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DR.

RAM MANOHAR LOHIYA NATIONAL LAW


UNIVERSITY

2016-2017

Subject: Civil Procedure Code

Project on:

ARREST BEFORE JUDGMENT

SUBMITTED TO: SUBMITTED BY:


Dr. RADHESHYAM PRASAD DEEPTI VERMA
ASST.PROFESSOR B.A.LL.B (HONS) SEM IV
RMLNLU ROLL NO.-46

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ACKNOWLEDGEMENT

I would take great pleasure in thanking Assistant Professor Dr. Radheshyam Prasad for his
infallible support all through the course of this project. This Endeavour would not have been in
its present shape had he not been there whenever I needed his. He has been a constant source of
support all the while.

Also I would like to extend my sincere thanks to the library staff for always helping me out with
finding excellent books and material almost every time I needed. They too have been a constant
support system in the completion of this project.

I would also like to thank my friends for their timely critical analysis of my work and special
feedback that worked towards the betterment of this work.

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TABLE OF CONTENTS

1. Introduction ..4
2. Rule 1:defendant call upon to furnish security..5
I. Scope of the order..6
II. The suit must be bona fide.9
III. Amount of security....11
3. Rule2:security....11
I. effect of insolvency.12
II. Extent of suretys liability...13
4. Rule 3:procedure to discharge surety.14
I. Scope of the rule..14
5. Rule 4:defendant fails to furnish security..15
I. Scope of the rule.15
6. Bibliography..17

INTRODUCTION:

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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 special circumstances, however, the creditor can move for the
arrest of the debtor or for the attachment of his property even before the judgment. The object
underlying 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. The grounds for the arrest have been
enumerated from rule 1 to 4 of sec 38 in Civil Procedure Code.

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R.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,

(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 the local limits of the jurisdiction of the court, or

(iii) has disposed of or removed from the local limits of the jurisdiction of the court 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 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 entrusted with the
execution of the warrant any sum specified in the warrant as sufficient to satisfy the plaintiffs
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.

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Scope of the order:

Order 21 deals with the arrest of a judgment debtor and the attachment of his property in the
execution of a decree passed against him. The present order lays down rules for the arrest of a
defendant and the attachment of his property before judgment. The object of these rules is to
secure the plaintiff against any attempt on the part of defendant to defeat the execution of any
decree that may be passed against him. An order of arrest before the judgment of the defendant is
to be passed only where the plaintiff is able to make out a prima facie case. The court will be
justified in dismissing the application only when the plaintiff has failed to make out a prima facie
case that the defendant, with the intent to obstruct or delay the execution of the decree is about to
dispose of the whole or any part of his property or about to remove the whole or any part of the
property out of the local limits of the jurisdiction of the court. 1 The court is vested with the
jurisdiction to call for security even with regard to foreigners as it vested with the court in regard
to dishonest and fraudulent Indian defendants and the court may direct the defendants to
surrender their passports in court.2

The purpose of securing appearance of the defendant is to secure the claim of the plaintiff
himself and that is why the proviso to O. 38, r.1 provides that to avoid the execution of arrest
warrant, the defendant can pay to the officer entrusted with the execution of the warrant, any sum
specified in the warrant. Thus, where defendant had already alienated the suit property during the
process of service of summons, in such case, in order to secure the claim of the plaintiff, the
court can direct deposit of security to the full extent of the claim of the plaintiff.3

The power entrusted to a court in ant suit or proceedings for passing orders as mentioned in the
Supplemental Proceedings indicated in Part VI in the body of CPC has substantially repeated in

1. S Selvarathiam v Rajshekharan nair, AIR 2001 Ker

2 V Balakrishnan v TM Gowieshan, AIR 2001 Mad 20.

3 C.K.Takwani, Civil Procedure with limitation act 333 (7th ed. 2016).

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sec 9(ii) of the arbitration and conciliation act, 1996 by making it clear that in dealing with such
an application, the court shall have the same power as it has for the purpose of or in relation to
any proceedings before it. Thus, while dealing with an application under sec 9(ii) of the act, the
court should be guided by the same principles, which are required to be followed while disposing
of applications under order 38-40 of the Code.4

REASONABLE PROBABILITY

Where the defendant is about to leave India, it is not necessary to prove any intent on his part to
obstruct or delay the execution of any decree that may be passed against him. It is enough if the
circumstances under which he is about to leave India afford a reasonable probability that any
decree that may be passed against him in the suit will thereby obstructed or delayed in
execution.5 The court must be satisfied on two points (1) that the plaintiff has cause of action
which is prima facie unimpeachable, subject to his proving the allegations in his plaint and (2)
that the court should have reason to believe on adequate believe on adequate materials that
unless jurisdiction is exercised there is real danger that the defendant will remove himself from
the ambit of the powers of the court.6

The liability of a defendant in a suit, comes to be decided, only when a decrees passed against
him. Till such time, neither his property can be proceeded against him. Till such time, neither his
property can be proceeded against, nor can his liberty be restricted, merely on account of
pendency of a suit against him. Rule 1 and 5 of O. 38, brings about extraordinary circumstances,
wherein the defendant is burdened, even before the decree is passed against him. While placing
such a burden the court must be satisfied about the existence of factors stipulated therefor. Thus,
where the defendant had denied the allegations made by the plaintiff that he was not trying to sell
his properties and had also given an undertaking not to leave the limits of the courts, it was held
that in such in case the order directing the defendant to furnish third party security was improper.

4 Brand value Communcation Ltd v Eskay Vedio Private Ltd, A.I.R. 2010 Cal 166 (DB)

5 V Balakrishnan v TM Gowrieshan, A.I.R. 2001 Mad 20.

6 Seth Chand Mull v Purushottam, (1927)I.L.R. 50 Mad 27.

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A woman cannot be arrested or detained in Civil prison under Rule 1 of O.38 of the Civil P.C.7

The liberty of a foreign national is to be guarded zealously as the liberty of an Indian citizen and
he is not to be arrested or semi-arrested without the legal requirements being fully and
completely satisfied.8

Only in a case where the judgment debt in execution proceedings suffers an order of arrest, then
only he can seek protection under S.23 (1) of the Provincial Insolvency Act. Therefore since
order of arrest was passed under O.38, R.1 and not in execution of a decree, protection under
S.23 of Protection Insolvency Act is not available to judgment-debtor.9

Expression sufficient means to enable person to pay Court-fee excludes from its clutched
properties that are exempt from attachment in execution of decree.

The power of court to grant reliefs under O.38 and O.39 depends on the circumstances falling in
the prescribed rules. Each set of rules prescribed are distinct and different from the other and
therefore one cannot equate rule of temporary injunction with rules of attachment before
judgment although orders passed thereunder are broadly termed as interlocutory orders.10

Distinction between clauses (a) and (b)

In order to apply clause(a), it is necessary to show that the defendant has committed or is about
to commit any of the acts specified therein with intent to delay the plaintiff or to avoid the
process of the court or to obstruct or delay the execution of any decree that may be passed
against him. No such intention need be proved in cases coming under which the defendant is
about to leave India afford a reasonable probability that the plaintiff will be obstructed or delayed
in realizing his decree.11

7 A.I.R. 1991 Delhi 129(132).

8 (1998) 1 Cal HN 63(70).

9 A.I.R. 2001 AP 473 (474).

10 (2004) 5 Scale 102 (108).

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Is satisfied by affidavit or otherwise

Under Section 478 of the old Code the court could issue a warrant to arrest the defendant before
judgment where after examining the applicant, and the making such further investigation as it
thought fit, it was satisfied that the defendant had committed or was about to commit any of the
acts specified in clause(a) and (b). This provision has now been removed and the court can act
under this rule if it is satisfied by the affidavit or otherwise of the existence of the circumstances
specified in those clauses. Before the Court can act under this rule, it must have reason to
believe, on adequate materials, that, unless the jurisdiction is exercised, there is a real danger that
the defendant will remove himself or his property from ambit of the powers of the court. Where
there was reason to believe that the defendant were removing goods and selling them at less than
cost price, and that they were evading arrest without furnishing any security, it was held that the
rule was properly applied to the case. But where the defendant had to leave his place of residence
for attendance in a criminal court, it was held that the departure could not be said to be with a
criminal court, it was held that the departure could not to be with a view to delay the plaintiff or
to avoid the process of the court or to obstruct or delay execution, and that therefore an order
under this rule should not be passed.

Where in money suit there was no allegation that defendant was trying to remove or dispose of
its properties in order to obstruct or delay execution of decree that may be passed against it, then
merely on the basis of vague allegation, that defendant is in ruinous condition and that if decree
if the defendant was able to transfer or alienate property mentioned, no order or direction to give
security or attachment can be passed.12

The suit must be bona fide

In every case when an application is made under this rule, the court must be satisfied that the suit
is bona fide. Where the plaintiff is indisputably entitiled to a part of the relief claimed in the

11 Manohar & chitaley, the code of civil procedure 335 (7th ed. 2016).

12 Ibid.

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plaint, the mere circumstance of the rest of the plaintiffs claim being of a disputable character
does not render the suit mala fide.

Before the creditor can resort to the extraordinary procedure provided by this rule, he must show
that there is good reason to believe that debtor is about to depart from the jurisdiction of the court
or to make away with his property. The rule will not enables him to take out arrest before
judgment merely because it would secure easy execution of the decree.

To show cause why he should not furnish security for his appearance.

Where the court issues a warrant of arrest against the defendant, he is entitled to show cause
against his arrest. The cause must be either that he is not going to leave the jurisdiction of the
court, or not for so long a time as will obstruct or tend to obstruct the plaintiff, should he
succeed, or that the suit is not bona fide one, or that even if it is, the institution of it has been
veraciously delayed till the defendant is about to depart, in order to embarrass or coerce him. But
the court cannot simultaneously direct the defendant to furnish security for his appearance and
deposit money or other property sufficient to owner the claim. If security for appearance is
furnished and accepted, then a further direction to deposit money or other property sufficient to
answer the claims seems to be not warranted.13

Where the respondents offered themselves as securities in the application filed under O.38, R. 1
their obligation is restricted to the extent that the property sought to be attached under O.38 is
preserved till the time the suit is decreed. Once the property sought to be attached under O.38 is
available by the time the suit is decreed, the liability of the persons who offered themselves as
surities in the proceedings under O.38,R.1 ceases to exist.

The Admiralty Court ordered for arrest of foreign ship and called upon it to furnish cash security
amount. Subsequently, the cash security was charged by the Court, to the form of a letter
security, or a guarantee security, without calling for affidavits from side of the ship. No direction
for affidavits was given at all. In shopping matter demurrage and large claims are often involved;

13 (1993) 1 Ker LT 224 (226).

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these affidavits regarding fixation of security might have to be called for at the shortest notice; it
is not satisfactory that matter be disposed of on mere oral mentioning.14

If it appears to Court that the claim of a plaintiff is reasonable arguable to a certain extent, that
the defendant is a foreigner who is about to leave India, and that the decree if passed, might be
delayed in execute on because of the residence abroad of the plaintiff, Court would have
jurisdiction to issue a warrant and call for security, is vested with the court in regard to
foreigners, just as it is vested with Court in regard to dishonest and fraudulent Indian defendants;
although the foreigner might be a man of blemishes finances and character, yet, because he is a
foreigner, and because the decree against him will have to be transmitted abroad for the
execution, court is vested with the jurisdiction to call for security. This jurisdiction has to be
appropriately exercised in all cases which comes before the court.15

Amount of security

The security court has discretion both as to the manner and the amount of security. Such
discretion extends in similar manner to Court in regard to admiralty security also. Just as in order
38 matter to dispute as to the amount of type of security ia to be resolved by the First Court by
calling for papers and affidavits from both the sides, similarly in matter of admiralty security, in
case a dispute arises, the form and type of security have to be settled after calling for affidavis
and petitions from all the parties to the admiralty suit.

For determining type and amount of admiralty security at interim stage, reasonably best arguable
case of plaintiffs should be the basis.16

14 A.I.R. 1999 Cal 64 (73)(DB).

15 A.I.R. 1999 Cal 64 (73)(DB).

16 A.I.R. 1999 Cal 64(74,75)(DB).

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R. 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 to 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 been
paid by the defendant under the proviso 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.17

The money deposited by the defendant in the court under this rule is a payment to the general
credit of action and charged with alien in favour of the plaintiff on latter obtaining a decree in his
favour. If the defendant becomes insolvent, the plaintiff on his obtaining the decree , is entitled to
priorities over the claims of the Official Receiver.

Under sub-rule (2) the extent of liability of a surety on a security bond must depend on the terms
thereof and where defendant gave an undertaking not to alienate a property, which happens to be
a mortgaged property, the act of mortgagee to sell the property cannot lead to a breach of the
undertaking by the defendant.18

Deposit by defendant- effect of insolvency

Money or other property deposited by the defendant arrested before judgment sufficient to
answer the claim, is earmarked for the suit and is subjected to lien of the plaintiff in the event of
his success. Consequently, if the defendant becomes insolvent the plaintiff is entitled to
appropriate it to the exclusion of the Official Receiver and other creditors. But a security given

17 http://www.lawzonline.com/bareacts/civil-procedure-code/orderXXXVIII-code-of-civil-procedure.html

18 Sir John Woodroffe & Ameer Alis, The Code Civil Procedure (4th.ed Vol.3).

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for the appearance of the defendant in court, whenever called upon, cannot be said to be the
credit of the suit or earmarked for the general purposes of the suit.19

Or to furnish security for his appearance.

Where judgment-debtor was released on furnishing security for his appearance on a certain day
and security executed a bond for the due performance of the decree on the failure of the
judgment debtor to satisfy it, it was held that the bond was not in accordance with the courts
order and security was discharged from his responsibility on the appearance in the court of
judgment debtor on a specified day. Where on an application by the plaintiff for the arrest of the
defendant, a pleader appeared on the behalf of the latter and stood surety and thereupon the
defendant as not arrested.

The court has the power under sec.151 to enlarge the scope of the warrant by adding that
defendant be not arrested on his depositing money or furnishing security for amount.

The bond has to be construed as an undertaking to pay the amount specified therein only in the
event of the default committed by the defendant in his appearance, during the pendency of the
suit and till the satisfaction of the decree.20

Extent of suretys liability

The security to be furnished under this rule is for appearance of the defendant while the suit is
pending and the satisfaction of any decree that may be passed against him. But the fact that the
surety bond went beyond the terms of the rules and provided for the payment of the amount
cliam in the suit in the event of a decree being passed against the defendant, will not render the
bond unenforceable21 Nor will a surety for the appearance of the defendant be relieved of his

19 A.I.R. 1919 Mad 607 (609) (DB).

20 (1987) 2 Ker LT 412 (415).

21 (1929) 115 Ind Case 244 (244) (Mad).

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obligation merely because the decree is a compromise decree instead of being one on trial. 22 In
enforcing the surety bond it is the term of the security that must be looked into primarily. It is
only when the meaning is not clear that the circumstances of the case can be looked into on proof
that these circumstances were within the knowledge of the surety.23 Where the surety gives an
unconditional undertaking to produce the judgment-debtor in Court on all the hearings until the
case is finally disposed of the surety becomes liable on the failure of the judgment debtor to
appear even on one of the dates.24 where on the plain terms of a bond; the surety has undertaken
to produce a defendant , in a particular Court only, his liability cannot be extended to the
production of the defendant in any other court to which the case may be transferred. So also
where the bond makes the surety liable for the personal appearance of the defendant during the
proceeding the proceeding in connection with the suit and does not make any mention of the
execution proceeding in connection with the suit and does not make any mention of the
execution proceeding the liability of the surety cannot be extended to the execution proceedings.
Where after a surety bond is given for the appearance of the defendant in a suit the plaint is
returned on the ground of want of jurisdiction, for the presentation to the proper Court and is re-
presented in such court, the bond does not cover the suit that is started on the presentation of the
plaint in the proper court. When an order dismissing the suit for the default is set aside and the
suit is restored to the file, the surety bond given prior to the dismissal of the suit also becomes
revived. In a money suit A executed a bond agreeing to pay the decree amount if a decree was
passed against defendant. 25The suit was decreed ex parte and the defendant applied to set aside
the ex parte decree. He was ordered to furnishing security. On B ring executing the security bond
the ex parte decree was set aside but the suit was ultimately decreed. It was held that was not
liable but that As bond continued and he was liable.(10)

22 A.I.R. 1920 Mad 355 (357) (DB).

23 I.L.R. (1953) 3 Raj 308 (312) (DB).

24 1953 Raj LW 306 (309) (DB).

25 Ibid.

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R. 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. 26

Scope of the rule.

A surety for the appearance of the defendant may apply under this rule to be discharged from his
obligation. But before he is so discharged it is discharged it is essential that the defendant should
appear before the Court either voluntarily or in pursuance of a summons or warrant of arrest
issued against him under sub-rule(2).27 If he is present in court under circumstances which
exempt him from arrest, or if he appears under a protection order of the Insolvency Court in his
favour, the surety will not be entitled to be discharged from his obligation under this rule. Nor
will the insolvency of the defendant release the surety from his obligation.28

Where the defendant appears before the court under this rule, the court should directing him to
find fresh security; an order directing his detention without calling upon him to find fresh
security is not legal and if the defendant leaves the Court in defiance of the order, he cannot be
convicted for an offence under s. 225B of the Penal Code. where the defendant has been arrested
before judgment and has furnished security under this order the further procedure with regard to

26 http://www.lawzonline.com/bareacts/civil-procedure-code/orderXXXVIII-code-of-civil-
procedure.html

27 A.I.R. 1920 Mad 355 (356) (DB).

28 C.K.Takwani, Civil Procedure with limitation act 335 (7th ed. 2016).

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such security will be governed by this same order even after the decree has been passed. Hence,
where after decree the surety is discharged, the defendant must be required to find fresh security
under this rule.

A surety for the due performance of any decree that may be passed against the defendant cannot
apply under this rule for being discharged from his obligation.

R. 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 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. 29

Scope of the rule

29 http://www.lawzonline.com/bareacts/civil-procedure-code/orderXXXVIII-code-of-civil-procedure.html

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It is only in the event of a failure to comply with any order R.2 or R.3, i.e., in the event of failure
to furnish security or to make a sufficient deposit that the defendant can be committed to custody
under this rule.30 The whole period of detention should not exceed six months.31

The provision of O.38, R.4 would not be applicable in the case of a woman defendant. Because if
under S.56 of the Civil P.C. the court should not order, the arrest, or detention in civil prison, of a
woman in execution of a decree for payment of money, it could not certainly order her arrest in a
suit for recovery of money where a decree is yet to be passed.32

BIBLIOGRAPHY

30 A.I.R. 1971 Bom 87(88).

31 (1883) 7 Bom 431 (436, 437)(SB).

32 A.I.R. 1991 Delhi 129 (132).

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Primary Sources:

1. C.K.Takwani, Civil Procedure with limitation act, 1963, 7th ed.

2. Manohar & chitaley, the code of civil procedure, 1963, 5th ed


3. Sir John Woodroffe & Ameer Alis, The Code Civil Procedure,1908, 4th ed Vol.3

Secondary Sources:
1. http://www.lawzonline.com/bareacts/civil-procedure-code/orderXXXVIII-code-of-civil-
procedure.html
2. http://www.shareyouressays.com/114355/legal-provisions-of-order-xxxviii-of-code-of-
civil-procedure-1908-c-p-c-india-arrest-before-judgment
3. https://www.nls.ac.in/lib/bareacts/civil/cpc/cpco38.html

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