Thursday, June 20, 2024

𝗝𝘂𝗱𝗶𝗰𝗶𝗮𝗹𝗗𝗿𝗲𝗮𝗺™

𝙰𝙵𝙵𝙾𝚁𝙳𝙰𝙱𝙻𝙴 & 𝙰𝙲𝙲𝙴𝚂𝚂𝙸𝙱𝙻𝙴

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ARREST & ATTACHMENT BEFORE JUDGMENT

Order 38 of Code of Civil Procedure, 1908, deals with the provisions of “Arrest and Attachment before Judgment”. Generally, a plaintiff firstly files a suit against defendant and after getting a decree against defendant, files an execution proceeding to get the decree executed either by arresting the defendant or by attaching his property. But according to the provisions of Order 38 of Code of Civil Procedure, 1908, after filing a suit, a plaintiff can file an application for arresting the defendant or attaching his property even without getting the decree that is even before the judgment.

In the leading case of Raman Tech. & Process Engg. Co. v. Solanki Traders, (2008) 2 SCC 302, the Hon’ble Court held that the main object of these provisions is to enable the plaintiff to realize 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.

Moreover, in the leading case of Padam Sen vs. State of U.P., AIR 1961 SC 218, the Hon’ble court held that the primary object of attachment before judgment is to prevent any attempt on the part of defendant to defeat the realization of the decree that may be passed against him.

According to Order 38 Rule 1 of Code of Civil Procedure, 1908, if the plaintiff files an application before the court at any stage that the defendant has left the local limits of the jurisdiction of the court or is about to leave the local limits of the jurisdiction of court or has removed any property from the local limits of the jurisdiction of the court with an intent to avoid the process of court or delay the execution of decree that may be passed against him then in such a case the court may pass an order to arrest the defendant and bring him before the court and ask the defendant to show cause why he should not furnish security for his appearance. If the defendant fails to show cause, then in such a case the court will ask him to furnish the security and if the defendant fails to furnish the security also then in such case the court will pass an order to commit him to civil prison till the decision of the court or the execution of the decree.

But according to the provisions of this order, a defendant shall not be detained in prison for a longer period than six months in any case and if the value or amount of the subject matter of the suit does not exceed fifty rupees then in such a case, he cannot be detained in prison for a longer period than six weeks.

According to the provisions of Order 38 of Code of Civil Procedure, 1908, 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 affected on the defendant. However, before this extraordinary power can be exercised, the court must be satisfied about the following two conditions: –

  1. 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
  2. The court must have reason to believe on adequate materials that unless this extraordinary power is exercised there is a real danger that defendant will remove himself or his property form the ambit of the powers of the court.
    In the leading case of Vareed Jacob vs. Sosamma Greevarghese, (2004) 6 SCC 378, the Hon’ble court held that the power to arrest the defendant and that too before the decree in favour of the plaintiff is a drastic action 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.
    According to the provisions of Order 38 Rule 5 of Code of Civil Procedure, 1908, if the plaintiff files an application before the court that the defendant is about to dispose of whole or any portion of his property or about to remove whole or any portion of his property with an intent to obstruct or delay the execution of any decree that may be passed against him then in such a case, the court may order the defendant to show cause why he should not furnish the security for his appearance. If the defendant fails to show cause, then the court may ask him to furnish the security which is sufficient to satisfy the claim of the plaintiff within the time fixed by the court. If the defendant fails to furnish the security, then in such a situation the court will order to attach the whole property or any portion of property of defendant that is required to satisfy the claim of the plaintiff.
    In the leading case of Raman Tech & Process Engg. Co. vs Solanki Traders, (2008) 2 SCC 302, the Hon’ble court held that the remedy of attachment before judgment is an extraordinary remedy and must be exercised sparingly and strictly in accordance with law and with utmost care and caution so that it may not become an engine of oppression.
    According to the provisions of Order 38 of Code of Civil Procedure, 1908, before passing an order of attachment, a court analysis the following two conditions: –
  3. That the defendant is about to dispose of the whole or any part of his property; and
  4. That the disposal is with the intention of obstructing or delaying the execution of any decree that may be passed against him.
    According to section 95 of Code of Civil Procedure, 1908, where in any suit in which an order of arrest of the defendant or attachment of property of the defendant has been obtained by the plaintiff on insufficient grounds or where the suit of the plaintiff fails and it appears to the court that there was no reasonable ground for presenting the application then in such a case the court may order the plaintiff to pay compensation not exceeding fifty thousand rupees to the defendant for his expense or injury including injury to the reputation caused to him.

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