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Under the provisions of Order 21 of the Civil Procedure Code, 1908 (CPC)a creditor who has a claim against his debtor has to first obtain a decree against him and execute the said decree by having him arrested or his property attached in execution. The creditor, however, can move for the arrest of the debtor or for the attachment of his property even before the judgment under Order 38 of the CPC.
The main object of this provision is to enable the plaintiff to realise the amount of decree, if a decree is eventually passed in his favour. Also to prevent the defendant to defeat the execution of such decree passed against him.
Where at any stage of the suit the court is satisfied, either by affidavit or otherwise
(a) that the defendant with intent to delay the plaintiff, or to avoid any process of the court, or to abstract 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
iii has disposed off or removed from the local limits of the jurisdiction of the court his property
(b) that the defendant is about to leave India under the circumstances affording reasonable probability 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.
The Courts are expected to take due care after considering the circumstances while granting such a relief, being a drastic one. The Courts must have reason to believe on adequate material that unless the power is exercised there is a real danger that the defendant will remove himself or his property from the jurisdiction of the court.
i. The suit filed by the plaintiff should be bonafide and have unimpeachable cause of action subject to proving the allegations in the plaint.
ii. The Court must be convinced that unless this extraordinary power is exercised there is a danger that the defendant will remove himself or his property from the ambit of the powers of the court.
(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 furnish 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 appearance, to pay any sum of money which the defendant may be ordered to pay in the suit.
(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.
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.
An order passed under Rule 2, 3 or 6 of Order 38 is appealable.
An order of arrest made under Rule 1 of Order 38 can be said to be a 'case decided' under section 115 of the Code and is revisable.