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
- 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
- delaying the trial of the suit;
- avoiding the order of the court;
- creating obstacles in the execution of the decree being passed against
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.
- 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.
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
- 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:
- The case is decide finally; or
- If the decree has been passed against the defendant, the decree is not
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
- suit for re-possession of immoveable property;
- suit for partition of immoveable property;
- suit of prohibition or redemption or for redemption of mortgage of such
- suit for acquiring rights for benefits in any immoveable property;
- suit for sale of immoveable property; and
- Suit for creating charge on immoveable property. (Order 38, Rule 1 and
- 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.
- 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:
- intends to consume his property; or
- 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).
- Procedure in case the defendant remains unsuccessful in giving
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.