ARREST AND ATTACHMENT BEFORE JUDGMENT

ARREST BEFORE JUDGMENT

ORDER 38 of The Code of Civil Procedure

RULES (1-4)

RULE 1.
Where defendant may be called upon to furnish security for appearance. Where, at any stage of a suit,
other than a suit of nature referred to in section 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 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 the country (India/Bangladesh/Pakistan) 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 showcase why he should not furnish
security for his appearance: Provided 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 sufficient to satisfy the
plaintiff‘s claim, and such sum shall be held in deposit by the court until the suit is disposed of or until
the further Order of the court.

Scope of the Order

An order of arrest before judgment of defendant is to be passed only

where the plaintiff is able to make out a prima facie case;
And on the court being satisfied with the ingredients regarding possible absconding or disposal of
properties with the intent to delay or obstruct the execution of the prospective decree.

ARREST & ATTACHMENT BEFORE JUDGMENT

The jurisdiction to issue warrant and call for security is vested with the court even with regard to
foreigners, just as it is vested with the court in regard to dishonest and fraudulent Indian defendants.
And because the decree against him will have to be transmitted abroad for execution, the court is
vested with the jurisdiction to call for security. Where the judgment debtor and garnishee are situated
beyond the territorial jurisdiction of the execution court And there is no material to show that the debt
payable is within the jurisdiction of the execution court, an order prohibiting garnishees from payment
to judgment-debtor is beyond the jurisdiction of the court.
A ship touching the temporarily at an Indian port is in the same position as a foreign personnel
defendant who is about to leave the jurisdiction. If the claim against the ship is reasonably arguable,
then to the extent of the reasonably best decree obtainable by the plaintiff, the court can and should
obtain security from the ship before releasing her arrest.
REASONABLE PROBABILITY
Where the defendant is about to leave India, It is enough if the circumstances under which he is about
to leave India to afford a reasonable probability that any decree that may be passed against him in the
suit will thereby be obstructed or delayed in the execution.

SUIT MUST BE BONAFIDE

In every case when an application is made under this rule, the court must be satisfied that the suit is
bona fide.

APPEAL

An order passed under O 38, r 1, is not appealable in nature though an order under rule 2which is to be
passed when the defendant is brought before the court and where he fails to furnish security is
appealable.

RULE 2.

SECURITY.

(1) 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 the satisfaction of any
decree that may be passed against him in the suit or make such Order as it thinks fit in regard to the sum
which may have been paid by the defendant under the proviso to the last preceding rule.
(2) 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.

LIABILITY UNDER SECURITY BOND

The extent of liability of a surety on a security bond must depend on the terms thereof, and it has been
held that it should be strictly construed. On this principle, it has been held that the liability to produce
the defendant at any hearing of the suit does not import a liability to produce him at the stage of
execution of the decree.
Nor does the undertaking to produce in one court extend to producing the defendant in any other court
to which the case might be transferred.
Where the defendant gave an undertaking not to alienate a property, which happens to be mortgaged
property, the act of mortgagee to sell the property cannot lead to a breach of undertaking by the
defendant.
Where a suit dismissed for default of appearance is again restored, an order passed under O38, r 3,
becomes thereby renewed.

RULE 3.

Procedure on application by surety to be discharged.

(1) A surety for the appearance of a defendant may at any time apply to the court in which he became
such surety to be discharged from his obligation.
(2) On such application being made, the court shall summon the defendant to appear or, if it thinks fit,
may issue a warrant for his arrest in the first instance.
(3) On the appearance of the defendant in pursuance of the summons or warrant, or on his voluntary
surrender, the court shall direct the surety to be discharged from his obligation, and shall call upon the
defendant to find fresh security.

RULE 4.

Procedure where the defendant fails to furnish security or find fresh security.-Where the defendant fails
to comply with any order under rule 2 or rule 3, 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: Provided that no person shall be detained in prison under this rule in any case for a longer
period than six months, nor for a longer period than six weeks when the amount or value of the subject
matter of the suit does not exceed fifty rupees: also provided also that no person shall be detained in
prison under this rule after he has complied with such order.

ATTACHMENT BEFORE JUDGMENT: ORDER 38 RULES (5-12)

RULE 5.

Where defendant may be called upon to furnish security for production of property.-

(1) 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.
(2) The plaintiff shall, unless the court otherwise directs, specify the property required to be attached
and the estimated value thereof.
(3) The court may also in the order direct the conditional attachment of the whole or any portion of the
property so specified.
(4) If an order of attachment is made without complying with the provisions of sub-rule (1) of this rule,
such attachment shall be void.

OBJECT OF RULE 5

The main object of an attachment before judgment is to enable the plaintiff to realize the amount of
decree, if one is eventually passed, from the defendant’s property.[1]
The object is to prevent a decree from becoming infructuous.[2]
The order that is contemplated by this rule is not an unconditional one directing attachment of property,
but one calling upon the defendant to furnish security or to show cause why security should not be
furnished.[3]
Order 38, rule 5 is not be used as a lever for the plaintiff to coerce to defendant to come to terms.[1]
SCOPE OF RULE 5

An order under O 38, rule 5 can be issued only if circumstances exist as are stated therein to the
satisfaction of the court.
The affidavit in support of the contentions should not be vague and it must be properly verified.
A mere allegation that the defendant is selling off his properties is not sufficient. Particulars must be
stated.
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.[2]
Where the property sought to be attached is transferred before filing of the suit, the claim by creditor
that transfer was hit by s 53 of the Transfer of Property Act 1882 cannot be rejected on the ground that
the transferee were not made parties to the suit.[3]
The provision for attachment is not applicable where the property has already been disposed of. The
purchaser of the property has a right to object order of attachment as he was not a party to the suit and
had become the owner of the property before the filing of the suit.[4]

COURT MUST BE SATISFIED

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 of 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.[5]
The court must not only be satisfied with the material but also state the so in the order.
The plaintiff should state precisely the grounds on which the belief or apprehension can be entertained,
that the defendant is likely to dispose of, or remove the property.
That has to be some prima facie material on the basis of which the court could satisfy that the condition
requisite for making an order of attachment before judgment exist.
The circumstances that a company is in financial strain or that the debtor may be unable to pay the debt
do not warrant attachment before judgment.[1]

NOTICE TO DEFENDANT
The order of attachment should be passed after notice to defendant.[2]

PROPERTY

The expression ‘property’ includes the property of every description whether movable or immobile.
[3]The expression ‘his property’ refers to property of the defendant. However, it cannot be the joint
property of plaintiff and the defendant.

EFFECT

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.[4]
CONDITIONAL ATTACHMENT

The court has ample power to direct conditional attachment.[5] No prior notice is necessary in such
case. It is, however, open to the defendant and his right to show cause against attachment has not been
affected.[6]

PROPERTY SITUATED OUTSIDE JURISDICTION

Where the property sought to be attached is outside the local limits of the jurisdiction of the court, the
proper course to follow is to transmit the order for attachment to the court in whose jurisdiction the
property is situated.

RULE 6.

Attachment where cause not shown or security, not furnished.- (1) 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.
(2) 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.

HIGH COURT AMENDMENTS

Bombay, Goa, Daman and diu.- For the existing sub-rule (2), substitute the following:

“(2) Where the defendant shows such cause or furnishes the required security or gives an undertaking
to the Court to do or not to do a thing, 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”
(1.10.1983 and 1.4.1987).

PROPERTY SPECIFIED

The property specified is, the property specified by the plaintiff as required by r 5, sub-r (2). Such
property may be within or without the jurisdiction of the court.
If the party against whom the order is passed has never been called to furnish security or show cause,
the question of making an order under r 6 for ‘failure’ to comply with such direction does not arise. If
such an order is passed, it is void.

WRONGFUL ATTACHMENT

If the defendant does not obtain an order setting aside the attachment, he will not afterwards be
entitled to maintain a suit in tort on the ground that the attachment was wrongfully procured.[1]

If the attachment was effected by an injunction in restraint of alienation of the defendant will not be
entitled to damages for wrongful attachment, unless he proves that he lost a chance of a profitable sale,
and evidence of loss credit is insufficient.[2]
RULE 7.

Mode of making attachment. – Save as otherwise expressly provided, the attachment shall be made in
the manner provided for the attachment of property in execution of a decree.
As was also held in the case: Surender Singh Bajaj v M/S. Kitty Steels Limited, 22 April, 2002, that –
‘Order38 Rule 7 CPC provides that the attachment under Order38 Rule 5 shall be made in the manner
provided in the attachment of property in execution decree’.

RULE 8.

Adjudication of claim to property attached before judgment. Where any claim is preferred to property
attached before judgment, such claim shall be adjudicated upon in the manner hereinbefore provided
for the adjudication of claims to property attached in execution of a decree for the payment of money.

RULE 9.

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

RULE 10.

Attachment before judgment not to affect rights of strangers, nor bar decree-holder from applying for
sale. – Attachment before judgment shall not affect the rights, existing prior to the attachment, of
persons not parties to the suit, not bar any person holding a decree against the defendant from applying
for the sale of the property under attachment in execution of such decree.

RULE 11-A.

Provisions applicable to attachment.-

(1) The provisions of this Code applicable to an attachment made in execution of a decree shall, so far as
may be, apply to an attachment made before judgment which continues after the judgment by virtue of
the provisions of rule 11.

(2) An attachment made before judgment in a suit which is dismissed for default shall not become
revived merely by reason of the fact that the Order for the dismissal of the suit for default has been set
aside and the suit has been restored.

RULE 7.

Mode of making attachment. – Save as otherwise expressly provided, the attachment shall be made in
the manner provided for the attachment of property in execution of a decree.

As was also held in the case:Surender Singh Bajaj v M/S. Kitty Steels Limited , 22 April, 2002, that –
‘Order38 Rule 7 CPC provides that the attachment under Order38 Rule 5 shall be made in the manner
provided in the attachment of property in execution decree’.
RULE 8.

Adjudication of claim to property attached before judgment.- Where any claim is preferred to property
attached before judgment, such claim shall be adjudicated upon in the manner hereinbefore provided
for the adjudication of claims to property attached in execution of a decree for the payment of money.

RULE 9.

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

RULE 10.

Attachment before judgment not to affect rights of strangers, nor bar decree holder from applying for
sale. – Attachment before judgment shall not affect the rights, existing prior to the attachment, of
persons not parties to the suit, not bar any person holding a decree against the defendant from applying
for the sale of the property under attachment in execution of such decree.

RULE 11-A.

Provisions applicable to attachment.-

(1) The provisions of this Code applicable to an attachment made in execution of a decree shall, so far as
may be, apply to an attachment made before judgment which continues after the judgment by virtue of
the provisions of rule 11.

(2) An attachment made before judgment in a suit which is dismissed for default shall not become
revived merely by reason of the fact that the Order for the dismissal of the suit for default has been set
aside and the suit has been restored.