|
|||





 


PARIKSHIT KUMAR
ILS LAW COLLEGE
REMEDIES PROVIDED UNDER ORDER
38 OF CIVIL PROCEDURE CODE

ORDER 38
Rules 1-13

ATTACHMENT OF
ARREST OF DEFENDANT
PROPERTY BEFORE
BEFORE JUDGEMENT
JUDGMENT
Rules 1-4
Rules 5-13
ESSENTIAL INGREDIENTS OF ORDER
38 OF CIVIL PROCEDURE CODE
! Scope: Different from Order 21 which deals with arrest of
debtor and attachment of property after the decree.

! Object: To secure Plaintiff against any attempt by defendant

to defeat execution of decree passed against him.

! Prima Facie Case:

Case: Pertinent to show the existence of the
grounds as are specified in the Rules hitherto.
?


  
 AIR 2001 Kerala 1.
 ARREST BEFORE JUDGMENT
Rule 1:
1: Where at any stage of a suit the Court is satisfied, by
Affidavit or otherwise that the Defendant, with the intent to
delay or avoid or obstruct the proceedings of a Court.-
Court.-
! Has absconded or left the local limits of the jurisdiction of the
Court
! Is about to do the any of the above
! Has disposed of or removed from the local limits of the
jurisdiction of the Court his property or any part thereof
Or if Defendant is about to leave India and the circumstances
show reasonable probability that plaintiff may be obstructed or
delayed in the execution process
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.
 INGREDIENTS OF ARREST UNDER
ORDER 38

ΠGrounds: Prima Facie Case to the satisfaction of the Court

showing
‡ Abscondance
‡ Possibility of abscondance
‡ Disposal of Property
thereby Causing obstruction or delay in the execution of a
prospective decree.
ΠJurisdiction of the Court:
Court: ?  
 





 
AIR 1999 Cal 64.
ΠBonafide Application
 CONTINUED
ΠReasonable Probability:
Probability: Where Defendant is about to leave
India it is sufficient if circumstances prove
‡ Cause of action which is prima facie unimpeachable
‡ Existence of a danger that the defendant will leave the
jurisdiction of the court.
ΠProviso to Rule 1: No arrest if he pays to the Officer
entrusted with the execution of warrant any sum specified in
the warrant.
ΠAppeal: Order passed under Order 38 Rule 1 is not
appealable. However Order passed when defendant fails to
furnish security then such an order is appealable in nature
under Order 43 Rule 1 (q)
 CONSEQUENCES OF OBTAINING
ARREST ON INSUFFICIENT GROUNDS
ΠSection 95 of CPC:
ΠGrounds For filing application under Section 95
‡ arrest, attachment or injunction was applied for on
insufficient grounds, or
‡ Failure of suit of the Plaintiff and it appears to the Court
that there was no reasonable or probable grounds for
instituting the same.
ΠCompensation:
‡ Not to exceed fifty thousand rupees, for the expense or
injury (including injury to reputation) caused to him
‡ Amount not to exceed the limits of its pecuniary
jurisdiction.
 SECURITY
! Rule 2 Failure to show cause. Defendant to deposit in the
Court
‡ Money Sufficient to Answer the Claim: as laid down in
p



 

?  (1920) 56 Cal 700.
‡ Other property sufficient to answer the claim against
him.
‡ Security For Appearance

! Rateable Distribution:

! Appeal: Under Order 43 Rule 1 clause (q) an appeal lies

from an order passed under this rule.
PROCEDURE FOR DISCHARGE OF
SURETY
ΠApplication under Rule 3 of Order 38 for being discharged
from obligation.

ΠOn such application the Court shall either summon the

Defendant to appear or may call for his arrest in the first
instance.

ΠDischarge of surety on appearance of defendant in

pursuance of summons or warrant and direction to
defendant to find fresh security.
 FAILURE OF DEFENDANT TO
FURNISH SECURITY
ΠRule 4: Where Defendant fails to comply with the
provisions of Rule 2 or Rule 3, the Court may commit him
to Civil Prison until the decision of the suit or, where a
decree is passed against the defendant, until the decree has
been satisfied.

ΠTime Period: Maximum 6 months and where subject matter

does not exceed Rs. 50, 6 weeks.

ΠAppeal: Under s. 104, clause (h), though not specified under

O. 43 Rule 1
IMPRISONMENT FOR ENFORCEMENT
OF CONTRACTUAL LIABLITY
Whether it is right to enforce a contractual liability by imprisoning a
debtor in the teeth of Article 21 of the Constitution and Article 11 of
the International Covenant on Civil and Political Rights?

Article 11 of the Covenant states that ³No one shall be imprisoned

merely on the ground of inability to fulfill a contractual obligation.´

The Central Law Commission¶s fifty fourth report: Upheld the

validity of Section 51 (which includes arrest and detention) read with
O.21 and did not recommend further changes in the position of law.

However, it said that if the debtor once had the means but now has
not, or if he has money now on which there are other pressing claims,
it is violative of the spirit of Article 11 to arrest and confine him in jail
so as to coerce him into payment.
 à


u


 
 



 AIR 1980 SC 470
Krishna Iyer J. while delving with the provisions laid down in
CPC said
³The simple default to discharge is not enough. There
must be some element of bad faith beyond mere
indifference to pay, some deliberate or recusant
disposition in the past or, alternatively, current means to
pay the decree or a substantial part of it. The provision
emphasizes the need to establish not mere omission to
pay but an attitude of refusal on demand verging on
dishonest disowning of the obligation under the decree.´
||à

  

Sub Rule 1of Rule5 provides for Furnishing of security, or
production of property or its equivalent value where any of
the grounds mentioned in the sub rule are satisfied.
Sub rule 2 of this Rule provides that the property and the
estimated value thereof needs to be specified unless the
Court directs otherwise.
Sub rule 3 provides for conditional attachment of the whole
or any part of the specified property.
Sub rule 4 provides that any attachment made without
complying with the provisions in sub rule 1 of this rule shall
be void.
SCOPE AND OBJECT OF RULE 5
Realisation of decretal amount if one is eventually passed
from defendant and to prevent the decree from becoming
infructuous.

Essential Grounds

A Disposal of whole or part of the property.

A Removal of property or part of it from local limits of the
jurisdiction exercised by the Court.
A Intention of causing obstruction or delay in the
proceedings
 GUIDING PRINCIPLES FOR
ATTACHMENT BEFORE JUDGMENT
! Rule 5 of Order 38 of CPC: if the ingredients for invoking it
are lacking in the application and the affidavit filed in
support thereto attachment before judgment order cannot be
ordered. R
!"


R


AIR
R
!"


R


AIR 1998 Del
70
! Court Must be satisfied: Mere Mechanical repetition
without any truth underlying the statement is not sufficient.
Satisfaction of the Court lies not only in directing the
Defendant to furnish security but also in directing the
Defendant to show cause as to why he should not furnish
security.  



#$

%
& '

(()*++,-


(()*++,-

.&
/01   '
 


2 
& . . AIR 2000
Mad 213
 CONTINUED
ΠAffidavit: An affidavit based on Information not directly
obtained must reveal the source of the information.
#

!

 
 AIR 1986 All 87
(Amendment by Allahabad High Court)
ΠNotice To Defendant: The Order of attachment must be
passed after notice to Defendant in Form No. 5 in Appendix
D. An order passed without compliance with the provisions
of Rule 5(1) is void.   
?

 
? AIR
2001 SC 2220 R
!"


R

 AIR 1998
Del 70.
R 5(4) is a protective measure for defendant to invalidate
order passed against him without notice. 
 




  AIR 1986 Mad 70.

 CONTINUED
ΠIntention to dispose of the property:
property: Sine qua non for order
of attachment or an order demanding security before
judgment is the dishonest intention to dispose of the
property. ë a

R$ 
p 




? 

-
 2005 (1) ARBLR 264 (Delhi)


) -


ΠRateable Distribution

ΠSecurity:
 TRANSFER OF PROPERTY DURING
ATTACHMENT
ΠSection 64 of CPC: Provides that when property is attached
in execution of decree any private transfer contrary to the
attachment shall be void as against all claims enforceable
under the attachment. Same principle to apply for
Attachment before Judgment provided the decree was
passed in favour of the Plaintiff at whose instance decree
was made.

But when a sale deed has already been executed prior to the
institution of the suit but has not been registered it shall be
held to be valid. # 
! 


!
 (1991)
1 SCC 715.
 CONTINUED
ΠWhether property can be transferred when after attachment
of property suit is dismissed and appeal is pending?
Rule 9 of the said order states that when Defendant
furnishes security or the suit is dismissed then the order for
Attachment before judgment shall be withdrawn.

Differing Opinions of High Courts when Suit dismissed for

Default is restored
Allahabad ë
If a suit is dismissed for default, the attachment
ë
If
comes to an end even if there is no order made for
withdrawing it and even if the suit is afterwards restored.
!$

! 

R
$' AIR 1973 All 67
 CONTINUED
ΠTravancore-Cochin( Now Kerala High Court) Full Bench
Travancore-
Decision:-- Contrary view taken ± Where an order
Decision:
dismissing the suit is reversed and the decree is passed in
favour of the plaintiff an attachment before judgment would
revive as on the date passed. a
!$

R


  AIR 1952 Tr- Tr-Coch 414

ΠMadras: Similar view was taken in $ 

? $

AIR 1943 Mad 515

Conflict Resolved through insertion of Amendment Act of
1976
Sub rule 2 of Rule 11A provides that an attachment made
before judgment in a suit which is dismissed for default is
not to be revived merely because of the fact that the order
for the dismissal of the suit for default has been set aside
and the suit has been revived.
 CONTINUED
! 
a

. 
? AIR 1982 SC 989
The Supreme Court while delving into the issue has
observed as follows:-
follows:-
³In fact, a dismissal of the suit may terminate the
attachment and the same would not be revived even if
the suit is restored and this becomes manifestly clear
from the newly added provision in Sub-
Sub-rule (2) of Rule
11--A of Order 38, CPC´
11
! Conclusion: Sale and other transfer is valid even if, after the
attachment order made before judgment, the suit is
dismissed and an appeal is pending as the order is not
revived merely on the restoration of a suit.
 PROPERTY SITUATED OUTSIDE
JURISDICTION
ΠWhere the property sought to be attached is outside the local
limits of the jurisdiction of the Court, the proper course to
follow is to transmit the order for Attachment to the District
Court in whose jurisdiction the property is situated under
Section 136 of the CPC.
ΠThe failure on the part of the Court which issued the
Attachment order in sending the order and the connected
papers to the District Court will not invalidate the
attachment order as such.   
?

 
?
AIR 2001 SC 2220.
It is only a matter of procedure and if objection is raised to
the effect that the procedure was not complied with , the
Court can issue appropriate direction to cure the same.
MODE OF MAKING ATTACHMENT
! Rule 7 provides for manner in which the Attachment before
judgment shall be made. It provides for the judgment to be
made in the same manner as attachment in execution and
renders fresh attachment unnecessary.

! Prohibitory order must be published in the manner as

provided under Order 21 Rule 54.
54.

! Attachment would not be held null and void even if there

were irregularities in effecting it. 
# 


 AIR 1961 Orissa 22.

 ADJUDICATION OF CLAIMS
ΠRule 8 provides for adjudication to be in the same manner
as provided in Order 21 Rule 58.
ΠAdjudication of Claims: The Court upon hearing such claim
may
‡ Allow the claim and release property from attachment
either wholly or to such extent as it thinks fit.
‡ Disallow claim or objection.
‡ Continue the attachment subject to any mortgage, charge
or other interest or favor of any person.
‡ Pass any other order.
 EFFECT OF ATTACHMENT ON
RIGHTS OF THIRD PERSONS
Rule 10: Attachment shall not affect the rights,
existing prior to the attachment, in the following
cases--
cases
! Rights of persons not parties to the suit.
! Attachment before judgment not to bar rights of
other decree holders.
! Sale of property prior to attachment ( as explained
before)
! Agreement to Sell: It creates an obligation as
regards the ownership of the property.
 RE-ATTACHMENT OF PROPERTY
RE-
AFTER PASSING OF DECREE
ΠRule 11:
11: Where property is under attachment and then a suit
is decreed in favour of the plaintiff, it shall not be necessary
for the plaintiff upon an application for execution of the
property to apply for re-
re-attachment of the property.

ΠApplication for execution of decree is necessary as indicated

by the words, ³Upon an application for execution´

ΠLimitation period of 3 years is prescribed for an execution

petition of attachment before judgment after a decree is
passed.
 à|
   

ΠRule 12:
12: Agricultural produce shall not be attachable before
judgment: ³Agricultural produce´ denotes
‡ Growing crop standing on the field or
‡ Crop lying on the threshing floor or
‡ Fodder stock
Grain separated from chaff is agricultural produce within
this rule. 
?


?


?


?
AIRAIR 1962 Raj 82.
ΠRule 13 : Small Cause Court shall not be empowered to
attach immovable property
This Rule was added by the Amending Act 1 of 1926 and as
that Act was declaratory by nature, the section is
retrospective in nature.
p


 pp