ARREST BEFORE JUDGMENT: ORDER 38 RULES 1-4
1. When can the defendant be arrested before judgment? Or
2. What are the grounds to arrest the defendant before the judgment?
3. Where arrest before judgment should not be allowed?
4. ' Under what circumstances can a defendant be arrested before judgement and when can such order be given? Explain also the procedure for such arrest. [UPJS 1992]
ARREST BEFORE JUDGMENT (R.1—4)
1. Where defendant may be called upon to furnish security for appearance—Where at any stage of a suit, other than a suit of the nature referred to in section 16, clauses (a) to (d), the Court is satisfied, by affidavit or otherwise, —
1. 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 his property or any part thereof, or
2. that the defendant is about to leave India 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 show cause why he should not furnish security, for his appearance:
Provided that the defendant shall not be arrested if he pays to the officer enstrusted 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.
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 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 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 paid by the defendant under the provision 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.
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.
4. Procedure where 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 o 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:
Provided also that no person shall be detained in prison under this rule after he has complied with such order.
NATURE AND SCOPE
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 underlying these provisions is to enable the plaintiff to realised the amount of decree if one is eventually passed in his favour and to prevent any attempt on the part of the defendant to defeat the execution of such decree passed against him.
DISCRETION OF COURT
The power to arrest the defendant and that too before a decree in favour of the plaintiff is a drastic action (one of the harshest remedies) and must be taken after due care, caution and circumspection.
Before a court acts under this rule, it must have reason to believe on adequate material that unless the power is exercised, there is a real danger that the defendant will remove himself or his property from the jurisdiction of the court.
Hence, the power of arrest cannot be exercised to secure easy execution of decree.
CONDITIONS
An application for arrest may be made by the plaintiff AT ANY TIME AFTER THE PLAINT is presented, even before the service of summons is effected on the defendant.
However, before this extraordinary power can be exercised, the court must be satisfied about the following TWO CONDITIONS:
a. The plaintiff's suit must be BONA FIDE and his cause of action must be prima facie UNIMPEACHABLE subject to his proving the allegations in the plaint; and
b. the court must have reason to believe on adequate materials that unless this extraordinary power is exercised there is a real danger that the defendant will remove himself or his property from the ambit of the powers of the court.
Where arrest before judgment not allowed?
An order for arrest of a defendant before judgment cannot be obtained in any suit for land or immovable property specified in clauses (a) to (d) of Section 16 of the Code.[R. l.] ∙ Thus, no arrest can be effected to ensure execution.
APPEAL
An order passed under Rule 2,3 or 6 of Order 38 is appealable.[Or.43 R.1(q).]
REVISION
An order of arrest made under Rule 1 of Order 38 can be said to be a "case decided" under Section 115 of the Code and is revisable.
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 fifty thousand rupees, as seems reasonable to the defendant for the expense or injury including injury to reputation caused to him.[S.95.]
