Legal Provisions of Order XXXVIII of Code of Civil Procedure, 1908 (C.P.C.), India – Arrest before Judgment

(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.

The defendant shall not, however, 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 plaintiff’s claim. (Order XXXVIII, Rule 1)

Security:

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. (Order XXXVIII, Rule 2).

Where the defendant fails to deposit in court money or other property sufficient to answer the claim against him or to furnish security for his appearance, 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.

No person shall be detained in prison for a longer period than six months if the amount or value of the subject-matter exceeds Rs. 50, nor for a longer period than six weeks when the amount or value of the subject-matter of the suit does not exceed Rs. 50. (Order XXXVIII, Rule 4).

Attachment before judgment:

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 fixed time, 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. [Order XXXVIII, Rule 5 (1)].

If an order of attachment is made without complying with the provisions of sub-rule (1) of Rule 5, such attachment shall be void. [Order XXXVIII, Rule 5 (1)].

Attachment before judgment of movables could be ordered:

Where in an attachment before judgment, in suit for recovery of dues, application was filed by plaintiff for directing defendant to furnish the security. But defendant had failed to do so. Part of suit claimed was admitted and there was refusal to pay admitted amount by defendants.

Held, that attachment before judgment of movables could be ordered as defendant was alleged to have delayed payment and with a view to defeat payment of amount to creditors including plaintiff had made attempt to part with their immovable and movable properties.

Order of attachment when cannot be legal:

An order of attachment passed before judgment without any opportunity to defendant to defend it would be illegal and unsustainable.

Where the defendant fails to show cause why he should not furnish security, or fails to furnish the security required, the court may order the attachment of the property as may be sufficient to satisfy the decree. Where, however, the defendant shows such cause or furnishes the required security, the court shall order the attachment to be withdrawn, if the property has already been attached. (Order XXXVIII, Rule 6). The attachment order shall also be withdrawn if the suit is dismissed. (Order XXXVIII, Rule 9).

Attachment before judgment:

Failure of court, which passed order of attachment of property not situated within its jurisdiction, to send said order to District Courts within whose jurisdiction attached property is situated, would not invalidate order of attachment.

Under Order XXXVIII, Rule 5 of the Code, the court has first to ask the appellants to furnish security and only after they fail to furnish security, conditional order of attachment can be made. Order XXXVIII, Rule 5 is a mandatory provision, and the court has to satisfy itself first that the defendant is intending to obstruct or delay the execution of the decree that may be passed against him.

If the order passed by the court does not speak or show that the court has applied its mind to the requirements of Order XXXVIII, Rule 5, or if the order passed by the court does not clearly show that it has considered the material on record, or if the order does not show that the court is satisfied that the defendant with intent to obstruct or delay the execution of the decree that may be passed against him is about to dispose of the whole or any part of the property, the order would be in violation of Order XXXVIII, Rule 5. Order XXXVIII, Rule 5 as it stood before the amendment in 1976, would have at the most rendered such order irregular; but, now, sub-rule (4) inserted by Act of 1976 reads that if an order of attachment is made without complying with the provisions of sub-rule (1) of Rule 5 of Order XXXVIII, such attachment shall be void. Sub-rule (4) has been inserted with a view to see that the courts do not pass such an extraordinary order in the cavalier manner end without satisfying themselves about the requirement of Order XXXVIII, Rule 5.

The simple reproduction of the language used in Order XXXVIII, Rule 5 will not meet the requirements of Order XXXVIII, Rule 5 of the Code. Unless the court is satisfied with the material on record with the requirements of Order XXXVIII, Rule 5, the court shall not hasten to pass an order for attachment.

Since Order XXXVIII, Rule 8, C.RC directs that adjudication of claims to property attached before judgment should be done in the same manner as an adjudication of claim against attachment of the property in execution of a decree, Order XXI, Rules 58 and 63, Civil Procedure Code will automatically apply to the claims made against an order of attachment before judgment.

The remedy of an attachment before judgment is an extraordinary remedy and should be granted with the utmost care and caution.

Section 141 of the Code provides that “the procedure provided therein in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction”. The Explanation amplifies the doubt that the expression “proceedings” includes proceedings under Order IX, but does not include any proceeding under Article 226 of the constitution.

It would thus be clear that the proceedings envisaged for adjudication under Order XXXVIII, Rule 8, read with Order XXI, Rule 58 is a civil proceding. When attachment of the properties has been made before the judgment, they become part of the civil proceedings in the suit. Thereby they become part of the decree.

Private alienation of property after attachment void:

Section 64 lays down that where an attachment has been made, any private transfer or delivery of the property attached or of any interests therein and any payment to the judgment-debtor of any debt, dividend or other moneys contrary to such attachment shall be void as against all claims enforceable under the attachment.

The attachment, however, merely prevents and avoids private alienation and confers no right on the attaching creditor. It does not invalidate a judicial sale in execution of another decree. Again, a private transfer pending the attachment would be void only as against all claims enforceable under the particular attachment and no other.

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. [Order XXXVIII, Rule 10].

Attachment of property is a serious proceeding and courts ought to be careful not to lend themselves as tools of oppression.

Order XXXVIII, Rule 10, C.P.C provides that attachment before judgment shall not affect the rights existing prior to the attachment of persons not parties to the suit. Under section 40 of the Transfer of Property Act, a purchaser under a contract of sale of land is entitled to the benefit of an obligation arising out of that contract and it provides that obligation may be enforced inter alia against a transferee with notice.

Section 91 of the Trusts Act also recognises this principle that the transferee with notice of an existing contract of which specific performance can be enforced must hold the property for the benefit of the party of the contract.

The right of the attaching creditor shall not be allowed to override the contractual obligation arising from an antecedent agreement for sale of the attached property. The attaching creditor cannot ignore that obligation and proceed to bring the property to sale as if it remained the absolute property of the judgment-debtor.