ARREST BEFORE JUDGMENT ~ PROJECT REPORT

AMITY LAW SCHOOL, NOIDA

ARREST BEFORE JUDGMENT

SUBMITTED BY
Tanvi A3221516135
Nikhil A3221516138
Salman A3221516139
Aman A3221516140

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 ARREST BEFORE JUDGMENT ~ PROJECT REPORT

INDEX

❖ INTRODUCTION

❖ ARREST BEFORE JUDGMENT - IN DETAILS

❖ ARREST BEFORE JUDGMENT

❖ ORDER 38 RULES (1-4)

❖ BIBLIOGRAPHY

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INTRODUCTION
INTERIM OR INTERLOCUTORY ORDERS
DICTIONARY MEANING
Provisional; temporary; not final; 1
That which intervenes between the beginning and the end of a lawsuit or proceeding to either
decide a particular point or matter that is not the final issue of the entire controversy or prevent
irreparable harm during the pendency of the lawsuit.

GENERAL
The term interim order refers to an order passed by a court during the pendency of the litigation.
It is generally passed by the Court to ensure Status quo.
The rationale for such orders to be passed by the Courts lie are best explained by Latinlegal
maxim "Actus curiae neminemgravabit" which translated to (English) stand for "an act of the
court shall prejudice no one". Therefore to ensure that none of the interests of the parties to the
litigation are harmed, the court may pass an interim order.
The term ‘interlocutory’ means, not that which decides the cause, but only settles some inter-
vening matter relating to the cause; a decree or judgment given provisionally during the course
of legal action.2

NATURE
Interim orders passed by the court may be of various courts. The nature of the order essentially
depends on the direction passed by the Court and on these basis they may be classified as under;
 Restraining order (also called Injunction), which are passed to stop either party from acting
in a particular manner during the pendency of the civil action. These are essential passed
by the court to prevent situations in which either party may suffer a harm because the other
party did/continued an act which was the matter in issue and

 Directive order, which are passed to direct either part to continue to act in a particular
manner till the conclusion of the trial or till further orders. These may be passed if the non-
continuation of the act would cause harm to the other party.

CONDITIONS NECESSARY
An interim order may be passed by the court only if the following conditions are satisfied;
1. Where there is a prima facie case in favor of the party seeking the order,
2. Irreparable damage may be caused to the party if the order is not passed and such damage
may not be ascertained in terms or money and payable as damages, and
3. Where the balance of convenience lies with the party requesting for the order.

1
Black’s Law Dictionary 1990 at pg 184.
2
Advanced Law Lexicon 2005 vol 2 at pg 2143.

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OBJECTIVE
The interim orders are to deal with and protect the rights of the parties in the interval between
the commencement of the proceedings and final adjudication. They enable the court to grant
such relief or to pass such orders as may be necessary, just or equitable. They also prevent any
abuse of process during the pendency of the proceedings. Hence, interim or interlocutory pro-
ceedings play a crucial role in the conduct of litigation between parties.3

TYPES OF INTERIM ORDERS

1. Payment in Court: Order 24

2. Security for Costs: Order 25

3. Commissions: Order 26

4. Arrest before Judgment: Order 38

5. Attachment before Judgment: Order 38

6. Temporary Injunctions: Order 39

7. Interlocutory Orders: Order 39

8. Receiver: Order 40

3
Halsbury’s Laws of England(4thedn.) para 326, pg 243

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ARREST AND ATTACHMENT BEFORE JUDG-

MENT - IN DETAILS:

ARREST BEFORE JUDGMENT

ORDER 38 RULES (1-4)

RULE 1.
Where defendant may be called upon to furnish security for appearance.- 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 jurisdiction of the court, or
(ii) is about to abscond or leave the local limits of the jurisdiction of the court, or
(iii) has disposed of or removed from the local limits of the jurisdiction of the court his property
or any part thereof, or
(b) that the defendant is about to leave India under circumstances affording reasonable proba-
bility that the plaintiff will or may thereby 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 to arrest the defendant and bring him before the Court to show
cause why he should not furnish security for his appearance:
Provided that 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; and such sum shall be held in deposit by the court until the suit is disposed of or until
the further Order of the court.
SCOPE OF THE ORDER:
An order of arrest before judgment of defendant is to be passed only
1. where the plaintiff is able to make out a prima facie case;
2. And on the court being satisfied with the ingredients regarding possible abscondance or
disposal of properties with intent to delay or obstruct execution of the prospective decree.
The jurisdiction to issue warrant and call for security is vested with the court even with regard
to foreigners, just as it is vested with the court in regard to dishonest and fraudulent Indian
defendants.4 And because the decree against him will have to be transmitted abroad for execu-
tion, the court is vested with the jurisdiction to call for security.
Where the judgment debtor and garnishee are situated beyond the territorial jurisdiction of the
execution court And there is no material to show that the debt payable is within the jurisdiction

4
V Balakrishanan v TM Gowrieshan AIR 2001 Mad 20.

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of the execution court, an order prohibiting garnishees from payment to judgment-debtor is

beyond the jurisdiction of court.5
A ship touching the temporarily at an Indian port is in the same position as a foreign personnel
defendant who is about to leave jurisdiction. If the claim against the ship is reasonably argua-
ble, then to the extent of the reasonably best decree obtainable by the plaintiff, the court can
and should obtain security from the ship before releasing her arrest.6
REASONABLE PROBABILTY
Where the defendant is about to leave India, It is enough if the circumstances under which he
is about to leave India afford a reasonable probability that any decree that may be passed
against him in the suit will thereby be obstructed or delayed in the execution.7
SUIT MUST BE BONAFIDE
In every case when an application is made under this rule, the court must be satisfied that the
suit is bona fide.
APPEAL
An order passed under O 38, r 1, is not appealable in nature though an order under rule 2 which
is to be passed when the defendant is brought before the court and where he fails to furnish
security is appealable.

RULE 2.
Security.- (1) Where the defendant fails to show such cause the court shall Order him either to
deposit in court money or other property sufficient to answer the claim against him, or to fur-
nish security for his appearance at any time when called upon while the suit is pending and
until satisfaction of any decree that may be passed against him in the suit, or make such Order
as it thinks fit in regard to the sum which may have been paid by the defendant under the
proviso to the last preceding rule.
(2) Every surety for the appearance of a defendant shall bind himself, in default of such ap-
pearance, to pay any sum of money which the defendant may be ordered to pay in the suit.
LIABILTY UNDER SECURITY BOND
The extent of liability of a surety on a security bond must depend on the terms thereof, and it
has been held that it should be strictly construed. On this principle, it has been held that the
liability to produce the defendant at any hearing of the suit does not import a liability to produce
him at the stage of execution of the decree. 8
Nor does the undertaking to produce in one court extend to producing the defendant in any
other court to which the case might be transferred.9

5
Aditya Electronics v A S Ipex Ltd 2004 AP 321, (2004) 4 Andh LT 50.
6
Stephen Commerce Pvt Ltd v O and P Vessel MT ZaimaNavard AIR 1999 Cal 64
7
V Balakrishanan v TM Gowrieshan AIR 2001 Mad 20.
8
Sardar Singh v Kishorilal AIR 1960 MP 221
9
BudhmalChampalal v Shyam Das (1958) Raj 308

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Where the defendant gave an undertaking not to alienate a property, which happens to be a
mortgaged property, the act of mortgagee to sell the property cannot lead to breach of under-
taking by the defendant.10
Where a suit dismissed for default of appearance is again restored, an order passed under O38,
r 3, becomes thereby renewed.11

RULE 3.
Procedure on application by surety to be discharged.- (1) A surety for the appearance of a
defendant may at any time apply to the court in which he became such surety to be discharged
from his obligation.
(2) On such application being made, the court shall summon the defendant to appear or, if it
thinks fit, may issue a warrant for his arrest in the first instance.
(3) On the appearance of the defendant in pursuance of the summons or warrant, or on his
voluntary surrender, the court shall direct the surety to be discharged from his obligation, and
shall call upon the defendant to find fresh security.

RULE 4.
Procedure where defendant fails to furnish security or find fresh security.-Where the defendant
fails to comply with any Order under rule 2 or rule 3, the court may commit him to the civil
prison until the decision of the Suit or, where a decree is passed against the defendant, until the
decree has been satisfied:
Provided that no person shall be detained in prison under this rule in any case for a longer
period than six months, nor for a longer period than six weeks when the amount or value of the
subject matter of the suit does not exceed fifty rupees:
Provided also that no person shall be detained in prison under this rule after he has complied
with such order.

BIBLIOGRAPHY

STATUTES/RULES

10
V Balakrishanan v TM Gowrieshan AIR 2001 Mad 20.
11
BadribhishalBhagulal v MisrilalKarnidan AIR 1954 Nag 118, (1954) Nag 17

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1. The Constitution of India, 1950

2. The Code of Civil Procedure,1908

BOOKS

1. Mulla; The Code of Civil Procedure (17th Ed.), 2007 Lexis NexisButterworths
Publications

2. C.K. Takwani; Civil procedure (6th Ed),2009, Eastern Book Company Lucknow

3. A.K. Nandi & S.P. Sen Gupta, The Code of Civil Procedure, 3rd Ed., 2009

4. M.P. Jain; The Code of Civil Procedure (2007), Wadhawa Publications

DICTIONARIES

1. Black’s Law Dictionary (9th Ed. 2009)

2. Cambridge Dictionary of American English, Cambridge (UK) (2000)

3. The Oxford English Dictionary (11th Ed. 2008)

WIBLIOGRAPHY:
BLOGS

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WEB SITES

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