Arrest and Attachment Before Judgment Under CPC, 1908 : Legal Grounds, Procedure & Safeguards: When Can a Defendant Be Arrested or Property Attached Before Judgment? Explained with CPC Provisions: Order 38 CPC: Arrest and Attachment Before Judgment – Conditions, Process, and Practical Insights: Extraordinary Civil Remedies: Arrest & Attachment Before Judgment

Question: Under what circumstance a defendant can be arrested before judgment and when can such order be given? Explain also the procedure for such arrest and also explain under what circumstance the property of the defendant attached before judgment and procedure thereto to be followed by the court to effecting the order: also explain in case defendant is no man of means and having property in different jurisdiction: 

Answer:

1. Arrest Before Judgment – Order XXXVIII Rule 1 CPC

◾ Circumstances for Arrest Before Judgment:

The court may order arrest of the defendant before judgment if:

• The plaintiff proves with affidavit or otherwise that the defendant:

  • Is about to abscond or leave the local jurisdiction with the intent to delay or defeat the execution of any decree that may be passed.

  • Has the intent to obstruct or delay justice by evading the court process.

👉 Key Requirement: The plaintiff must satisfy the court that such apprehension is reasonable and bona fide, not speculative.

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✅ 2. Procedure for Arrest Before Judgment

• The plaintiff files an application under Order 38 Rule 1, supported by affidavit stating the grounds.

• The court may:

  • Issue a show-cause notice to the defendant,

  • Or, issue a warrant of arrest, if it is satisfied that delay would defeat the purpose.

• If the defendant is arrested:

  • He may be released on furnishing security for his appearance and satisfaction of decree.

  • The security may be in the form of a bond with sureties or deposit of money.

🔹 Relevant Safeguards: The court must be cautious and ensure that this power is not abused to harass the defendant.

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✅ 3. Attachment Before Judgment – Order XXXVIII Rule 5 CPC

◾ Circumstances for Attachment Before Judgment:

The court may order attachment of defendant’s property before judgment if:

• The plaintiff shows that the defendant:

  • Is about to dispose of whole or part of his property,

  • Or is about to remove the property from the jurisdiction of the court,

  • With intent to obstruct or delay execution of decree.

👉 Again, affidavit-based prima facie proof of intent to defeat the decree is mandatory.

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✅ 4. Procedure for Attachment Before Judgment

• Plaintiff moves an application under Order 38 Rule 5 CPC, with supporting affidavit.

• The court may:

  • Direct the defendant to furnish security,

  • Or show cause why he should not furnish security.

• If the defendant fails to comply:

  • The court may order attachment of specific property.

• A warrant of attachment is issued and executed by the court officer.

🔹 Important: Attachment before judgment does not create a right or lien, and the property still belongs to the defendant, but it prevents alienation till decree.

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✅ 5. If Defendant Has No Means or Property in Another Jurisdiction

• If the defendant has no visible means to satisfy a decree, courts are cautious in granting arrest or attachment.

• Courts may deny the plaintiff’s application if:

  • The defendant is genuinely poor and not acting in bad faith.

  • The act of arrest/attachment would be oppressive or serves no practical purpose.

◾ If Property Lies in Another Jurisdiction:

• The court may:

  • Issue a request (rogatory) to the district court of the other jurisdiction under Section 136 CPC, for attachment or execution.

  • Follow procedures under Section 39 CPC for transfer of decree for execution to another court.

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✅ Judicial Precedents:

1. Prem Raj v. D.L.F. Housing & Construction Pvt. Ltd. (1968) SC:
   Held that order of arrest/attachment before judgment is an extraordinary power and must be used sparingly.

2. Raman Tech. & Process Engg. Co. v. Solanki Traders, (2008) 2 SCC 302:
   SC observed that the power under Order 38 must not be used to coerce the defendant into settlement or for abuse.

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✅ Conclusion:

Remedy	When Granted	Procedure	Safeguards
Arrest Before Judgment (O.38 R.1)	Defendant likely to abscond or defeat execution	Application + Affidavit → Show cause or arrest → Security	Not mechanical; must be reasoned
Attachment Before Judgment (O.38 R.5)	Defendant likely to dispose/remove property to defeat decree	Application + Affidavit → Show cause → Security → Attachment	Requires clear prima facie material
Property in Other Jurisdiction	Use Section 136 CPC	Request local court to act	Procedural compliance essential