Code of Civil Procedure, 1908 (CPC)
Order XXXVIII CPC: Arrest and Attachment Before Judgment
Nothing has been decided, and yet the Code allows a defendant to be arrested and his property to be frozen. Order XXXVIII of the Code of Civil Procedure, 1908 permits both, and hedges both, because the justification is narrow: not that the plaintiff is likely to win, but that the defendant is taking steps to make sure that winning is worthless. Rules 1 to 4 deal with arrest before judgment, Rules 5 to 13 with attachment before judgment. These notes cover the conditions for each, the security the court takes, the consequences of failing to furnish it, and the comparison with attachment in execution.
The four supplemental reliefs and their grounds
1. Arrest Before Judgment: Rules 1 to 4
§ Order XXXVIII Rule 1, CPC 1908 (in substance) 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 — (a) 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 those limits, or (iii) has disposed of or removed from those limits his property or any part thereof, or (b) 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 him, 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. |
§ Four points on arrest before judgment Each limits the power: • Intent is the essence. It is not enough that the defendant is leaving; he must be leaving, absconding or disposing of property with intent to delay the plaintiff, avoid process or obstruct execution. A businessman travelling abroad on business is not within the rule. • Suits excluded. The power does not apply to a suit of the nature referred to in Section 16 clauses (a) to (d), that is, suits for the recovery, partition, foreclosure, sale or redemption of immovable property, since the property itself is within the court's reach. • Rule 2: security. Where the defendant fails to show cause, the court orders him to deposit money or other property sufficient to answer the claim, or to furnish security for his appearance. Rule 2(2) provides that every surety becomes liable to pay the amount which the defendant may be ordered to pay. • Rule 4: the consequence. Where the defendant fails to comply with an order for security, the court may commit him to civil prison until the decision of the suit, or, where a decree is passed, until its execution; but the total period shall not exceed six months, or six weeks where the claim does not exceed fifty rupees, and he shall be released at any time on satisfying the court that he will comply. |
Rule 3 requires that the arrested defendant be brought before the court and given an opportunity to show cause, and Rule 4 contains the further protection that a person shall not be arrested or detained where the claim is one in respect of which he could not be arrested in execution. The scheme therefore mirrors, before judgment, the safeguards that Sections 55 to 59 provide after it.
2. Attachment Before Judgment: Rules 5 to 13
§ Order XXXVIII Rule 5, CPC 1908 (in substance) (1) Where at any stage of a suit the Court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him — (a) is about to dispose of the whole or any part of his property, or (b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court, the Court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the Court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security. (3) The Court may also in the order direct the conditional attachment of the whole or any portion of the property so specified. (4) If an order of attachment is made without complying with the provisions of sub-rule (1), such attachment shall be void. |
§ The object, and the two things that must be shown The object is not to secure the plaintiff's claim in advance. It is to prevent the defendant from defeating the decree by putting his property beyond reach. An attachment before judgment is not a step towards realisation; it is a freeze. What must be shown, first: that the defendant is about to dispose of his property, or about to remove it from the jurisdiction. A sale already completed, or an ordinary commercial dealing, is not within the rule. What must be shown, second: that he is doing so with intent to obstruct or delay the execution of a decree that may be passed. This is the element most applications fail on. Intent must be established from material, not inferred from the mere fact that the defendant owes money and is selling something. Sub-rule (4) is the sanction. An attachment made without complying with sub-rule (1), that is, without calling on the defendant to furnish security or show cause, is void. The requirement is therefore jurisdictional, not procedural. |
Rule | What it provides |
|---|---|
Rule 6 | Where the defendant fails to show cause or to furnish security, the court may order that the property specified be attached; where he shows cause or furnishes security, the court shall withdraw the attachment or make such other order as it thinks fit |
Rule 7 | Save as otherwise provided, the attachment shall be made in the manner provided for the attachment of property in execution of a decree |
Rule 8 | Where any claim is preferred to property attached before judgment, it shall be adjudicated upon in the manner provided for the adjudication of claims to property attached in execution |
Rule 9 | Where an order of attachment before judgment is made, the court shall withdraw it when the defendant furnishes the required security together with security for the costs of the attachment, or when the suit is dismissed |
Rule 10 | Attachment before judgment shall not affect the rights, existing prior to the attachment, of persons not parties to the suit, nor bar any person holding a decree against the defendant from applying for the sale of the property under attachment in execution of such decree |
Rule 11 | Where property is under attachment before judgment and a decree is subsequently passed in favour of the plaintiff, it shall not be necessary upon an application for execution of such decree to apply for a re-attachment of the property |
Rules 12 and 13 | Agricultural produce is not attached under this Order; and the provisions apply, with modifications, where the defendant is a corporation |
3. Attachment Before Judgment Compared with Attachment in Execution
Basis | Attachment before judgment, Order XXXVIII | Attachment in execution, Order XXI |
|---|---|---|
Stage | During the suit, before any decree | After a decree, in execution proceedings |
Purpose | To prevent the defendant from defeating a decree that may be passed | To realise a decree already passed, by sale of the attached property |
What must be shown | That the defendant is about to dispose of or remove property with intent to obstruct or delay execution | Nothing beyond a valid decree and an execution application; intent is irrelevant |
Preliminary step | The defendant must first be called on to furnish security or show cause; an attachment without it is void under Rule 5(4) | No such step; the attachment follows the order on the execution application |
Sale | None. The property is frozen, not sold | Sale follows, under Order XXI Rules 64 to 94 |
Effect on third parties | Rule 10: existing rights of non-parties are unaffected, and another decree-holder may still apply for sale | Section 64: a private transfer contrary to the attachment is void as against claims enforceable under it |
On decree | Rule 11: no re-attachment is needed; the attachment carries into execution | Not applicable |
If the suit fails | Rule 9: the attachment is withdrawn when the suit is dismissed, and Section 95 compensation may follow | Not applicable |
4. Landmark Points
- Order XXXVIII Rule 1. Arrest before judgment requires intent to delay the plaintiff, avoid process or obstruct execution, and does not apply to suits of the nature in Section 16(a) to (d).
- Order XXXVIII Rule 4. Detention for failure to furnish security is limited to six months, or six weeks where the claim does not exceed fifty rupees, and the defendant is released on satisfying the court that he will comply.
- Order XXXVIII Rule 5(1). Attachment before judgment requires both that the defendant is about to dispose of or remove property and that he does so with intent to obstruct or delay execution.
- Order XXXVIII Rule 5(4). An attachment made without complying with sub-rule (1) is void, so the requirement to call for security or cause is jurisdictional.
- Order XXXVIII Rule 10. The attachment does not affect the existing rights of persons not parties to the suit, nor bar another decree-holder from applying for a sale.
- Order XXXVIII Rule 11 with Section 95. No re-attachment is needed once a decree is passed; and an attachment obtained on insufficient grounds may attract compensation.
5. Frequently Asked Questions
When can a defendant be arrested before judgment?
Where the court is satisfied that he has absconded or left the jurisdiction, is about to do so, or has disposed of or removed his property, with intent to delay the plaintiff, avoid the court's process or obstruct execution; or that he is about to leave India in circumstances affording reasonable probability that execution will be obstructed or delayed.
What happens after such an arrest?
He is brought before the court to show cause why he should not furnish security for his appearance. If he fails, the court may order him to deposit money or furnish security, and under Rule 4 may commit him to civil prison for a period not exceeding six months if he does not comply.
What must be shown for attachment before judgment?
Two things under Order XXXVIII Rule 5(1): that the defendant is about to dispose of the whole or part of his property or to remove it from the jurisdiction, and that he is doing so with intent to obstruct or delay the execution of any decree that may be passed against him. Both must rest on material, not assertion.
Is an attachment valid if the defendant was not first called on to show cause?
No. Order XXXVIII Rule 5(4) provides that an attachment made without complying with sub-rule (1) shall be void. The requirement to direct the defendant to furnish security or show cause is therefore jurisdictional and cannot be dispensed with.
Does attachment before judgment give the plaintiff a charge on the property?
No. It freezes the property so that it remains available if a decree is passed. Rule 10 makes the position clear: the attachment does not affect the rights of persons who are not parties and existed before it, and it does not bar another decree-holder from applying for a sale in execution of his own decree.
What happens to the attachment if the suit is dismissed?
Under Rule 9 the court withdraws the attachment when the suit is dismissed, or when the defendant furnishes the security required together with security for the costs of the attachment. A defendant whose property was attached on insufficient grounds may also apply for compensation under Section 95.
Is a fresh attachment needed after the decree?
No. Order XXXVIII Rule 11 provides that where property is under attachment before judgment and a decree is subsequently passed in favour of the plaintiff, it is unnecessary on an application for execution to apply for a re-attachment of that property.
6. Related Topics in This CPC Series
- Supplemental Proceedings: Sections 94 and 95
- Order XXXIX: Temporary Injunctions and Interlocutory Orders
- Attachment in Execution: Sections 60 to 64 and Order XXI
- Arrest and Detention in Civil Prison in Execution