11.7 Arrest and Attachment Before Judgment, Caveat, Interpleader Suits & Suits by Indigent Persons

11.7 Arrest and Attachment Before Judgment, Caveat, Interpleader Suits & Suits by Indigent Persons

A decree is worthless if the defendant has stripped himself of assets by the time it is passed, or if an ex parte order has been obtained behind a party's back, or if a stakeholder holding money is sued twice over. The CPC answers each of these with a self-contained procedure.

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Arrest and Attachment Before Judgment (Order XXXVIII CPC)

Arrest Before Judgment (Rules 1-4)

Where the court is satisfied by affidavit or otherwise that the defendant, with intent to 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:

• has absconded or left the local limits of the court's jurisdiction, or
• is about to abscond or leave, or
• has disposed of or removed from those limits his property or any part of it,

the court may issue a warrant to bring the defendant before it to show cause why he should not furnish security for his appearance. Rule 2 provides for security and for detention in civil prison in default, but Rule 4 caps detention at six weeks, or earlier if the suit is decided against the plaintiff or the decree is satisfied.

• Rule 1 proviso: the defendant shall not be arrested if he pays into court the amount claimed, or gives security.
• Women are exempt from arrest and detention in a decree for money by virtue of Section 56 CPC, and the same principle protects them from arrest before judgment.

Attachment Before Judgment (Rules 5-13)

Rule 5 is the operative provision and its two limbs must both be present:

1. The defendant is about to dispose of the whole or any part of his property, or about to remove the whole or any part of it from the local limits of the court's jurisdiction; and
2. He is doing so with intent to obstruct or delay the execution of any decree that may be passed against him.

The court directs him to furnish security or to place the property at its disposal, or to show cause why he should not do so, and may conditionally attach the property. Rule 5(3) makes an attachment made without complying with sub-rule (1) void.

• Rule 6: where the defendant fails to show cause or to furnish security, the court may order attachment of the property specified.
• Rule 8: where a claim is preferred to property attached before judgment, it is investigated in the manner provided for claims to property attached in execution.
• Rule 9: attachment is withdrawn where the defendant furnishes the required security together with the security for costs, or where the suit is dismissed.
• Rule 10: attachment before judgment does not affect the rights of persons not parties to the suit, and does not bar any person holding a decree against the defendant from applying for sale of the property.
• Rule 11: where property is attached before judgment and a decree is subsequently passed, it is not necessary to apply for a fresh attachment in execution. Rule 11A applies the Order XXI provisions on attachment in execution to attachment before judgment.

[!IMPORTANT] The distinction most often tested: attachment before judgment is a drastic and extraordinary remedy. It is not enough to show that the defendant is selling property; the plaintiff must place material showing the intent to defeat the decree. Mere apprehension, or the fact that the defendant is in financial difficulty, will not do.

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Caveat (Section 148A CPC)

Inserted by the Amendment Act of 1976 to prevent ex parte orders being obtained behind a party's back.

• Who may lodge: a person claiming a right to appear before the court on the hearing of an application which has been made, or is expected to be made, in a suit or proceeding instituted or about to be instituted.
• Duty of the caveator (sub-section 2): to serve notice of the caveat by registered post, acknowledgement due, on the person by whom the application has been or is expected to be made.
• Duty of the court (sub-section 3): where a caveat has been lodged, the court shall serve notice of the application on the caveator.
• Duty of the applicant (sub-section 4): to furnish the caveator, at his expense, with a copy of the application and of any paper or document filed with it.
• Life of the caveat (sub-section 5): ninety days from the date on which it was lodged, unless the application is made before the expiry of that period.

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Interpleader Suits (Section 88 & Order XXXV CPC)

An interpleader suit is one in which the real dispute is between the defendants, and the plaintiff is a mere stakeholder who wants to be told to whom he should pay or deliver.

• Section 88 conditions: two or more persons claim adversely to one another the same debt, sum of money or other property, movable or immovable, from another person who claims no interest in it other than for charges or costs, and who is ready to pay or deliver it to the rightful claimant.
• Order XXXV Rule 1 requires the plaint, in addition to the ordinary particulars, to state that the plaintiff claims no interest in the subject-matter other than for charges or costs, that the claims made are adverse to one another, and that there is no collusion between the plaintiff and any of the defendants.
• Rule 2: the court may order the plaintiff to place the thing in custody of the court or to pay the money into court.
• Rule 4: at the first hearing the court may declare that the plaintiff is discharged from all liability, award him his costs, and dismiss him from the suit; the suit then continues between the rival claimants alone.
• Rule 5 — who cannot file: an agent cannot sue his principal, and a tenant cannot sue his landlord, for the purpose of compelling them to interplead with persons other than persons claiming through such principal or landlord.
• The proviso to Section 88: where a suit is pending in which the rights of all parties can properly be decided, no interpleader suit shall be instituted.

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Suits by Indigent Persons (Order XXXIII CPC)

• Explanation I to Rule 1 — who is indigent: a person is an indigent person if he is not possessed of sufficient means (other than property exempt from attachment in execution of a decree and the subject-matter of the suit) to enable him to pay the fee prescribed by law for the plaint; or, where no such fee is prescribed, if he is not entitled to property worth one thousand rupees.
• Explanation II excludes property acquired after the presentation of the application and before its decision from the calculation; Explanation III provides that where the plaintiff sues in a representative capacity, the means of the person so represented are looked at.
• Rule 2 prescribes the contents of the application, which must contain the particulars of a plaint and a schedule of movable and immovable property with estimated value.
• Rule 5 lists the grounds on which the application shall be rejected, including where the applicant is not an indigent person, where he has within two months before presentation disposed of property fraudulently to enable him to apply, where the allegations do not show a cause of action, and where the suit appears to be barred by any law.
• Rule 9: the court may, on the application of the defendant or the Government Pleader, dispense with the indigent status where the plaintiff's means change, where he behaves vexatiously, or where his means are such that he ought not to continue to sue as an indigent person.
• Rule 10: where the indigent plaintiff succeeds, the court fee is recoverable by the State Government from the party ordered to pay costs, and forms a first charge on the subject-matter of the suit.
• Order XLIV extends the same machinery to appeals by indigent persons.