Order 38, Rules 1-4 lay down provisions for the arrest of defendant before the judgment, under

special circumstances.

Where at any stage of the suit, the court is satisfied, either by affidavit or otherwise, that the
defendant with intent to delay the plaintiff, or to avoid any process of the court, or to
obstruct/delay the execution of any decree that may be passed against him, has absconded or left
(or about to abscond or leave) the local limits of the court's jurisdiction, or has disposed of or
removed from such local limits his property, or, is about to leave India, 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 (Rule 1 ). However, he shall not be arrested if he pays the sum
specified in the warrant as sufficient to satisfy the plaintiff's claim. Further, no arrest can be
effected to ensure execution of decree.

The four types of suits where such an order cannot be passed are: (i) suits for the recovery of
immovable property, (ii) suits for partition of immovable property, (iii) suits for foreclosure, sale
or redemption in case of a mortgage/charge upon immovable property, and (iv) suits for the
determination of any right/interest in immovable property.

The plaintiff may make an application for arrest at any time after the plaint is presented, even
before the service of summons. However, the plaintiff's suit must be bona fide and his cause of
action must be prima facie unimpeachable. Further, the court must have reason to believe that
unless this extraordinary power is exercised there is a real danger of the defendant escaping. The
power to arrest the defendant before a decree in favour of the plaintiff is a drastic action and
must be taken after due care, caution and circumspection [Vareed Jacob v Sosamma
Greevarghese (2004) 6 SCC 378].

When the defendant fails to furnish security, the court may commit him to civil prison until the
decision of the suit/execution of the decree. However, no such person can be detained in prison
for more than six weeks if the amount/value of the subject matter of the suit does not exceed Rs.
50, and for more than 6 months in any other case. When such person complies with the order, he
cannot be detained in prison any longer (Rule 4).

Section 95 lays down that where in any suit in which the plaintiff has obtained an order of
arrest/attachment of property of the defendant on insufficient grounds, the court may order the
plaintiff to pay compensation (up to Rs. 50,000) to the defendant.