Description

Order 38 of the Civil Procedure Code (CPC) deals with the provisions related to arrest and attachment before judgment in civil cases. It provides a mechanism for the plaintiff to secure the judgment by taking precautionary measures against the defendant, especially when there is a risk that the defendant might abscond, or the defendant might try to dispose of assets to avoid paying a future judgment. This order allows the plaintiff to take action before the final judgment in the case.

Key Provisions of Order 38 CPC:

1. Rule 1 - Power of Court to Order Arrest:

• The court has the power to order the arrest of the defendant before judgment if the plaintiff satisfies the court that the defendant is likely to:
  • Avoid execution of any future decree.
  • Delay the proceedings or dispose of their property.
  • The plaintiff must show that there are sufficient grounds for such action, and it cannot be done arbitrarily.
• For example, if the defendant is likely to flee or sell property to avoid judgment, the plaintiff can request the court to arrest the defendant to ensure they do not evade the court's authority.

2. Rule 2 - Application for Attachment Before Judgment:

• The plaintiff can apply for an attachment before judgment if there are reasonable grounds to believe that the defendant might dispose of or remove their property to avoid payment of a future decree.
• This involves the attachment (seizure) of the defendant’s property by the court, pending the outcome of the suit.
• The court may issue an order for the defendant’s property to be attached to prevent it from being alienated or hidden.

3. Rule 3 - Conditions for Arrest:

• The court will not order the arrest of the defendant unless the plaintiff has made a prima facie case and established the likelihood that the defendant will avoid the judgment.
• The plaintiff must provide a security or a bond (usually a sum of money) to compensate the defendant in case the court rules in favor of the defendant.
• In essence, the plaintiff must demonstrate a reasonable belief that arresting the defendant is necessary to protect the plaintiff’s interests in the case.

4. Rule 4 - Procedure for Arrest:

• If the court orders the arrest, the defendant will be brought before the court.
• The defendant may be released on bail or on conditions set by the court. The purpose of the arrest is not punitive but to secure the defendant’s presence and ensure the safety of the potential judgment.

5. Rule 5 - Procedure for Attachment:

• The procedure for attachment of property before judgment includes identifying and securing the defendant's property so that it cannot be disposed of until the case is decided.
• The court can issue orders to attach the property in the hands of a third party if the property is already in someone else’s possession (e.g., a bank account or property held by a third party).
• The defendant may challenge the attachment of property by filing an objection to the court, but the attachment will remain in place unless the objection is sustained.

6. Rule 6 - Application for Release of Property:

• The defendant can apply for the release of the attached property by furnishing security (e.g., a bond) that ensures the defendant will not dispose of the property or abscond.
• If the defendant complies with the terms, the court may release the attachment on the property.

7. Rule 7 - Duration of Attachment:

• The attachment of the property continues until the case is concluded and a judgment is passed, or the defendant has given satisfactory security to the court.
• The attachment can be lifted if the defendant satisfies the court that there is no risk of asset disposition or evasion.

Punishment

Order 38 does not prescribe specific punishments but does include provisions that may affect the defendant's actions in certain ways:

1. Consequences for Evading the Judgment:

   • If the defendant is arrested and it is proven that the arrest was justified (because the defendant was attempting to abscond or dispose of property), the defendant can be held liable for the costs of the arrest and the suit.

2. Attachment of Property:

   • If the defendant disposes of the attached property or violates the court's attachment order, they can be penalized or face further contempt of court charges. Such conduct could result in additional legal action or fines.

3. Failure to Comply with Court Orders:

   • If the defendant fails to comply with the terms set for the release of attached property or other court orders, they may face penalties or further actions under the provisions of the court.

4. Punishment for False Claims:

   • If the plaintiff makes a false claim about the likelihood of the defendant absconding or hiding assets, they could be penalized for making a fraudulent claim.