Attachment before Judgment

In one line

Order XXXVIII lets a court freeze a defendant's property, or hold him to security, before any decree has been passed, where he is about to make himself judgment-proof.

Why the Code allows something so drastic

A suit takes years. A defendant who can see the result coming has every incentive to sell everything and leave. If the court could act only after the decree, the decree would frequently be worthless, and the more obviously guilty the defendant, the more time he would have to arrange it.

But the plaintiff has proved nothing yet. An attachment before judgment can ruin a defendant who turns out to owe nothing at all. So the Code makes the power available only on a narrow and specific finding about the defendant's conduct and intention, and it hedges it with security, compensation and time limits.

Section 94 is the enabling section: it provides that in order to prevent the ends of justice from being defeated, the Court may, if so prescribed, (a) issue a warrant to arrest the defendant and bring him before the Court to show cause why he should not give security for his appearance, and if he fails to comply, commit him to civil prison; and (b) direct the defendant to furnish security to produce any property belonging to him and to place it at the disposal of the Court, or order the attachment of any property.

Arrest before judgment: Rules 1 to 4

Rule 1: where at any stage of a suit, other than a suit of the nature referred to in section 16 clauses (a) to (d), the Court is satisfied, by affidavit or otherwise:

(a) 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, (i) has absconded or left the local limits of the Court's jurisdiction, or (ii) is about to abscond or leave them, or (iii) has disposed of or removed from those limits his property or any part of it; or

(b) that the defendant is about to leave India in circumstances affording reasonable probability that the plaintiff will thereby be obstructed or delayed in the execution of any decree that may be passed against him,

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 proviso is a practical safeguard: the defendant shall not 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.