PART IV.

PROVISIONAL REMEDIES.

CHAPTER XXXIV.

OF ARREST AND ATTACHMENT BEFORE JUDGMENT.
A.-Arrest before Judgment.

477. If at any stage of any suit, other than a suit for the possession of immoveable property, the apply that security be plaintiff satisfies the Court by affidavit or

When plantiff may

taken.

otherwise,

that the defendant, with intent to avoid or delay the plaintiff, or to avoid any process of the Court, or to obstruct or delay the execution of any decree that may be passed against him,—

(a) has absconded or left the jurisdiction of the Court, or (b) is about to abscond or to leave the jurisdiction of the Court, or

(c) has disposed of or removed from the jurisdiction of the Court his property or any part thereof, or

that the defendant is about to leave British India under circumstances affording reasonable probability that the plaintiff will or may thereby be obstructed or delayed in the execution any decree that may be passed against the defendant in the suit,

of

the plaintiff may apply to the Court that security be taken for the appearance of the defendant to answer any decree that may be passed against him in the suit.

Act VIII of 1859, section 74. This section applies to H. C. and P. S. C. C.

A creditor is not entitled merely because he has a great demand against his debtor to arrest him before judgment. This procedure is intended only to secure to the creditor his rights when there is reason to believe that the debtor is about to depart from the jurisdiction of the Court as to make away with his property, and if the creditor procures the arrest of the debtor without reasonable or probable cause, he is liable to a regular suit for compensation, or to the summary process set out in section 491, post-Goutiere vs. Charriol, 1 Alla., 91.

This section does not enable a creditor to sue out arrest before judgment, to secure easy execution of decrees-Kelaram Majee vs. Narain, 13 W. R., 278.

An order should not issue under (a), (b), or (c), unless it should appear that the defendant is about to leave jurisdiction, &c., with one or other of the intentions described in the text--Teenaram vs. Ram Rutton, 2 Hyde, 181; but where a defendant is about to leave British India, it is sufficient if there is a reasonable probability that his going away may have the effect of obstructing or delaying execution of any decree that may be passed against him-Agra and Masterman's Bank vs. Minto, 1 Ind. Jur., N. S., 265; Goutiere vs. Roberts, 2 Alla., 358; though there seems to be a distinction between a person domiciled in India leaving it and a person having a domicile out of India, a mere bird of passage in India, withdrawing from jurisdiction-Harrison vs. Dickson, 1 Bouln., 33. Master of a Ship.-See Prosunno Chunder vs. Downy, I. L. R., 14 Cal., 695.

Order to bring up defendant to show cause

why he should not give

security.

478. If the Court, after examining the applicant, and making such further investigation as it thinks fit, is satisfiedthat the defendant, with any such intent as aforesaid,(a) has absconded or left the jurisdiction of the Court, or (b) is about to abscond or to leave the jurisdiction of the Court, or

(c) has disposed of or removed from the jurisdiction of the Court his property or any part thereof, or

that the defendant is about to leave British India under the circumstances last aforesaid,

the Court may issue a warrant to arrest the defendant and bring him before the Court to show cause why he should not give security for his appearance.

Act VIII of 1859, section 75. This section applies to H. C. and P. S. C. C.

No order can issue until the applicant has been examined, and such further investigation (if any) as may be deemed necessary has been made-Kelaram Majee vs. Narain, 13 W. R., 278.

Before the Court.-Kelaram Majee vs. Narain, 13 W. R., 278.

If defendant fail to show cause Court may order him to make deposit or give rity.

secu

479. If the defendant fail 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 give security for his appearance at any time when called upon while the suit is pending, and until execution or satisfaction of any decree that may be passed against him in the suit. The surety 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.

Act VIII of 1859, section 76. This section applies to H. C. and P. S. C. C. Security.-The security required to be given by a defendant who is arrested before judgment, does not include security for costs. "Claim" in this section means the amount of money claimed, and has the same signification as in section 50, ante-Reinhold vs. Holloway, No. 655 of 1877; Nov. 26th.

Cause. If the person has been charged with leaving India, good cause must be, either (1) that he is not going to leave India or not for so long a time as will obstruct, or is likely to obstruct, the plaintiff should he succeed; or that (2) the suit is not a bona fide one; or that (3), even if it is, the institution of it has been vexatiously delayed till the defendant is about to depart from India in order to embarrass or coerce him--Spence's Hotel Company vs. Anderson, 1 Ind. Jur., N. S., 294.

A defendant should not be committed unless he cannot show good cause, or cannot deposit sufficient to meet the demand, or is unable to give security, not for the demand, but for his appearance-Kelaram Majee vs. Narain, 13 W. R., 278.

480. The surety for the appearance of the defendant

Procedure in case of application by surety to be discharged.

may at any time apply to the Court in which he became such surety to be discharged from his obligation.

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.

On the appearance of the defendant pursuant to 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.

Act XXIII of 1861, section 24. This section applies to H. C. and P. S. C. C. The Court can secure the defendant's appearance by a warrant to the jailor-Kelaram Majee vs. Narain, 13 W. R., 278.

481. If the defendant fail to comply with any order under section 479 or section 480, the Court may commit him to jail until the decision of the suit, or, if judgment be given against the defendant, until the exe

Procedure where defendant fails to give security or find fresh security.

cution of the decree:

Provided that no person shall be imprisoned under this section 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 that no person shall be detained in prison under this section after he has complied with such order.

Act VIII of 1859, section 78. This section applies to H. C. and P. S. C. C.

It is only in the event of a defendant neither furnishing security nor offering a sufficient deposit that he can be committed to custody-Kelaram Majee vs. Narain, 13 W. R., 278.

Where a person is arrested and required to give security to answer a claim against him, and he satisfies the claim, he cannot be made to give security for costs-Reinhold vs. Holloway, No. 655 of 1877, November 26th.

Where a person is arrested under this section, and a decree is afterwards obtained against him, the decree-holder, if he wishes to send the defendant to prison, must have him brought before the Court and his subsistence money fixed in the same way as if he had been arrested in execution of the decree; and if he fails to do so, the defendant is entitled to his discharge-In the matter of Kallah Chand Dass, 1 Ind. Jur., N. S., 328; Bourke, 425. And in calculating the six months under section 342, ante, the period of imprisonment suffered after decree must be taken into account-Ghanaohamdass vs. Joharimull, I. L. R., 7 Bom., 431.

482. The provisions of section 339 as to allowances Subsistence of de payable for the subsistence of judgmentdebtor shall apply to all defendants arrest

fendants arrested.

ed under this Chapter.

This section applies to H. C. and P. S. C. C.

See note under section 339, ante.

B.-Attachment before Judgment.

483. If at

Application

before

judgment for security

from defendant

satisfy decree, and in default, for attachment of property.

any stage of any suit the plaintiff satisfies the Court by affidavit or otherwise that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him,

(a) is about to dispose of the whole or any part of his property, or to remove the same from the jurisdiction of the Court in which the suit is pending, or

(b) has quitted the jurisdiction of the Court, leaving therein property belonging to him,

the plaintiff may apply to the Court to call upon the defendant to furnish security to satisfy any decree that may be passed against him in such suit and, on his failing to give such security, to direct that any portion of his property within the jurisdiction of the Court shall be attached until the further order of the Court.

The application shall, unless the Court otherwise directs, Contents of applica- specify the property required to be attached and the estimated value thereof.

tion.

Act VIII of 1859, section 81. This section applies to H. C. and P. S. C. C. A Court of Small Causes could not attach immoveable property under section 81, Act VIII of 1859-Marthamma vs. Kittu, 6 Mad., 91.

Dispose of His Property.-Before issuing process under this section, the Judge, must be satisfied that the removal or disposition of the property is about to be made with a view to evade or delay the execution of a decree which the defendant anticipates the plaintiff may obtain against him in the specific case.-Ram Narain vs. Ezekiel Levy, 2 Hyde, 183.

This section does not apply where the defendant has actually parted with the property-Soorjee Coomar vs. Isser Chunder, 1 Bourke, 243; or the property is beyond the jurisdiction of the Court in which the suit is pending-Nur Muhammad vs. Abubakar, 8 Bom., 29; Balaram Mullick vs. Solano, 8 B. L. R., 335; Krishnasami vs. Engel, I. L. R., 8 Mad., 20; Kedar Nath Dutt vs. Seeva Veyana, 1 C. L. R., 336, dissenting from In re Abraham, 6 Bom., 170; or the property is the property in the suit, which must be followed under section 492, post-Joynarain Geeree vs. Shibpershad, 6 W. R., Mis., 1.

Effect of Attachment.-Although, under the old law, an attachment, previous to the date of the vesting order, in the execution of a decree conferred on the judgmentcreditor a right prior to that of the Official Assignee-Anand Chandra vs. Panchilal, 5 B. L. R., 691; 14 W. R., 33; Aga Mahomed vs. Judah, 7 B. L. R., 50; 17 W. R., 234; the law was otherwise as to attachment before judgment-Petumber Mundle vs. Gocool Dass, 1 Ind. Jur., N. S., 327; Rampersaud vs. Callachand, 1 Ind. Jur., _N._S. 325, 373; Gamble vs. Bholagir, 2 Bom., 149; Bank of Bengal vs. Newton, 12 B. L. R., App., 1; Sarkies vs. Bundho Baee, 1 Alla., 172; and under the present section no priority is given to the person_attaching-Shib Kristo vs. Miller, I. L. R., 10 Cal., 150; Saday Appa vs. Ponnama, I. L. R., 8 Mad., 554; Miller vs. Mon Mohun Roy, 8 C. L. R., 213.

Profits.-Attachment of property covers the profits of the property-Ram Coomar vs. Gobind Nath, 12 W. R., 391.

A plaintiff applied for attachment, but a third party intervened and claimed the property as his own: Held, he should not have been made a party to the suit, but that his claim should have been disposed of under section 186, Act VIII of 1859 (section 487, post)-Ram Ruttun vs. Gobind, 2 Agra, 141.

Wrongful Attachment.-If the goods of a person not a party to the litigation be attached, the damages are measured by the value of the property on the date of attachment-Kissory Mohun vs. Hursook, 17 Ind. App., 17; I. L. R., 17 Cal., 436.

Court may call on defendant to furnish security or show cause.

484. If the Court, after examining the applicant and making any further investigation which it thinks fit, is satisfied that the defendant is about to dispose of or remove his property, with intent to obstruct or delay the execution of any decree that may be passed against him in the suit, or that he has with such intent quitted the jurisdiction of the Court, leaving therein property belonging to him, the Court may require him, within a time to be fixed by the Court, either to furnish security in such sum as may be specified in the order, to produce and place at the disposal of the Court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security. The Court may also in the order direct the conditional attachment of the whole or any portion of the property specified in the application.

Act VIII of 1859, section 83. This section applies to H. C. and P. S. C. C.

The property in dispute (if any) or property beyond jurisdiction cannot be attached under this section. See note on last section.

Cause can be shewn after the security has been furnished-Lollikar vs. Lotlikar, I. L. R., 5 Bom., 643.

There is apparently no appeal from an order under this section-section 588; Ahmed Ali vs. Gladstone, Wyllie & Co., 7 W. R., 508.

Section 253, ante, applies to sureties under this section-Ram Kishen vs. Hurkhoo, 7 W. R., 329.

Attachment if cause

not furnished.

485. If the defendant fail to show cause why he should not furnish security, or fail to furnish the not shown or security security required, within the time fixed by the Court, the Court may order that the property specified in the application, or such portion thereof asappears sufficient to satisfy any decree which may be passed in the suit, shall be attached.

If the defendant show such cause or furnish the required Withdrawal of security, and the property specified in the application or any portion of it has been attached, the Court shall order the attachment to be withdrawn.

attachment.

Act VIII of 1859, section 84. This section applies to H. C. and P. S. C. C. Attachment cannot be ordered unless security has been demanded-Sudder Dewany Sum. Decis., June 12th, 1848, and on one or other of the grounds stated in section 483Bipin Behari Ghose, Petitioner, Sudder Dewany Sum. Decis., September 27th, 1847. An appeal lies from an order under this section--See section 588, post.

486. The attachment shall be made in the manner Mode of making herein provided for the attachment of proattachment. perty in execution of a decree for money.

Act VIII of 1859, section 85. This section applies to H. C. and P. S. C. C.