Arrest before judgment is an interim order that may be passed by the court during the pendency of the suit. The provision related to it are given under Order 38 Rule 1-4 of the Code of civil Procedure. a person who has filed a suit for recovery of money, in usual circumstances must obtain a decree against that person and then can execute that against that person either by having him/her arrested or by getting his/her property attached in execution. But under special circumstances he can move for arrest of that person or for attachment of his/her property even before any decree or judgment is passed.

Rule 1 of Order 38 specifies the grounds on which this can be done that are:

• At any stage in a suit or a proceeding if the court is satisfied that the defendant is trying to avoid the execution of decree or is trying to delay the process or is trying to avoid any process of court, then the court has the right to arrest the defendant before judgment.
• That the defendant is trying to leave India, so that the plaintiff will be delayed in execution of the decree or obstructed in execution of the decree, the court can order for issue of warrant against the plaintiff.

It is the discretion of the court to decide whether to arrest the defendant or not. This power granted to the court must be used with great caution. It should be used when the court is satisfied that if the arrest is not made the defendant will flee from the country or will remove him and the property from the jurisdiction of the court.

It should be clear after considering the facts and circumstances of the case that the case is prima facie in favour of the defendant and the court thinks that if the issue of arrest is not made the defendant or that person will remove himself and the property from the jurisdiction of the court to Issue arrest of that person before judgment. This right can be claimed even before any summon is issued in a suit, but the court must consider the above-mentioned conditions before taking such action.

An order for arrest before judgment cannot be made for easy execution of decree or for converting an unsecured debt into a secured debt. Also, it cannot be issued in cases of land or immovable property mentioned in clauses (a) to (d) of section 16 of the CPC.

Section 95 of the CPC states that in a suit where the arrest of defendant is made before passing of judgment and it is found that the arrest was made on insufficient grounds or in case when the suit of the plaintiff fails and it is found that there was no reasonable ground for filing it, then on the application of the defendant the plaintiff can be asked to compensate him/her for the harm done to his reputation or for any injury or harm done to him. The compensation under this section cannot exceed fifty thousand rupees.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

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