DR.

RAM MANOHAR LOHIYA

NATIONAL LAW UNIVERSITY
LUCKNOW

PROJECT ON
ARREST AND ATTACHMENT BEFORE JUDGEMENT

SUBMITTED TO: SUBMITTED BY:

Mr. Vipul Vinod Sanskriti Verma
Assistant Professor Section – ‘B’
(Civil Procedure Code) Enrollment Number-210101131
BA LLB. (Hons.) Semester-4
Dr. Ram Manohar Lohiya National Law University, Lucknow

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 ACKNOWLEDGEMENT
I express my gratitude and deep regards to professor Dr. Vipul Vinod, for his
guidance and constant supervision as well as for providing necessary
information regarding the project, also for his support in completing the project.
I extend my gratitude to my seniors, who constantly helped me find the best
source for research. Finally, I acknowledge the authorities as well as the
caretakers of Dr. Madhu Limaye library, who provided me with the means to
make this project. This project is a result of my efforts combined with my
family and friends’ constant encouragement without which this assignment
wouldn’t have been possible.

THANK YOU

SANSKRITI VERMA

ENROLLMENT NUMBER-210101131

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 Declaration
I hereby declare that the project report analysis of “Arrest and
Attachment before Judgment” submitted by me to Dr. Ram
Manohar Lohia National Law University, Lucknow, Uttar Pradesh in
partial fulfillment and requirement for the award of the degree of B.A.
LL.B.(Hons) is recorded of bonafide project work carried out by me
under the guidance of Dr. Vipul Vinod.

I further declare that all the information and data that has been
analyzed, and the work done by me is my piece of work and authentic
to the best of my knowledge under the supervision and guidance of
my constitution professor.

SANSKRITI VERMA
ENROLLMENT NUMBER: 21010113

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 Index

1- Introduction
2- Arrest Before Judgment ………………………………………………………6-9
Power And Duty of The Court

3- Attachment before Judgment …………………………………………………10-14

When attachment before judgment can be ordered
Determination of property’s attachment
Effects and Withdrawal of attachment

4- Conclusion……………………………………………………………………..14
5- References ……………………………………………………………………..15

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 Arrest and Attachment before Judgement

INTRODUCTION
The main objective of justice and the judicial procedure is to protect preserve and enforce the
rights of parties. This is done through judgment and decree. So long as judgment and decree
are not executed, they are meaningless. Many times, the defendant tries to defeat the
execution of the judgment and decree of the court. Before judgment, they make such a plan as
consumption of property, transferring it elsewhere, or running away. Arrest and attachment
before judgment are legal remedies that can provide a measure of security for a plaintiff
seeking to recover damages from a defendant. However, these remedies can also have
significant implications for both parties and should be used judiciously and in accordance
with the applicable laws and procedures.

When the defendant becomes successful in doing this, the decree of the court becomes
meaningless. Therefore, to defeat such a plan of the defendant, a provision has been made
under order 38 of the Civil Procedure Code 19081 for arrest and attachment before judgment.
One of the modes of executing a decree is the arrest and detention of the judgment debtor in a
civil prison. The decree-holder has the option to choose a mode for executing his decree and,
normally a court of law in absence of special circumstances, cannot compel him to invoke a
particular mode of execution. Sections 55 to 592 and Rules 30 to 41 deal with the arrest and
detention of the judgment debtor in civil person. The court enumerates various modes of
execution. One such mode is the arrest of the judgment debtor in a civil. The substantive
prison provisions deal with the rights and liabilities of the decree holder and judgment debtor
and procedural provisions lay down the conditions thereof. The provisions are mandatory in
nature and must be strictly complied with. They are not punitive in character. The object of
detention of judgment-debtor in civil prison is twofold. On one hand, it enables the decree-
holder to realize the fruits of the decree passed in his favor; while on the other hand, it
protects the judgment debtor who is not able to pay the dues for reasons beyond his control or
is unable to pay. Therefore, mere failure to pay the amount does not justify the arrest and
detention of the judgment debtor in as much as he cannot be held to have neglected to pay the
amount to the decree-holder.

1
Civil Procedure Code 1908, o 38.
2
Civil Procedure Code 1908, §§ 55-59.

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Judgment Debtor- A person who is liable to pay a debt or damage to the creditor in
accordance with a judgment entered by a court against him, is called a judgment debtor. A
person against whom a judgment in respect of monetary award has been obtained is regarded
as JUDGMENT DEBTOR. Section 2(10)3 of the code defines a judgment debtor as any
person against whom a decree has been passed or an order capable of execution has been
made.

ARREST BEFORE JUDGEMENT

Arrest and attachment before judgment are legal remedies that allow a plaintiff to seize the
property or assets of a defendant before a final judgment is rendered. This is typically done to
ensure that the defendant does not dispose of their assets or leave the jurisdiction, thereby
frustrating the plaintiff's ability to recover damages. Arrest before judgment is a legal term
that refers to the arrest or detention of an individual before a judgment or decision has been
made in a criminal case. This can happen when there is a fear that the accused may flee,
tamper with evidence, or pose a threat to society or to themselves.

In some jurisdictions, the law allows for the arrest of a person before a judgment or trial if
there is probable cause to believe that the individual committed a crime, and if the authorities
believe that the person is a flight risk or poses a danger to the community. The purpose of an
arrest before judgment is to ensure that the accused appears in court and to prevent them from
committing further crimes.

It is important to note that an arrest before judgment is not the same as a conviction, and the
accused is still considered innocent until proven guilty in a court of law. Additionally, in
many jurisdictions, an individual who has been arrested before judgment may be released on
bail or under some other form of supervision until their trial or judgment takes place. Arrest
before judgment is an interim order that may be passed by the court during the pendency of
the suit. The provision related to it is given under Order 38 Rule 1-4 of the Code of Civil
Procedure. a person who has filed a suit for recovery of money, in usual circumstances must
obtain a decree against that person and then can execute that against that person either by
having him/her arrested or by getting his/her property attached in execution. But under
special circumstances, he can move for the arrest of that person or for attachment of his/her
property even before any decree or judgment is passed.

3
Civil Procedure Code 1908, § 2(10).

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Rule 1 of Order 384 specifies the grounds on which this can be done that are:

-At any stage in a suit or a proceeding if the court is satisfied that the defendant is trying to
avoid the execution of a decree or is trying to delay the process or is trying to avoid any
process of court, then the court has the right to arrest the defendant before judgment.

-If the defendant is trying to leave India so that the plaintiff will be delayed in the execution
of the decree or obstructed in the execution of the decree, the court can order the issue of a
warrant against the plaintiff.

The court has the authority to decide whether to put the defendant under arrest. Use of this
court-granted authority must be done so with extreme discretion. It should be utilized when
the court is confident that the defendant would leave the country or remove him and the
property from the court's jurisdiction if the arrest is not made. The case appears to be prima
facie in favor of the defendant after consideration of the relevant facts and circumstances, and
the court believes that if an arrest warrant is not issued, the defendant or that person will
remove themselves and their property from the court's jurisdiction. The warrant should be
issued for that person's arrest prior to the entry of judgment. This right may be asserted even
before any summons in a lawsuit is issued, but the court must first take the aforementioned
factors into account before exercising this authority. An order for arrest before judgment
cannot be made for the easy execution of a decree or for converting an unsecured debt into a
secured debt. Also, it cannot be issued in cases of land or immovable property mentioned
in clauses (a) to (d) of section 16 of the CPC.

SECTION 16 of CPC5 states that the suit related to immovable property shall be instituted
where such immovable property is situated.

It talks about the institution of the suit with respect to: -

• Recovery of immovable property with or without profit or rent.

• Partition of immovable property
• Foreclosure, sale, or redemption in case of charge or mortgage upon immovable
property
• Compensation for a wrong caused to immovable property.
• Determination of any interest or rights related to immovable property.

4
Civil Procedure Code 1908, o 38, r 1.
5
Civil Procedure Code 1908, §16.

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Recovery of movable property under attachment or distraint, for all the above-mentioned
purpose.

When the suit is filed for the relief or compensation for wrong caused to immovable property
held by a defendant or any other person on the behalf of a defendant where the relief can be
obtained through his personal attendance then suits may be instituted in a court within whose
local jurisdiction: -

• the property is situated, or

• the defendant voluntarily and resides or carries on business or personally for gains.

Section 95 of the CPC6 states that in a suit where the arrest of the defendant is made before
passing of judgment and it is found that the arrest was made on insufficient grounds or in the
case when the suit of the plaintiff fails and it is found that there was no reasonable ground for
filing it, then on the application of the defendant the plaintiff can be asked to compensate
him/her for the harm done to his reputation or for any injury or harm done to him. The
compensation under this section cannot exceed fifty thousand rupees.

Under rules 1 to 4 of order 38 of the code, a 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:
• delaying the trial of the suit.
• avoiding the order of the court.
• 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.

6
Civil Procedure Code 1908, § 95.

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Then the court will issue a warrant of arrest with the intention that he should be brought
before the court and he should explain why he should not give security to the court for his
appearance. If the defendant presents himself in court and assures the court that he is willing
to give security or deposit the amount of claim of the plaintiff in the court, he will not be
arrested, and the warrant of arrest will be cancelled.

State of Rajasthan v. Balchand,7 - In this case, the Supreme Court of India held that the power
to order an arrest before judgment should only be used in cases where it is necessary to
prevent the accused from absconding or tampering with evidence. The Indian Supreme Court
ruled that the basic rule is bail, not jail, except where there is a risk the accused may flee from
justice, interfere with the course of justice, repeat offenses, or intimidate witnesses.

b) Procedure when 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 decided finally; or
• 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 the suit does
not exceed Rs. 50/- and six months, in other cases.

Power And Duty of The Court

The provisions relating to the arrest of the judgment debtor protect and safeguard the interests
of the decree-holder. If the judgment debtor has the means to pay and still refuses or neglects
to honor his obligations, he can be sent to civil prison. Mere omission to pay, however,
cannot result in the arrest or detention of the judgment debtor. Before ordering detention, the
court must be satisfied that there was an element of bad faith, “not mere omission to pay but
an attitude of refusal on demand verging on demand verging on disowning of the obligation
under the decree”.

ATTACHMENT BEFORE JUDGEMENT

Attachment is the legal process of seizing property to ensure the satisfaction of a Judgment.
The expression attachment before Judgment we hear almost every day but there are several

7
State of Rajasthan v. Balchand AIR 1977 SC 2447.

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intricacies that we must understand. Various interim orders are enumerated under the Code of
Civil Procedure, 1908 (CPC), which are temporary orders given during the suit’s pendency to
safeguard the subject matter of the suit wherein Order 38 Rules 5-13 exclusively concerns the
attachment before judgment. Like arrest before judgment, the court may order attachment
before judgment in peculiar circumstances.

Attachment of property before judgment is done for the primary objective of preventing the
defendant’s attempt to defeat the decree’s realization which is passed in favour of the
plaintiff. The power under order 38 rule 5 CPC is drastic and extraordinary power. Such
power should not be exercised mechanically or merely for the asking. It should be used
sparingly and strictly by the Rule. The purpose of Order 38 Rule 5 is not to convert an
unsecured debt into a secured debt. Any attempt by a plaintiff to utilize the provisions of
order 38 rule 5 as leverage for coercing the defendant to settle the suit claim should be
discouraged. Instances are not wanting where bloated and doubtful claims are realized by
unscrupulous plaintiffs by obtaining orders of attachment before Judgment and forcing the
defendants to an out-of-court settlement, under threat of attachment.

A defendant is not debarred from dealing with his property merely because a suit is filed or
about to be filed against him. Shifting of business from one premise to another premise or
removal of machinery to other premises by itself is not a ground for granting attachment
before Judgment. A plaintiff should show, prima facie, that his claim is bonafide and valid
and also satisfy the court that the defendant is about to remove or dispose of the whole or part
of his property, with the intention of obstructing or delaying the execution of any decree that
may be passed against him, before power is exercised under order 38 rule 5 CPC8.

A. The second method of defeating the obstacles to be created by the defendant in the
execution of a decree is a 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 concludes at any
stage of the suit either from the affidavit or otherwise, that the defendant with the
intention of creating an obstruction in the execution of decree passed against him:

8
Civil Procedure Code 1908, o 38 r 5.

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 • 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 a demand for attachment of the property (Sub-rule 2, Rule 5) Further, the
court can pass an 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 the submission of proper security or could not
show any cause for it, then the court under Rule 6, Order 389, 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 the 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 the attachment
of property before judgment.

The provision of rule 5, order 38 is mandatory. In Poldhar Rolling Mills Pvt. Ltd. Vs
Vishvasaraiyya Iron and Steel Company Ltd.10, has been decided by the court that before
passing orders for attachment by any court, it should be ascertained that a strong possibility
exists of creating obstacles in the execution of the decree by the defendant.

In Sardar Govindrao vs Devi Sahai11, it was observed by the Apex court:

An order for attachment before judgment is given in cases where the plaintiff’s application is
successful in convincing the court that the defendant had intended either to delay any
decree’s execution or obstruct it or is about to give away the whole or any part of his property
from the Court’s local limits of the jurisdiction. The only motive behind such an order of
attachment before judgment is to render satisfaction to the plaintiff that his decree if made
would be satisfied. In some way or the other, it is a guarantee against the decree becoming

9
Civil Procedure Code 1908, o 38 r 6.
10
Poldhar Rolling Mills Pvt. Ltd. v Vishvasaraiyya Iron and Steel Company Ltd AIR 1985 Karnataka 282.
11
Sardar Govindrao v Devi Sahai 1982 AIR 989.

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infructuous for property’s availability from which the plaintiff can satisfy the decree. This
case has highlighted the grounds on which the court, if satisfied, at any stage of the suit, may
direct the party to either pay security of the amount specified in the order, to bring about the
property at the court’s disposal or such property’s value or to show reasonable argument as to
why the party should not furnish the security.

On the court’s such order if the party fails to satisfy the conditions of submitting security,
within the time fixed by the court, then it might be ordered by the court for the specified
property to be attached, as per Rule 6(1). The execution proceeding’s provision under order
21 applies to the attachment of property before judgment.

However, this ordinary remedy must be used sparingly and with proper care and caution so
that it does not act as oppressing machinery. In Hari Sankar v. Bhoori Devi12, the court held
that to ascertain if such an order must be made, two conditions should be satisfied:

1. That an attempt of disposing of the whole or any part of the property is being
made, and

2. Intention behind such disposal is to obstruct or delay the decree’s execution passed
that might get passed in the other party’s favor.

In the case of Raman Technology & process engg. Co v. Solanki Traders13, it was stated by
the Supreme Court that since attachment before judgment is a drastic power, it should not be
exercised automatically. Order 38 Rule 5’s aim is not to change the form of unsecured debt to
a secured debt. It must be ensured that the unscrupulous plaintiff is not obtaining this order
for the furtherance of his intentions to compel the defendant with threats of attachment for an
out-of-court settlement.

When attachment before judgment can be ordered:

The scheme of Order 38 and the use of the words 'to obstruct or delay the execution of any
decree that may be passed against him' in Rule 5 make it clear that before exercising the

12
Hari Sankar v Bhoori Devi 11 (1975) DLT 159.
13
Raman Technology & process engg. Co v. Solanki Traders Appeal (Civil) 6171 of 2001.

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power under the said Rule, the court should be satisfied that there is a reasonable chance of a
decree being passed in the suit against the defendant. This would mean that the court should
be satisfied the plaintiff has a prima facie case. If the averments in the plaint and the
documents produced in support of it, do not satisfy the court about the existence of a prima
facie case, the court will not go to the next stage of examining whether the interest of the
plaintiff should be protected by exercising power under order 38 rule 5 CPC. It is well-settled
that merely having a just or valid claim or a prima facie case, will not entitle the plaintiff to
an order of attachment before the Judgment, unless he also establishes that the defendant is
attempting to remove or dispose of his assets with the intention of defeating the decree that
may be passed. Equally well settled is the position that even where the defendant is removing
or disposing his assets, an attachment before Judgment will not be issued, if the plaintiff is
not able to satisfy that he has a prima facie case.

Determination of property’s attachment

The circumstances of determining attachment order, under the Civil Procedure Code, 1908
are:

• wherein security is paid by the defendant,

• Wherein attachment is withdrawn by the attaching creditor,
• In case of suit’s dismissal,
• Satisfaction of the decree,
• Where a decree has been set aside or overturned,
• Wherein the property has been released by the court,
• In cases where an application for execution has been dismissed, ensuing the
attachment of property,
• After getting a decree, the decree-holder stalls to do whatever he is required to.

Effect and withdrawal of attachment

In case Defendant pays security, an order of attachment must be withdrawn. Moreover, when
the suit is dismissed, or security is paid then also the order of attachment is withdrawn. On
Defendant’s application being made against the court’s order for attachment on insufficient
grounds claimed by the plaintiff or when Plaintiff’s suit fails subsequently, and as per the
court there lied no sufficient grounds for the institution of such claim, then the Plaintiff may
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be ordered to pay an amount, not exceeding fifty thousand rupees, to make good the loss of
reputation and expense to him. In the case of wrongful attachment, a suit can be instituted to
claim damages.

CONCLUSION
It vividly appears from the above discussion, that the objective behind ordering attachment
before judgment is to prevent the defendant’s attempt to defeat getting the fruits of the decree
passed in favor of the plaintiff. The code enumerates provisions relating to the attachment of
property before judgment under Order 38 Rule 5. Various case laws illustrate the diversity of
cases wherein such order can be passed by the Court. The protection, preservation, and
enforcement of parties' rights is the primary goal of justice and judicial proceedings. Using
that judgment and decree, this is accomplished. Judgment and decree are meaningless if they
are not carried out. The defendant frequently tries to prevent the court's verdict and order
from being carried out. They develop plans like consuming property, moving it somewhere
else, or fleeing before judgment. When the defendant is successful in doing this, the court's
ruling loses all relevance. Thus, under order 38 of the Civil Process Law 1908, provisions
have been provided for arrest and attachment before judgment to thwart the defendant's
scheme. The purpose of arrest is to give relief to a decree-holder and commit the judgment
debtor to civil prison if he does not pay the decretal amount despite having the means to pay
the same. However, it also protects honest debtors, where their inability to pay is supported
by a reasonable cause. The court must afford the right to be heard by the debtors to ensure
proper justice. The object of invoking Order 38 Rule 5 is to safeguard the interest of the
plaintiff, if the court is satisfied that ultimately when a decree is going to be obtained by the
plaintiff, he may not be able to realize the fruits of the decree. The main purpose of
attachment was to coerce a defendant into appearing in court and answering the plaintiff's
individual right to use it. So, the object of supplemental proceedings (application for arrest or
attachment before Judgment, grant of temporary injunctions, and appointment of receivers) is
to prevent the ends of Justice from being defeated. The object of order 38 rule 5 CPC is to
prevent any defendant from defeating the realization of the decree that may ultimately be
passed in favor of the plaintiff, either by attempting to dispose of, or remove from the
jurisdiction of the court, his movables.

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 Reference

Cases
1- State of Rajasthan v. Balchand AIR 1977 SC 2447.
2- Poldhar Rolling Mills Pvt. Ltd. v Vishvasaraiyya Iron and Steel Company Ltd AIR
1985 Karnataka 282.
3- Sardar Govindrao v Devi Sahai 1982 AIR 989.
4- Hari Sankar v Bhoori Devi 11 (1975) DLT 159.

Books

1-C.K. Takwani, Civil Procedure Limitation and Commercial Courts, 9th Edition.

Statutes

1- Civil Procedure Code 1908, o 38

2- Civil Procedure Code 1908, §§ 55-59.
3- Civil Procedure Code 1908, o 38, r 1.
4- Civil Procedure Code 1908, §2(10).
5- Civil Procedure Code 1908, §16.
6- Civil Procedure Code 1908, § 95.
7- Civil Procedure Code 1908, o 38 r 5.
8- Civil Procedure Code 1908, o 38 r 6.

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