Order XXXVIII Rule 1 of the Code of Civil Procedure, 1908, empowers Indian courts to arrest a defendant before judgment to prevent obstruction or delay in executing a potential decree. This provision ensures that defendants do not evade legal obligations by absconding or disposing of assets during litigation.

LEGAL PROVISIONS AND PROCEDURE

Under Order XXXVIII Rule 1, at any stage of a suit, the court may issue a warrant to arrest the defendant and bring them before the court to show cause why they should not furnish security for their appearance. This applies if the court is satisfied, by affidavit or otherwise, that the defendant intends to:

• Delay the plaintiff.
• Avoid any process of the court.
• Obstruct or delay the execution of any decree that may be passed against them.

The court must have concrete evidence indicating that the defendant has:

• Absconded or left the local limits of the court’s jurisdiction.
• Is about to abscond or leave the local limits of the court’s jurisdiction.
• Disposed of or removed their property or any part thereof from the local limits of the court’s jurisdiction.

Alternatively, if the defendant is about to leave India under circumstances that may obstruct or delay the execution of any decree, the court may also take action.

ESSENTIALS FOR INVOCATION

To invoke Order XXXVIII Rule 1, the following conditions must be met:

1. Intent to Obstruct or Delay: The defendant must have a clear intention to obstruct or delay the execution of any decree that may be passed against them.

2. Imminent Absconding or Disposal of Property: There must be credible evidence that the defendant is about to abscond or dispose of their property to defeat the execution of the decree.

3. Satisfaction of the Court: The court must be satisfied, based on affidavit or other evidence, about the defendant’s intent and actions.

CASE LAW: RAMAN TECH. & PROCESS ENGG. CO. V. SOLANKI TRADERS

In Raman Tech. & Process Engg. Co. v. Solanki Traders, (2008) 2 SCC 302, the Supreme Court of India clarified that the power under Order XXXVIII Rule 1 is a preventive measure and not a tool for oppression. The court emphasized that such power should be exercised sparingly and strictly when there is sufficient material to show that the defendant is attempting to remove or dispose of their assets to defeat the execution of a decree.

DEFENSES AND SAFEGUARDS

Defendants have certain defenses against an application under Order XXXVIII Rule 1:

• Absence of Intent: Demonstrating that there is no intention to obstruct or delay the execution of any decree.

• No Imminent Threat: Proving that they are neither absconding nor disposing of their property to defeat the plaintiff’s claim.

Additionally, the proviso to Rule 1 states that the defendant shall not be arrested if they pay to the officer entrusted with the execution of the warrant any sum specified in the warrant as sufficient to satisfy the plaintiff’s claim. This sum shall be held in deposit by the court until the suit is disposed of or until the further order of the court.

APPEALS AND REVISIONS

An order passed under Rule 2, 3, or 6 of Order XXXVIII is appealable under Order 43 Rule 1(q) of the CPC. However, an order of arrest made under Rule 1 of Order XXXVIII is not directly appealable but can be challenged through a revision under Section 115 of the CPC, as it is considered a “case decided.”

COMPENSATION FOR ARREST ON INSUFFICIENT GROUNDS

Section 95 of the CPC provides that if a defendant is arrested before judgment on insufficient grounds, or if the plaintiff’s suit fails and it appears to the court that there was no reasonable or probable ground for instituting it, the court may order the plaintiff to pay compensation up to fifty thousand rupees to the defendant for the expense or injury, including injury to reputation, caused to them.

CONCLUSION

Order XXXVIII Rule 1 of the CPC serves as a crucial mechanism to prevent defendants from evading the execution of decrees by absconding or disposing of assets. However, courts must exercise this power judiciously, ensuring that it is not used oppressively and that defendants’ rights are safeguarded. The provision balances the interests of plaintiffs in securing their claims and the rights of defendants against undue hardship.

REFERENCES

• Raman Tech. & Process Engg. Co. v. Solanki Traders, (2008) 2 SCC 302.
• Code of Civil Procedure, 1908.