The Power of a Drastic Remedy

The Code of Civil Procedure, 1908 (CPC), provides for certain provisional remedies to prevent justice from being defeated. Among the most severe is the court's power to order the arrest of a defendant before a judgment is even delivered. This authority, found in Order XXXVIII, Rules 1 to 4, is a major departure from standard civil procedure.

Because it directly impacts personal liberty—a right fiercely protected by the Constitution—the judiciary considers it an extraordinary power. It is to be used with extreme caution and only when the strict legal conditions are met. This guide explores the legal architecture, procedural roadmap, and strategic considerations of this potent legal tool.

Grounds for Arrest: The Two Core Conditions

Order XXXVIII, Rule 1 allows a court to issue an arrest warrant if it is satisfied by affidavit or otherwise that one of two conditions is met. The defendant's actions must be linked to a malicious intent to obstruct justice.

The Twin Pillars of Justification

A court will only grant this remedy if the plaintiff successfully establishes two core points:

1. A Bona Fide and Unimpeachable Claim: The plaintiff must demonstrate a strong, genuine case that has a reasonable chance of success. A weak or speculative suit will not support such a drastic measure.
2. Proven Malafide Intent: It is not enough that the defendant is leaving. The plaintiff must provide specific evidence showing the defendant's actions are motivated by an "intent to delay, avoid, or obstruct" the execution of a potential decree.

Exception: Suits for Immovable Property

Rule 1 explicitly states that this provision does not apply to suits of the nature referred to in Section 16, clauses (a) to (d) of the CPC. This is a critical exception.

The power of civil arrest invariably raises questions about its compatibility with Article 21 of the Constitution of India, which guarantees the right to life and personal liberty. Courts have consistently held that any procedure depriving a person of liberty must be "just, fair, and reasonable."

The CPC carves out specific exemptions, recognizing that the power of civil arrest should not be absolute. Certain individuals are protected due to their status or the nature of the claim.

The entire application hinges on the quality of the supporting affidavit. It is not a mere formality; it is the primary piece of evidence the court will consider. A vague or poorly drafted affidavit will fail.

Anatomy of an Effective Affidavit

Interactive Guide: Drafting for Different Scenarios

The focus of the affidavit changes based on the defendant's actions. Select a scenario below to see key drafting considerations and template clauses.

The process for obtaining an arrest order is a structured, multi-stage journey with built-in safeguards for the defendant.

Once the defendant is brought before the court, the focus shifts from arrest to ensuring their future appearance. This is governed by Rules 2, 3, and 4 of Order XXXVIII.

Procedure at the "Show Cause" Hearing (Rule 2)

If the defendant fails to show cause, the court will order them to either:

• Deposit in Court: Deposit a sum of money or other property sufficient to answer the claim against them.
• Furnish Security: Provide a surety who guarantees their appearance at any time when called upon while the suit is pending.

If the defendant complies with this order, they are released from custody. Failure to comply results in committal to the civil prison.

Discharge of a Surety (Rule 3)

A person who has provided security for the defendant is not bound indefinitely. A surety can apply to the court to be discharged from their obligation.

The detention of a defendant in a civil prison under Order XXXVIII is not indefinite. The CPC, under Section 58, prescribes clear limits on the duration of such detention.

It is crucial to note that under Rule 4, a person shall not be detained under this order for a longer period than what is prescribed by Section 58 for the execution of a decree.

The law provides checks and balances to prevent misuse. Both parties must understand the rights, remedies, and potential liabilities involved.

Risk vs. Reward Analysis for the Plaintiff

The interpretation of Order XXXVIII has been shaped by landmark judgments that emphasize caution and strict adherence to the law.

Below are sample formats for the application and the supporting affidavit. These should be adapted to the specific facts and circumstances of each case.

IN THE COURT OF ____________, [CITY]
CS OS NO. ____ OF 20__

IN THE MATTER OF:
[PLAINTIFF'S NAME]                                 ...PLAINTIFF
VERSUS
[DEFENDANT'S NAME]                               ...RESPONDENT

APPLICATION UNDER ORDER XXXVIII RULE 1 OF THE CODE OF CIVIL PROCEDURE, 1908 FOR ARREST OF THE DEFENDANT BEFORE JUDGMENT

The Plaintiff most respectfully submits as under:

1. That the Plaintiff has filed the accompanying suit for [briefly describe the nature of the suit]. The contents of the plaint may be read as part and parcel of this application.

2. That the Plaintiff has a strong prima facie case and is likely to succeed in the suit.

3. That the Defendant, after service of summons, with the malafide intent to obstruct and delay the execution of any decree that may be passed, is about to [abscond/leave the jurisdiction of this Court/dispose of his property/leave India].

4. That the Plaintiff has detailed the specific actions of the Defendant in the accompanying affidavit, which clearly shows his intent to defeat the ends of justice.

5. That if the Defendant is not arrested and directed to furnish security for his appearance, the Plaintiff will suffer irreparable loss and injury, and any decree passed in favour of the Plaintiff will be rendered infructuous.

PRAYER:
It is, therefore, most respectfully prayed that this Hon'ble Court may be pleased to:
a) Issue a warrant for the arrest of the Defendant and bring him before this Court to show cause why he should not furnish security for his appearance.
b) Pass such other and further orders as this Hon'ble Court may deem fit and proper.

PLAINTIFF
Through
[ADVOCATE'S NAME]
                        

[COURT AND CASE DETAILS AS ABOVE]

AFFIDAVIT

I, [Plaintiff's Name], son of [Father's Name], aged about __ years, resident of [Address], do hereby solemnly affirm and declare as under:

1. That I am the Plaintiff in the above-mentioned suit and the deponent herein, and as such, I am fully conversant with the facts and circumstances of the case.

2. That the contents of the accompanying application under Order XXXVIII, Rule 1 are true and correct to my knowledge and the same may be read as part of this affidavit to avoid repetition.

3. That the Defendant is liable to pay a sum of [Amount] to me, which is the subject matter of the present suit.

4. That I have received credible information from [Source of Information, e.g., a mutual acquaintance, a travel agent, defendant's employee] on [Date] that the Defendant is making preparations to leave the jurisdiction of this court permanently.

5. That I have personally verified this information and found that the Defendant has [State specific actions, e.g., sold his car, put his house on rent, resigned from his job on (Date)]. Copies of relevant documents, if any, are annexed herewith.

6. That the aforesaid actions of the Defendant are solely with the intent to delay the proceedings and obstruct the execution of the decree that may be passed against him.

7. That the Defendant has no other movable or immovable property within the jurisdiction of this court from which the decretal amount could be recovered.

DEPONENT

VERIFICATION:
Verified at [Place] on this __ day of [Month], 20__, that the contents of the above affidavit from paragraphs 1 to __ are true to my personal knowledge, and the information in paragraphs __ to __ is based on information received and believed to be true. No part of it is false and nothing material has been concealed therefrom.

DEPONENT
                        

Before deploying or defending against this powerful remedy, counsel should undertake a rigorous strategic review.