against all claims enforceable under the particular
attachment and no other. [Ambi v. Kelan, I. L. R. 1937Mad. 979]