Arrest and Attachment before Judgement [Order 38]
The main objective of justice and judicial procedure is to protect preserve and enforce the rights of
parties. This is done through the judgment and decree. So long as judgment and decree are not
executed, they are meaningless. Many times, the defendant try to defeat the execution of judgment
and decree of the court. Before judgment, they make such a plan such as consumption of property,
transferring it elsewhere or running away.
When the defendant becomes successful in doing this, the decree of court becomes meaningless.
Therefore, to defeat such plan of the defendant, provision has been made under order 38 of Civil
Procedure Code 1908 for arrest and attachment before judgment.
Arrest before judgment:
Under rules 1 to 4 of order 38 of the code, provision has been made for arrest before judgment.
a. Demand for security- when at any stage of the case, if it appears from the affidavit of the court
or otherwise that the defendant with the intention of:
i. delaying the trial of the suit;
ii. avoiding the order of the court;
iii. creating obstacles in the execution of the decree being passed against him:
• has run away
• about to run away
• has left the jurisdiction of the court; or
• about to leave the jurisdiction of the court; or
• remove the property from the jurisdiction of the court; or
• has consumed the property or
• about to leave India so that delay or obstacle may be caused in the execution of the decree.
Then the court will issue warrant of arrest with the intention that he should be brought before the court
and he should explain as to why he should not give security to the court for his appearance.
If the defendant presents himself in the court and assures the court that he is willing to give security or
deposits the amount of claim of the plaintiff in the court, he will not be arrested and the warrant of
arrest will be cancelled. (order 38, Rule 1).
In Chimanlal Vs Radhy Shayam (1972 JIJ 36), it has been said that for the purpose of rule 1, it is not
sufficient to give security, but the security must be sufficient.
b. Procedure when be becomes unsuccessful in giving security- if the defendant remains
unsuccessful in giving the desired security then under Rule 4, order 38, the defendant will be
put to civil prison till:
i. The case is decide finally; or
ii. If the decree has been passed against the defendant, the decree is not satisfied.
The period of detention in civil prison will not exceed six weeks if the value of suit does not exceed Rs.
50/- and six months, in other cases.
It is to be mentioned that in case of suits for recovery of money, no woman can be arrested. (M/s
Chelsia Mills V/s M/s Choras girl, A.I.R. 1991, Delhi 129).
It is to be mentioned here that in case of suits instituted under section 16 of the code, no order of
arrest can be passed before judgment in the following cases:
i. suit for re-possession of immoveable property;
ii. suit for partition of immoveable property;
iii. suit of prohibition or redemption or for redemption of mortgage of such immoveable property;
iv. suit for acquiring rights for benefits in any immoveable property;
v. suit for sale of immoveable property; and
vi. Suit for creating charge on immoveable property. (Order 38, Rule 1 and section 16).
Attachment before judgment
The second method of defeating the obstacles to be created by the defendant in execution of decree
is passing order by the court for attachment of the property before judgment. Provision has been
made in this regard under rules 5 to 13 or order 38 of the code.
a. Demand for Security: under Rule 5, order 38 of the code, if the court comes to the
conclusion at any stage of the suit either from the affidavit or otherwise, that the
defendant with the intention of creating obstruction in the execution of decree passed
against him:
i. intends to consume his property; or
ii. about to remove that property from the jurisdiction of the court;
then the court will direct the defendant that he should explain why security should not be taken from
him he should surrender that property or its value or any portion of it at the disposal of the court or to
give security for that (Sub rule 2 of Rule 5).
It is to be mentioned that until the court gives direction or passes orders otherwise, the plaintiff can
make demand for attachment of the property (Sub-rule 2, Rule 5)
Further, the court can pass order for conditional attachment of any property (Sub-rule 3 of Rule 5).
b. Procedure in case the defendant remains unsuccessful in giving security: when the
defendant remains unsuccessful in submission of proper security or could not show
any cause for it, then court under Rule 6, Order 38, will attach the property or any
portion of it which can satisfy the claim of the plaintiff (Sub-rule 1, Rule 6).
But during this period, if cause is shown by the defendant or security is given, then the court will
withdraw such order (Sub-rule 2 of Rule 6).
Thus under rules 5 and 6 of Order 38 of the code, provision has been made for attachment of property
before judgment.
The provision of rule 5, order 38 are mandatory. In Poldhar Rolling Mills Pvt. Ltd. Vs Vishvasaraiyya
Iron and Steel Company Ltd. (A.I.R. 1985, Karnataka 282), has been decided by the court that
before passing orders for attachment by any court, it should be ascertained that strong possibility
exists of creating obstacles in the execution of the decree by the defendant.
The plaintiff will have to prove that the defendant will create obstacles in the execution of decree
(Tatanagar Transport corporation vs M/s Ajanta Enterprises, A.I.R. 1987, Orissa 107).
In M/S K.C.V. Airways limited Vs Wing Commander R.K. Balgana (A.I.R. 1998, Delhi 70), it has been
decide that the order for attachment before judgment cannot be issued so long as all the conditions of
Rule 5, Order 38 are fulfilled.
