Is it possible to arrest before judgement or attach property before judgement?

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arrest

There are times and situations that comes during a proceeding of a suit when the court has to make certain decisions which though not have the lifelong effect, but on discretion of the court, the time fixed by it or until the final judgement is passed remain in existence. By virtue of Section 94(e) of the Code of Civil Procedure, it is provided that after the suit is instituted by the plaintiff and before it is finally disposed of, the court may make interlocutory orders as may appear to the court to be just and convenient. Such orders can be in nature of certain payments to be paid, certain security for costs, commissions, and temporary injunctions, appointment of a receiver and arrest and attachment of property before judgement.

Dealing particularly with arrest and attachment of property before judgement, it is important to understand what causes and circumstances exists which calls for a person to be arrested or having his property attached after all in a civil proceeding. The sole jurisprudential approach is to enable the plaintiff to realise the amount of decree if one is eventually passed in favour and to prevent such attempt on the part of the defendant to defeat the execution of such decree passed against him.[1] Basically when a creditor is having a claim against a debtor, he has to obtain a decree against him and it is also be required to be execution by having such debtor arrested or having his property attached.

Order XXXIX deals with the arrest before judgement and the grounds on which such can be made when at any stage of the suit on the satisfaction of the court either by affidavit or otherwise exists two situations. Firstly, 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 has absconded or left the local limits of the jurisdiction of the court or, is about to leave or abscond the local limits of the jurisdiction of the court or has disposed off or removed from the local limits of the jurisdiction of the court his property or any part thereof. Secondly, when 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 on 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.[2]

The grounds for attachment of property before arrestment are similar, though the only existing difference is the property which must be not tampered by the defendant during attachment of property. It says that where at any stage on satisfaction of the court by affidavit or otherwise that the defendant, with the intent to obstruct or delay the execution of any decree that may be passed against him either is about to dispose of the whole or any part of his property or is about to remove the whole or any part of the 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 of 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]

Since the arrest before judgement and attachment before judgement is itself are of a serious nature, there are two conditions precedent which must be satisfied when such orders by court is made. There are that the plaintiff’s suit must be bona fide and his cause of action must be prima facie unimpeachable subject to his proving the allegations in the plaint and the court must have the reason to believe on adequate materials that unless this extraordinary power is exercised there is a real danger that the defendant will remove himself or his property from the ambit of the powers of the court.

There are certain exemptions and circumstances where arrest before judgement and attachment before judgement are not allowed. As in case, the order for arrest of a defendant before judgement cannot be obtained in any suit for land or immovable property specified in clauses (a) to (d) of Section 16 of the Code. Similarly such cannot be also allowed to be made to convert unsecured debt into secured debt or for ensuring easy execution of a decree. In case of attachment before judgement, such an exemption is provided that the court cannot order attachment or production of any agriculture produce in possession of an agriculturist.

Both arrest before judgement and attachment of property before judgment are appealable and revisable. Since an Order Made under Rule 2, 3 and 6 of Order XXXIX is appealable and revisable and it can be said to be a case decided under section 115 of the Code. Therefore as a concluding remark it can be said that the power of the court to arrest the defendant or attach the property that too before decree in favour of the plaintiff is a drastic action and must be taken after due care, caution and circumspection. It is further held that before a court acts under this rule, it must have reason to believe on adequate material that unless the power is exercised, there is real danger that the defendant will remove himself or his property form jurisdiction of the court.[4]


References:

[1] Raman Tech. And Progress Engineering Corporation v. Solanki Traders (2008) 2 SCC 302

[2] Rule 1

[3] Rule 5 (1)

[4] Sardar Govindrao Mahadik v. Devi Sahai AIR 1982 SC 989