When the property of a person can be attached that person can be arrested before the judgement in a suit?
The decree-holder having a claim against judgment debtor has to first obtain decree and then execute the said decree. 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 main objective of justice and the judicial procedure is to protest preserve and enforce the rights of parties. This is done through judgement and decree. The decree-holder having a claim against judgment debtor has to first obtain decree and then execute the said decree. 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.
(1) Arrest before judgment
Under Rules 1 to 4 Order 38 of the code, provision has been made for arrest before judgment.
Where at any stage the court is satisfied, either by affidavit or otherwise
(a) That the defendant, with intent to delay the plaintiff, or
(b) To avoid any process of the court,
(c) To Delay the execution of any decree that may be passed against him
• Has run away
• Or left the limits of the jurisdiction of the court
• Or about to left the limits of the jurisdiction of the court
• Has disposed of or removed from the local limits of the jurisdiction of the court his property
That the defendant is about to leave India
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.
(2) Discretion of Court
To arrest the defendant and that too before a decree in favor of the plaintiff is a drastic action and must be taken after due care, caution and circumstances. The court has to satisfy that the defendant will remove himself or his property from the jurisdiction of the court.
An application for arrest may be made by the plaintiff at any time after the plaint is presented even before the service of the summons is affected by the defendant.
Security Rules 2-4
When the defendant fails to show cause why he should not furnish security for his appearance, the court shall order him either to deposit in court money or other property sufficient to answer the claim against him, to furnish security for his appearance at any time when called upon.
Rule 3 lays down the procedure to be adopted on an application by the surety for the discharge of liability.
When the defendant fails to furnish security or to find fresh security, the court may commit him to civil prison until the decision of the suit, or where a decree is passed against him, until the decree has been executed.
The period of detention in civil prison will not exceed six weeks if the value of suit does not exceed Rs50/ and Six months, in other cases.
Where arrest before judgment not allowed?
An order for the arrest of a defendant before judgment cannot be obtained in any suit for land or immovable property.
An order passed under Rule 2, 3 or 6 of Order 38 is appealable
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