Facts of the Case
- X, the plaintiff, has filed a civil suit for the recovery of immovable property.
- He wants the defendant to be arrested, possibly fearing that the defendant may flee or frustrate the decree.
- The core question is whether such an arrest is legally permissible in a civil suit for recovery of property.
Issues in the Case
- Whether a civil court can order the arrest of a defendant in a suit for recovery of immovable property.
- Under what circumstances arrest before judgment is permitted under the Code of Civil Procedure.
- Does the nature of the suit (i.e., for immovable property) allow for such an extreme measure?
- What procedural safeguards and evidentiary requirements must be met before such arrest can be ordered?
Principles Associated with It
- Under Order XXXVIII Rule 1 of the CPC, arrest before judgment is permissible only under exceptional circumstances.
- The plaintiff must prove that the defendant is:
- About to abscond or leave the jurisdiction of the court;
- Intending to obstruct or delay the execution of any decree that may be passed;
- About to dispose of his property or remove it from jurisdiction to defraud creditors or frustrate the claim.
- Mere filing of a suit for recovery of immovable property does not automatically justify arrest.
- The court must be satisfied by affidavit or other evidence that the defendant’s conduct indicates a risk of absconding or frustrating the decree.
- Even when arrest is granted, the court may order release on security or surety.
Judgment
- X cannot directly seek arrest of the defendant merely because a suit for recovery of property has been filed.
- However, if X can demonstrate valid reasons under Order XXXVIII Rule 1, he may apply for arrest before judgment.
- The court will examine the evidentiary basis and may reject the application if it finds no intent to defraud or abscond.
- Therefore, arrest is not a matter of right, and is only a discretionary power exercised with caution by civil courts.
- If such arrest is wrongly obtained, the defendant can claim damages for wrongful arrest.
