Arrest and Attachment Before Judgement (ORDER XXXVIII)


The arrest and detention of the debtor ‘s judgment in a civil prison is one of the modes of execution of the decree. The holder of the decree has the right of selecting a method to execute the decree and usually cannot compel a tribunal to impose a specific mode of implementation in the midst of exceptional circumstances. The conviction and imprisonment of the judgment delinquent in the legal individual is protected by Articles 55 to 59 and Rules 30 to 41. The court lists different ways of implementing them. Another of these approaches is the detention of a federal court defendant. The specific jail requirements protect the privileges and duties of the issuer of the verdict as well as the decision holders. The laws are of a compulsory nature and must be explicitly dealt with. They are not of a punitive nature. The purpose of the imprisonment of a prisoner in a civil jail is twofold. On the one hand , it enables the holder of the decree to recognize the fruits of the decree passed in his favor; while, on the other hand, it protects the debtor who is not in a position to pay the fees for purposes beyond his reach or who is unable to pay the fees.[1]Consequently, the simple refusal to pay the sum does not warrant the prosecution and imprisonment of the debtor, as he cannot be held to have failed to pay the amount to the holder of the order.


In fact, when it comes to the arrest and attachment of property before a verdict, it is necessary to consider what reasons and conditions arise that allow for a defendant to be arrested or to have his property attached to him or her in a civil case. The only legal solution is to allow the complainant to comply with the sum of the decree if it is actually passed in favor of it and to avoid such an effort by the defendant to circumvent the execution of the decree passed against him. By theory, where a borrower has an argument against a debtor, he must procure an injunction against him which must then be followed by the seizure or attachment to such a debtor ‘s land.

Order XXXIX deals with the detention before the judgment and the basis on which that detention can be made where two conditions occur at either point of the suit, either by affidavit or otherwise, to the satisfaction of the trial. In the first instance, the defendant, with the intent of delaying the petitioner or preventing any trial before the court, or of obstructing or stopping the enforcement of any order that might be issued against him, has absolved or abandoned the local limits of the jurisdiction of the court or is about to abandon or absolve the local limits of the jurisdiction of the court or has disposed of or withdrawn from the local limits of the jurisdiction of the court. Second, when the defendant is almost certain to leave India under contexts that give a reasonable likelihood that the plaintiff will or may be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit, the court may issue a warrant for the arrest of the defendant and bring him before the court to show cause why he should not provide security for his application.


When Arrest and Detention can be ordered:

Where the decree is for the payment of money, it may be executed by the arrest and detention of the debtor ‘s judgment[2]. Similarly, in the event of an order for the actual execution of a contract or for an injunction, the debtor can be seized and imprisoned. Also, if an injunction is against a company, it can be enforced with the leave of the court by the arrest of the directors or other officials in a civil jail[3].

Who cannot be arrested:

  1. In compliance with the Rules of Criminal Procedure, the following types of people cannot be charged or held in a federal prison:
  2. Judicial officials, whether heading to, presiding at or returning from their court;
  3. Female;
  4. The claimants, their pleadings, mukhtars, tax officers and known officers and their witnesses behaving in disobedience to the summons either going to, or attending or returning from the court;
  5. Members of the statutory authorities;
  6. Any individual or class of persons whose arrest, according to the Government of the State, may be subject to danger or inconvenience to the public;
  7. A judgment-debtor where the decretal balance does not exceed two thousand rupees.

Power and Duty of Court:

The clauses relating to the arrest and imprisonment of the debtor shall secure and safeguard the rights of the holder of the declaration. Unless the debtor has the means to pay and either fails or neglects to satisfy his commitments, he will be sent to a federal jail. Nevertheless, a simple refusal to pay cannot result in the arrest or imprisonment of the debtor. Before directing the arrest, the court must be convinced that there was an aspect of bad faith, “not a pure reluctance to pay, but a disposition of rejection on demand that lags behind the rejection of the duty under the judgment. “The values have been concisely and suitably clarified by Krishna Iyer, J. in Jolly George Verghese v. Bank of Cochin[4].

Recording of Reasons:

The Court is obliged to document the reasons for its agreement with the arrest of the debtor. Registration of the causes is compulsory. The inability of the court to report the reasons for its satisfaction amounts to violating the substantive and necessary provision of rule. These explanations will be reported at any time and in any case in which the judgment-debtor is required to be detained.

Substantive Provisions:

  • Section 55

Object-The purpose of this section is to avoid the vexatious forms of opposition to the execution of the proceedings, which continuously hinder the execution of the decrees by the holders of the decrees. Nevertheless, before a delinquent may be charged, this provision regulates his case and points down other limits.

Applicability-The rules of this Section provide that, once a court warrant is issued, a judgment debtor must be seized at any time of day and on any day of the month and brought before the Court as soon as possible subject to these limits:

  1. Upon sunset and before sunrise no home or building shall be reached.
  2. That the outside door of a house may not be torn open if the house is inhabited by a judgment-debtor and declines or forbids the accommodation of the judge, so if the officer allowed to take part in the arrest is properly granted access to any dwelling, the door of a room in which the judgement-debtor is to be found can be opened.
  3. The official, permitted to detain, must inform him that she is voluntarily required to exit from the room before entering the room in order to carry out her detention if the room currently contains a woman who is not a judgment-debtor and whose practice does not appear in public.
  4. Where the decree is for the payment of money, the judgment-debtor will not arrest the official arresting him if he pays the full amount, and the expense of the arrest.
  5. Under this clause, a woman is excluded from detention. Nevertheless, a woman may be held in a civil jail by means of an order for the restoration of marital rights.
  • Section 56

Scope-This provision exempts all women from imprisonment on the grounds of an order for payment of property.In Moonshee Buzloor Ruheem v. Shumsoonissa[5], however, it has been held that a woman may be detained in a civil prison by means of a decree for the restitution of marital rights. Because the provision of the declaration for the restoration of conjugal privileges in 1923 is enforceable only through the appropriation of the land of the claimant.

  • Section 58

Scope-This clause calls for a fixed imprisonment term for the judgment-debtor, which does not provide for liability to be forgiven thereby; the borrower shall be allowed to continue against the properties of the debtor. It applies to all decrees, not just the money decree alone. However, the duration of imprisonment imposed in section 58 applies only to the money decree.

Procedural Provisions:

  • Order XXI, Rule 37

Scope and application- Warning may be issued against a judgment-debtor who has made an appeal to be found insolvent in certain execution proceedings. The Court can issue a warrant for the arrest of the debtor only if he fails to appear in compliance to the notice given pursuant to Rule 37(1). The Court must, if it makes an appearance, continue with the investigation as provided for in Rule 40. After conclusion of such an investigation, if the Court wishes to grant an order for the detainee to be held in a civil jail, it may require him to be imprisoned if he is not already under detention, as provided for in sub-rule (3) of Rule 40.

The executing Court will obviously find the means of the judgment-debtor to pay the balance of the decision after the latter has been convicted and placed before the Court and before determining whether or not the judgment-debtor is to be sentenced to imprisonment. It is evident from the clauses alluded to in Rule 37 that, before issuing an order for the detention of the debtor, the executing court is required to issue a notice calling for the debtor to provide testimony as to why he should not be sent to a civil jail. Under the clause of Rule 37, this notice can be suspended if the executing Court is convinced that the judgment-debtor is liable to forgo or leave the local limits of the jurisdiction of the Court with a view to delaying the execution of the judgment. To the discretion of the implementing Judge, the dimension of willful denial or neglect must ultimately be decided by the holder of the decree.

The Court may refuse to send the convict to prison if it is convinced that the warrant against him has been issued without authority or gained through bribery or that the debtor ‘s judgement is not in a good state of health for imprisonment. The path of detention is a drastic outcome which may be enforced where there is ample proof of failure to comply with the order, given the fact that the debtor has adequate means to fulfill the same. If this element is confirmed, there will definitely be no warrant of arrest. Where the Court does not issue a judgment-debtor, in the presence of the pleader of the decree-holder, after a notice under this rule is sent to him and a warrant for his arrest is issued, the proceeding constitutes a motion for step-in-help.

Purpose-The goal is to shield decent debtors who are unable to pay duties on grounds outside their influence. The law accepts that no one should be suspected of violating a rule of natural justice. Nevertheless, the Court does not automatically give a warning. It affects the integrity of man. It is important to also note the high importance of human integrity and moral worth.

  • Order XXI, Rule 40

Scope of the rule-The use of the term ‘then’ in the clause for the Court to offer an opportunity for the claimant to prove cause does not automatically mean that the Court must delay the complaint until another time. The right granted to the judgment-debtor in compliance with section 51 of the Code cannot be revoked at all.

In order to allow the judgment debtor to comply, the Court may leave the judgment debtor under the custody of an officer of the Court prior to the issuance of the order of detention. If the administrative tribunal has been given the right of the judgment-debtor involved to be release pursuant to Article 58(1)(a) CPC or the Tribunal cannot, in view of Section 58(1)(a) CPC, use its powers for the warrant of re-arrest before the statutory term of three months expires.Subsection (2) requires the Court to free the judge-debtor from the protection of his furniture, which ensures that it will provide sufficient security and not illusory health.


In 1866, in the case of Gamble Vs Bholgir [6], the power of appointment before a verdict has been found to be exercised with considerable discretion and no court can award this appointment for purposes of light or without the trustworthy evidence that the criminal is going to dispose of his property or expel him from the jurisdiction of the Tribunal.

In Govindrao Mahadik v. Devi Sahai[7], “Attachment prior to judgment is levied if it is found that the Court is satisfied on the claimant’s request that the defendant, with the aim of obstructing or delaying the enforcement of any order that may be issued against the plaintiff, shall dispose (a) of his entire property or of a portion thereof; or (b) that he or she is about to remove all or any part therefrom.”Just to inform the complainant that his decision would be honored if it was rendered is the main intention behind this order levying attachment before judgment. The protection is a kind of against a decision which is futile unless the complainant may disagree with the decision.

In the case of Mamidala Suresh Babu And Ors. vs Tirumalasetti Krishnamurthy[8], the Hon’ble High Court of Andhra Pradesh, it was held that the sine qua non for a pre-trial annexing order or a protective warrant before a verdict is a disposition of, or disposition of, the properties of the defendant in a deceptive way , in order to derogate from or to delay a potential injunction in court. In arriving at a decision on the factual conditions of Order 38 Rule 5, C.P.C, the merits of the contesting parties’ arguments are clearly ancillary considerations for the Court to weigh.


There are other limitations and cases in which detention before judgment and connection before judgment are not allowed. The detention warrant of an accused prior to a verdict, as in case of a land or immaterial property in compliance with clauses (a) to (d) of Section 16 of the Code, shall not be obtained in any proceeding. Likewise, unsecured loans will not be changed to structured loans or the simple enforcement of a law. In the case of an appendix to a decision, the court is prohibited from an appendix or production of any agricultural products in the hands of a peasant.

Arrest before judgment and damage to properties before judgment are both appealable and revisable. Because a decision made pursuant to Rule 2, 3 and 6 of Decision XXXIX is appealable and revisable, it may be assumed that it is a case determined pursuant to Article 115 of the Code. Therefore, as a closing statement, it should be seen that the authority of the court to detain the defendant or to add the property to the complainant is a dramatic step that must be done with due consideration, patience that circumspection. This is also held that, unless a court acts in compliance with that law, it will have cause to assume that, when the authority is exercised, there is a reasonable risk that the defendant may withdraw himself or his properties from the jurisdiction of the court.


  • Takwani, C.K., Civil Procedure, 3d ed., (Lucknow: Eastern Book Company, 1996).
  • Bakshi, P.M., Supplement to Mulla’s Code of Civil Procedure 14th ed., (Bombay: N.M. TripathiPvt., Ltd., 1992).
  • Mehta, M.S., A Commentary on the Code of Civil Procedure (Allahabad: Wadhwa and Company, 1990).

[1] C.K. Takwani, Civil Procedure, 5th edition (2006), p. 458.

[2]Rule 30 of order XXI.

[3]Rule 32 of order XXI.

[4]AIR 1964 MYS 185

[5]AIR 1950 EP 111

[6]2 BHCR 146,161

[7]1982 AIR 989, 1982 SCR (2) 186

[8]2006 (3) ALD 605, 2006 (3) ALT 250

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