Introduction:
Arresting and detaining the debtor’s judgement in civil prison is one of how enforcement of decree might happen. The owner of the disposition has the right to choose the type of enforcement of the disposition and usually cannot force a court to issue an injunction of a special type of implementation amid exceptional circumstances. The conviction; and imprisonment of the offender are regulated by Articles 55 to 59 and Rules 30 to 41 of the Civil Procedure Code[1]. The court lists various ways of implementing them. Another approach is to arrest a defendant in a federal court. The requirements to protect the privileges and duties of the pronouncer as well as the decision-maker. Laws are mandatory and must be dealt with explicitly. They are not punitive. The purpose of detaining a prisoner in civil prison is twofold: on the one hand, it enables the holder of the decree to recognize the fruits of the decree issued in his favour; on the other hand, it protects the debtor who cannot and is unable to pay the fees for purposes for which he is not responsible. Consequently, the simple refusal to pay the amount does not justify the prosecution and detention of the debtor as it cannot be presumed; that he has not paid the amount to the holder of the order.
When it comes to arrest and attachment of property before a judgement is passed, it is necessary to examine the grounds and conditions that enable a defendant to be arrested or property to be seized in civil proceedings before a judgement is passed. The only legal solution is to allow the complainant to adhere to the sum of the decree if it was issued in his favour and to avoid the accused from evading the enforcement of the decree issued against him. So, when a borrower argues against a debtor, they must seek an injunction against them, which must then be followed; by the seizure or confiscation of the debtor’s property.
Order XXXVIII deals with arrest and attachment before the judgment and the basis of which arrest can be made. There are a total of 13 rules under Order 38 and Rules 1-4 deal with the provisions of “arrest before judgement”. In this article, we are going to look into Rule 2 i.e. Security and its importance in matters of arrest before judgement is passed in the court. It is seen that under special circumstances even before the judgement defendant can be arrested.
The object underlying these provisions is to enable the plaintiff to realise the amount of decree if one was eventually passed in his favour and to prevent any attempt on the part of the defendant to defeat the execution of such decree passed against him.
Arrest before Judgement
Before understanding Rule 2 of Order 38, let us first understand Rule 1 of the said Order briefly.
Rule 1 states the circumstances in which a plaintiff can file for an affidavit for arrest before judgement. This judgement is to be issued only if the plaintiff can make out a prima facie case and that, the court is satisfied with the contents regarding possible absconding or sale of properties to delay or obstruct the execution of the prospective decision.
The court has jurisdiction to issue a court order and call for security against foreigners as well as against dishonest and fraudulent Indian defendants. If the judgment debtor and the person seized are outside the territorial jurisdiction of the executing court and there is no evidence that the debt due falls within the jurisdiction of the executing court, an injunction prohibiting the garnishee from paying the debtor as it is outside the jurisdiction of the court.
A ship temporarily touching an Indian port is in the same position as foreign personnel accused of trying to leave the jurisdiction. Plaintiff, can and should obtain ship security from the court before releasing her arrest.
If the defendant is about to leave India, it is sufficient that the circumstances in which he is going to leave India offer a reasonable likelihood that any injunction made against him will be obstructed or delayed in the execution. In all cases where an application is made under the provision, the court must be satisfied that the suit filed is bona fide.
A decision filed under Order 38, Rule 1 is by its nature not appealable although a decision under rule 2, which must be approved if the defendant is brought to court and does not provide security, is appealable.
As seen above, Security; is mentioned in rule 1, so now we are going to understand what is security and what are its liabilities.
Order 38, Rule 2: Security
If the defendant fails to provide or show the cause of why he was trying the escape,[2] the court will order him to deposit money or other assets sufficient to answer the claim against him or to provide security for his appearance with the court if requested while the lawsuit is pending and until the satisfaction of any decree that may be issued against him at the hearing or make such Order as it deems fit about the amount paid by the defendant under the clause of the last preceding rule.
Every person who acts as a surety for the appearance of the defendant will have to bind himself, in default for such appearance, to pay any sum of money that the defendant could be ordered to pay in the suit.
What are the liabilities under a security bond?
The extent of the surety’s liability to a security bond must depend on the terms and conditions mentioned in the bond, and it is held that it should be narrowly construed. Under this principle, it has been argued that the duty to present the accused at every hearing of the lawsuit does not mean the duty to present him at the stage when the decree is being executed.
The obligation to appear in one court does not extend to the defendant’s presence in any other court to which the matter might be transferred.
If the defendant has undertaken not to dispose of a property that is mortgaged, the mortgagee’s disposal of the property cannot result in a breach of duty on the part of the defendant.
To conclude what is written above, we can say that in rule 1 of order 38, the defendant is given a chance to show such cause as to why he should not pay security for his appearance and when the defendant fails to show such cause the court can order the defendant to either deposit money or other property in the court or furnish some security amount for his appearance to the court or make such order as the court thinks is fit for the particular suit. All these powers are at the discretion of the court. And the responsibility of the surety is to make sure that the defendant should appear before the court whenever called upon. If somehow the defendant manages to escape, the person who is acting as a surety is bound to pay any sum of money which the defendant may be ordered to pay in the suit. The purpose of this provision is to ensure the adjudication of the decree. To realise the amount of the decree-holder i.e. the plaintiff.
Landmark Cases
In the case Amulya Chandra v. Pashupati Nath[3], the court ruled that if the judgement debtor refuses to pay despite having the means to pay the amount, he may be arrested, but it must be verified that he has the means to pay and refuses to pay the amount due to bad faith. These provisions were widely explained in the case Jolly George Verghese v. Bank of Cochin[4], where Justice Krishna Iyer said that simple default in payment is not enough, there must be an element of bad faith that goes beyond mere indifference to payment; any willful refusal or present means to pay any decree or any substantial portion thereof.
In the case of Gamble v. Bholgir[5], which was decided in the year 1866, it has been found that the appointment is exercised with considerable discretion before a judgement and no court can grant that appointment on slight grounds or without credible evidence that the defendant is going to dispose of his property or excludes him from the jurisdiction of the court.
In Govindrao Mahadik v. Devi Sahai[6], “Arrest or attachment is imposed before judgement if it is satisfied that the court is satisfied with the plaintiff’s claim that the defendant, to obstruct or delay the execution of any order that may be made against the plaintiff, has (a) of his entire property or part of it; or (b) he is about to delete all part of it.”
The primary intent behind this preliminary ruling is to merely inform the complainant that if issued, his decision would be respected. Protection is a type of protection from a decision that is useless unless the complainant disagrees with the decision.
Conclusion
The purpose of arrest before judgement is to give relief to a decree-holder and commit the judgement debtor to civil prison if he does not pay the amount that he is ordered to pay by the court. However, it also protects honest debtors, where his inability to appear before the court is supported by a reasonable cause. The provision of security is provided so that the defendant can pay the specific amount to the court as a surety. And if the defendant escapes then such an injunction amount is given to the plaintiff. The court has to hear both sides as these provisions are ruled at the discretion of the court, to ensure that justice prevails.
References:
[1] The Code of Civil Procedure, 1908, Act No.5, Imperial Legislative Council, 1908 (India).
[2] Sagar Gujjar, Arrest Before Judgement, LEGAL SERVICE INDIA (Jan. 30, 2017), https://www.legalserviceindia.com/legal/article-1132-arrest-before-judgment.html
[3] Amulya Chandra v. Pashupati Nath, A.I.R 1951 Cal 48, 55 CWN 385 (India).
[4] Jolly George Verghese v. Bank of Cochin, 1980 A.I.R 470, 1980 S.C.R (2) 913 (India).
[5] Gamble v. Bholgir, 1866, 2 B.H.C.R 146, 161 (India).
[6] Govindrao Mahadik v. Devi Sahai, 1982 A.I.R 989, 1982 S.C.R (2) 186 (India).
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