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Report No. 54

Chapter 38

Arrest and Attachment before Judgment

Introduction

38.1. The provisional remedies which may be required to prevent the defendant from absconding, and property from disappearing or being wasted pending litigation, are also provided for in the Code. The Code here deals with the following subjects; arrest before judgment; attachment before judgment; compensation for improper arrests or attachment;1 temporary injunctions; interlocutory orders; and, lastly, the appointment of receivers.

1. Section 94-95.

38.2. The rules as to arrest before judgment in England superseded the writ of ne exeat regno, and the Indian rules roughly correspond to the English Rules of Court.

38.3. Ne Exeat Regno1 (that he leave not the kingdom), was a prerogative writ whereby a person is prohibited from leaving the realm, even though his usual residence is in foreign parts. The writ is directed to the sheriff of the county in which the defendant is resident, commanding him to take bail from the defendant not to quit England without leave of the court. It is granted on motion, supported by affidavit showing that a sum of money is due from the defendant to the plaintiff, or will be due on taking accounts between them, and that the defendant intends to abscond.

1. Mozeley & Whiteley Law Dictionary, (1970), pp. 232, 233.

38.4. The writ was formerly applied to great political purposes, but it is now applied in civil matters only, and is almost superseded in England by orders under the Debtors Act, 1869, section 6.

Order 38, rule 1

38.5. Under Order 38, rule 1, clause (a), sub-clause (i), if a person has, with intent to delay the plaintiff or to avoid service of process etc. left the local limits of the court's jurisdiction, he can be arrested before judgment, if the other conditions mentioned in the rule are satisfied.

38.6. Similarly, under Order 38, rule 1, clause (a), sub-clause (ii), if a person is, with the above intent, likely to leave the local limits of the court's jurisdiction, he can be arrested before judgment, if the other conditions are satisfied.

38.7. We have a small suggestion to make regarding this clause. The liability to arrest should not arise for "leaving" the Court's jurisdiction on lawful business. In fact, the requirement of a particular intent, and the juxtaposition of these words with the world "abscond", shows that only mala fide acts are covered. However, it is desirable to make the position clear.

Recommendation

38.8. We, therefore, recommend that

(i) in Order 38, rule 1, clause (a), sub-clause (i), before the words "left the local limits", the words "without lawful excuse", should be inserted.

(ii) in Order 38, rule 1, clause (a), sub-clause (10, before the words "leave the local limits", the words "without lawful excuse", should be inserted.

Order 39, rule 5

38.9. Order 38, rule 5(1) is as follows:-

"5. (1) Where, at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him-

(a) is about to dispose of the whole or any part of his property, or

(b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court, the Court may direct the defendant, within a time to be fixed by it, either 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, or to appear and show cause why he should not furnish security."

38.10. The rule, it may be noted, requires that the defendant be given an opportunity to show cause. The question whether non-compliance with this requirement has the effect of making the order ultra vires and void, and the consequent attachment a nullity, and whether, if the Court passes such an order, there is total lack of jurisdiction, is one on which there has been some controversy.

38.11. In a Kerala case,1 it was held that the question really was not so much whether, (as some decisions had put it), the provisions of Order 38, rule 5(1) are mandatory or merely directory. Even the breach of a mandatory provision does not necessarily make it illegal. The High Court referred to a decision of the Supreme Court,2 where it was pointed out that the question to be considered was whether compliance with a particular provision is a condition precedent for the assumption of jurisdiction or whether on the other hand, the provisions merely lay down the manner in which the jurisdiction is to be exercised. If it is the former, non-compliance would make the order void; but, if the latter, non¬compliance would only make the order voidable. The order would be liable to be set aside, but, until that is done, it would be operative and cannot be ignored or collaterally attacked.

Therefore, in the light of the above decision of the Supreme Court, in this case, even though the attachment is erroneous and liable to be set aside in appropriate proceedings, the order of attachment is one made with jurisdiction and is not a nullity. Hence, it cannot be ignored or subjected to attack in collateral proceedings.3 It was held that Order 38, rule 5 is intended for the protection of the person whose property is sought to be attached before judgment. If he did not receive the notice required by law, and was consequently denied the privilege of staying off the attachment by the offer of security, an injury would, no doubt, accrue to him: but the law gives him a remedy by way of appeal under Order 43, rule 1, from such an irregular order to get it set aside.

1. Madhauan v. State, AIR 1966 Ker 212 (FB)

2. Ittyavira Mathai v. Varkey, AIR 1964 SC 907.

3. Dhian Singh v. Secretary of State, AIR 1945 Nag 97.

38.12. Contrary views had been taken in some of the earlier High Court decisions1-2 but these were not accepted as correct in this case. Hence, it was observed, that the order of attachment in this case, though erroneous and liable to be set aside in appropriate proceedings, was an order made with jurisdiction, and was not a nullity.

1. Ahdtti Karim v. Nur Mohamad, AIR 1920 Cal 526 (527) (Newbould and Panton J.).

2. Dular Singh v. Ram Chander, AIR 1934 All 165 (167) (Rachhpal Singh J.).

38.13. The question arose in a recent Allahabad case1, where it was held that if the procedure provided by law is not followed, the attachment is a nullity.

1. Sri Krishan Gupta v. Ram Babu, AIR 1967 All 136 (B. Dayal and D.D. Seth JJ.) [reviews case-law).

Recommendation

38.14. A clarification of the law is badly needed in view of the recent cases summarised above. On principle, such attachment should be void, and we recommend the insertion of a sub-rule in Order 38, rule 5, to that effect.1

1. Amendment not drafted.



The Code of Civil Procedure, 1908 Back




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