What is Arrest Before Judgment?
Legal Provision:
Order XXXVIII Rule 1 of the CPC empowers the court to order the arrest of a defendant before judgment, if the plaintiff shows that the defendant intends to abscond or leave the court’s jurisdiction to avoid the consequences of a likely decree.
Conditions to Exercise:
The court may direct arrest only when:
- The plaintiff has a strong prima facie case;
- The court believes that the defendant intends to delay or obstruct the execution of a decree;
- Evidence shows that the defendant plans to flee or hide assets to frustrate recovery.
Procedure:
- The plaintiff must file an application with an affidavit stating reasons.
- The court may issue a show-cause notice or an immediate warrant, depending on urgency.
- If the defendant offers sufficient security or assurance, arrest may be avoided.
What is Attachment Before Judgment?
Legal Provision:
Order XXXVIII Rule 5 of the CPC allows courts to attach a defendant’s property before judgment if the defendant is likely to dispose of or remove property with intent to defeat a decree.
Conditions to Exercise:
The court will allow attachment only if:
- The defendant intends to fraudulently alienate property;
- The intent is to defeat execution of a future judgment;
- The plaintiff has a clear cause of action and evidence of such intent.
Procedure:
- The plaintiff must file a supported affidavit.
- The court can pass a conditional attachment order.
- The defendant may provide security or justification to avoid actual attachment.
Key Differences Between Arrest and Attachment Before Judgment
| Basis | Arrest Before Judgment | Attachment Before Judgment |
|---|---|---|
| Applies To | Defendant’s person | Defendant’s property |
| Legal Basis | Order XXXVIII Rule 1 | Order XXXVIII Rule 5 |
| Objective | Prevent absconding | Prevent alienation of assets |
| Relief | Physical custody | Freezing of property |
| Security Option | Bail or bond | Security or guarantee |
Safeguards and Judicial Discretion
Courts exercise extreme caution in granting these remedies. The objective is not to punish, but to ensure that a future decree is not rendered meaningless. Both arrest and attachment are preventive, not punitive in nature. The court ensures:
- The defendant receives a fair opportunity to respond.
- The remedies are used only when necessary, not routinely.
- Abuse of process is avoided through proper scrutiny.
Relevant Case Law
Premraj Mundra v. Mohd. Maneck Gazi (1951)
The Calcutta High Court laid down that mere apprehension is not enough; credible evidence of the defendant’s dishonest intent is required.
Raman Tech & Process Engg. Co. v. Solanki Traders (2008)
The Supreme Court clarified that attachment before judgment is an extraordinary remedy and should not be granted just to pressure the defendant into settling the claim.
