Rule 1.
Where defendant may be called upon to furnish security for appearance
Where at any stage of a suit, other than a suit of the nature referred to in section 16, clauses (a) to (d), the Court is satisfied, by affidavit or otherwise,—
(a)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,—
(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, or
(iii)has disposed of or removed from the local limits of the jurisdiction of the Court his property or any part thereof, or
(b)that the defendant is about to leave India under 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 by the Court by way of deposit, or shall be paid to the plaintiff if the Court so directs, until the suit is disposed of or until the further order of the Court.
Rule 5.
Where defendant may be called upon to furnish security for production of property (Attachment Before Judgment)
(1)Where, at any stage of a suit, the Court is satisfied, 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
(b)is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court, the Court may direct the defendant, within a time to be fixed by it, 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.
(2)The plaintiff shall, unless the Court otherwise directs, specify the property required to be attached and the estimated value thereof.
(3)The Court may also in the order direct the conditional attachment of the whole or any portion of the property so specified.
(4)If an order of attachment is made without complying with the provisions of sub-rule (1), such attachment shall be void.
Rule 9.
Removal of attachment when security furnished or suit dismissed
Where an order is made for attachment before judgment, the Court shall order the attachment to be removed when the defendant furnishes the security required, together with security for the costs of the attachment, or when the suit is dismissed.
Legal Commentary & Landmark Judgments: Order XXXVIII
Order XXXVIII of the Code of Civil Procedure, 1908 governs arrest and attachment before judgment, providing extraordinary interlocutory security to prevent the defendant from obstructing execution.
Rule 5(4) enacts a severe statutory consequence: 'If an order of attachment is made without complying with the provisions of sub-section (1), such attachment shall be void.' The power is drastic and cannot be exercised mechanically merely because the plaintiff has an arguable money claim.
Under *Raman Tech*, a plaintiff applying for attachment before judgment cannot rely on generalized assertions that the defendant is selling property. The plaintiff must file a specific affidavit detailing positive acts—such as advertisement of sale, removal of plant and machinery, or clandestine bank transfers—demonstrating a fraudulent intention to obstruct the anticipated decree.