Arrest and attachment before judgment & appointment of receiver

(Order 38 & 40)

Arrest and attachment before judgment(Order 38)

I. Introduction

Arrest and attachment before judgment are extraordinary remedies available under the Code of
Civil Procedure (CPC). These measures aim to prevent abuse of process by ensuring that the
judgment of the court does not become infructuous due to the defendant's attempt to evade
justice or frustrate the decree.

 Purpose: To secure the ends of justice by preventing the defendant from defeating the
decree by dishonest means.
 Nature: Preventive, not punitive.
 Applicable Law in Bangladesh: Order 38), Rules 1–13 of the CPC

II. Legal Framework under CPC

▶ Order 38 of CPC – Arrest and Attachment before Judgment

Divided into two key parts:

 Rule 1–4: Arrest before judgment

 Rule 5–13: Attachment before judgment

A. Arrest Before Judgment (Rules 1–4)

�Rule 1: Circumstances for Arrest

A court may issue a warrant of arrest and bring him before the court to show cause why he
should not furnish security for his appearance if:

 The defendant is absconded or about to abscond or leave the jurisdiction of the court with
intent to delay or obstruct the execution of any decree or has disposed of or removed his
property.
 The court is satisfied that unless arrested, the defendant is likely to defeat the purpose of
the suit.

�Procedure:

 Plaintiff must file an application supported by an affidavit showing reasons.

 Court may issue a show-cause notice or direct conditional arrest.
 The defendant can avoid arrest by furnishing security or justifying presence.
Rule 2: Security

 If the defendant fails to show such cause, Court may order the defendant to furnish
security to appear and not to abscond or to deposit money or other property sufficient to
answer the claim or make such order as it thinks fit.
 Surety shall bind himself in default to pay the sum of money.

Rule 3: Procedure on application by surety to be discharged

 On such application, the court shall summon the defendant to appear or may issue a
warrant for his arrest
 After his appearance, the court shall direct the surety to be discharged and shall direct the
defendant to furnish further security. If the defendants fails, he may be sent to civil
prison.

Rule 4: Consequence of failure to comply with order of the court

 He may be sent to civil prison not more than 6 months, in case of subject matter not
exceeding 50 taka, not more than 6 weeks.

Key Points:

 This is a drastic remedy, used sparingly.

 Mere apprehension of delay is not enough — there must be real evidence of fraudulent
intent.

B. Attachment Before Judgment (Rules 5–13)

Rule 5: When Property May Be Attached

Court may order attachment if the defendant intends:

 to dispose of the whole or any part of his property.

 Or to remove the property from the court’s jurisdiction with the intention to obstruct or
delay execution.

In such cases, the Court may either-

1. direct the defendant, within a time to be fixed by it, to furnish security, in such sum as
may be specified in the order, to produce and place at the disposal of the Court, when
required, the said property or the value of the same, or such portion thereof as may be
sufficient to satisfy the decree,
2. or to appear and show cause why he should not furnish security.
The court may also direct conditional attachment of the whole or any portion of the property.
However, if conditional attachment is made and the defendant furnishes security after receiving
the notice or show cause, the order of conditional attachment shall be withdrawn. (rule 6(2).

Conditions:

 There must be a prima facie case.

 Specific intention to delay or obstruct must be shown.
 The application must be supported by an affidavit and material evidence.

Rule 6: Attachment of Property

 If the defendant fails to show cause or to furnish security as required, the property may be
attached. The court may also withdraw it at any time if the defendant furnishes security.

Rule 7: Procedure of attachment

 In the manner of attachment provided for in execution of decree.

Rule 8: Adjudication of Claims

 Any third-party claim or objection to the attachment must be investigated by the court.

Rule 9: If the defendant furnishes security or the suit is dismissed, the attachment may be
withdrawn.

Rule 10: It shall not affect the rights of 3rd parties existing before the order of attachment,

Rule 11: If decree is passed in favor of plaintiff, no application of re-attachment is required.

Rule 12: Agricultural produce not attachable before judgment

Rule 13: Small Causes Courts are not empowered to give order of attachment.

III. Principles for Granting Arrest or Attachment Before Judgment

The court must consider:

1. Bona Fide Case:

 Plaintiff must present strong evidence that the defendant is attempting to defeat the
decree. No vague and obscure allegation is sufficient to grant attachment before
judgment.
 2. Specific Intent:

 The act of absconding or disposing property must be done with fraudulent or dishonest
intent.

3. Not a Substitute for Judgment:

 These remedies are not meant to harass or pressurize the defendant.

4. Safeguards Against Abuse:

 Court exercises discretion carefully.

 False or malicious applications can be penalized.

IV. Relevant Case Laws

1. Unimarine S.A. Panama through Local Agent Bengal Shipping Line Limited and
another Vs. Bangladesh, 31 DLR (AD) 112. It was held that-

“The power is no doubt very extensive but this extra-ordinary power must be
sparingly exercised and with utmost caution, otherwise it may become an
instrument of oppression. The Court is to insist upon he proof of the allegation
in the petition for attachment before judgment by affidavit or other mule of
proof and the opposite party must be saved with notice and given an
opportunity to show cause. The Court is to be satisfied that the defendant is
about to dispose of whole or part of his property; or he is about to remove
whole or part of his property from the court's jurisdiction, and his object is to
obstruct or delay the execution of any decree that might fee passed against
him. The party imputing the motive on the defendant must be ready with the
evidence to satisfy the Court, if called upon to do so. Vague or general
allegations without any material are insufficient to invoke the power of the
Court under this provision.”

2. Islam Steel Mills Ltd. Vs. Nirman International Ltd. and others, 50 DLR (AD) 21. It
was held that-

“The power of attachment of property before judgment being an extraordinary power

of interfering with a party's right to use and enjoy its own property before any
decree is passed, the Court should be very circumspect in allowing such prayer and
must decide the matter on the strength of the facts of each case.

-----A big company could not be and should not be prevented from drawing its bills
disrupting its business merely on a vague allegation that the defendants were trying
to close down their business or that they have been trying to withdraw bills from the
Bangladesh Bank to defraud the plaintiff and to frustrate the suit.”
V. Practical Examples

Example-01
A businessman is sued for recovery of a large loan. There is evidence he is selling his properties
and preparing to leave the country. The plaintiff may seek arrest and/or attachment before
judgment.

Example-02
In a suit for specific performance, the defendant starts transferring the disputed land. Plaintiff
may seek attachment of the land to preserve the subject matter.

VI. Distinction Between Arrest and Attachment Before Judgment

Factor Arrest Before Judgment Attachment Before Judgment

Purpose To prevent absconding To prevent disposal/removal of property
Target Person (Defendant) Property of Defendant
Legal Basis Order 38, Rules 1–4 Order 38, Rules 5–13
Nature Personal restraint Proprietary restraint
Remedy Against Abuse Security, Bail, Release Application for release, damages

VII. Conclusion

Arrest and attachment before judgment are preventive measures, not punitive sanctions. They are
designed to protect the interests of the plaintiff and uphold the authority of the court by ensuring
that the judgment, if passed, can be effectively executed. However, due to their intrusive nature,
courts in Bangladesh exercise these powers with caution, guided by principles of equity and
justice.

Appointment of Receiver (Order 40)

Introduction

In civil litigation, one of the important extraordinary remedies provided by courts is the
appointment of a receiver. A receiver is an impartial officer of the court appointed to preserve,
manage, or administer property which is the subject matter of litigation, pending the
determination of rights of the parties.

The law relating to receivership is contained primarily in the Code of Civil Procedure, 1908
(CPC), particularly under Order XL (40), Rules 1–5, as applicable in Bangladesh.
Concept of Receiver

 Definition: A receiver is a person appointed by the court to receive, manage, or protect

property in dispute during the pendency of a suit.
 The receiver acts as an officer of the court, not as an agent of either party.
 The primary object is preservation of property and prevention of its waste, damage, or
misappropriation until the rights of parties are finally determined.

Statutory Basis under CPC (Order 40, rule 1-5)

Rule 1 – Power to Appoint Receiver

The court may appoint a receiver by removing any person from the possession or custody of the
property and committing the same to the possession or custody or management of the receiver:

Before or after decree – whenever it is just and convenient.

1. For the purpose of:

o Managing property,
o Preserving property,
o Collecting rents and profits,
o Executing documents,
o Performing acts which the owner could do for the benefit of property.

Rule 2 – Remuneration

 Court fixes the remuneration of the receiver.

Rule 3 – Duties of Receiver

 Furnish security,
 Submit accounts,
 pay the amount due from him
 Be responsible for loss due to willful default or gross negligence.

Rule 4 – Enforcement of Receiver’s Duties

 If the receiver fails in duties, court may attach and sell his property to make good the
loss.

Rule 5 – When Collector May Be Appointed

 In suits involving property under management of a Collector, the Collector may be

appointed receiver.
Principles Governing Appointment of Receiver

The appointment of a receiver is a discretionary power of the court, guided by the principle of
“just and convenient.” However, while appointing receiver emphasis should be given more on
the word ‘just’. So, a receiver should not be appointed when it is found to be convenient only but
not just. Appointment will be just if it is necessary for the protection, preservation and better
management of the property and also for prevention of injury to the property. Some established
principles are:

1. Prima facie case: There must be a strong prima facie case by the applicant.
2. Protection of property: Appointment is necessary to prevent loss, damage, or
mismanagement of property.
3. Neutrality: Receiver is not appointed if it would unjustly deprive a party in lawful
possession.
4. Balance of convenience: Court considers whether appointment would serve justice and
prevent irreparable injury.
5. Last resort: Appointment of receiver is considered a drastic remedy; courts use it
sparingly with great caution.

Case Laws
Bangladesh case laws emphasize that courts should avoid disturbing possession unless
absolutely necessary.

 Md. Afruz Miah and others Vs. Al-Haj Md. Siraj Miah and others, 39 DLR
360. It was held that-

“The object and the purpose of appointment of a Receiver may generally be

stated to be the preservation of the subject matter of the litigation from being
wasted or damaged pending a judicial determination of the rights of the parties
thereto. The Court does not at the time of appointment of a receiver, arrive at
any final decision on the merit of the case, its aim being merely to preserve,
the status-quo during the litigation.”

 Kamiruddin and others Vs. Md. Mukshed Ali Biswas and others, 16
BLD (AD) 60: It was held that-
“It is no doubt a discretionary power of the Court as to when a receiver may be
appointed in respect of any property but the discretion muss be exercised
judiciously according to judicial principle and not capriciously. The applicant for
appointment of receiver of any properly must show a prima facie case and good
chance of his success and no Order for appointment of receiver should be
passed to deprive a de facto possessor of the property.”
Rights and Liabilities of Receiver

 Rights: Remuneration, reimbursement of expenses, protection when acting in good faith.

 Liabilities: Personal liability for negligence, contempt of court for disobedience, removal
by court for misconduct.

Powers of Receiver

o To bring and defend suits

o To manage & protect property,
o To preserve & improve property,
o To collect rents and profits,
o To execute documents,
o To perform acts which the owner could do for the benefit of property.

Conclusion
The appointment of a receiver under CPC in Bangladesh is a vital equitable remedy aimed at
ensuring justice by safeguarding property in litigation.

Courts must balance equity, justice, and convenience before appointing a receiver, as it
temporarily displaces possession from one party to a neutral officer of the court.
Thus, it is a protective, not punitive, measure to preserve the subject matter of the suit until
final adjudication.