Affidavit for Arrest Before Judgment under Order XXXVIII Rule 1 CPC
This page provides a sample affidavit to accompany an application under Order XXXVIII Rule 1 of the Code of Civil Procedure, 1908 (CPC), where the plaintiff seeks an order requiring the defendant to furnish security for appearance and, in the circumstances permitted by law, issuance of a warrant for arrest before judgment.
Order XXXVIII Rule 1 CPC: Security for Appearance and Arrest Before Judgment
Order XXXVIII deals with arrest and attachment before judgment. Rule 1 authorizes the Court, at any stage of an eligible suit, to act where it is satisfied that the defendant is acting with the intent to delay the plaintiff, avoid the Court's process, or obstruct or delay execution of a decree that may ultimately be passed.
The Rule applies, among other situations, where the defendant has absconded or left the local limits of the Court's jurisdiction, is about to do so, has disposed of or removed property from those local limits, or is about to leave India in circumstances creating a reasonable probability that execution of a future decree will be obstructed or delayed.
The official text of the Code of Civil Procedure, 1908 may be consulted on India Code.
When an Application under Order XXXVIII Rule 1 May Be Considered
The affidavit should disclose specific facts supporting the statutory grounds. It should not rely only on suspicion or a general statement that the defendant may leave the jurisdiction. Relevant facts may include concrete information showing that the defendant has already absconded, is preparing to abscond, has removed or disposed of property, or is preparing to leave India in circumstances that may frustrate execution of a decree.
The plaintiff should also explain the source of any information not based on personal knowledge. If facts are stated on information received from another person, the source should ordinarily be identified and the deponent should state that the information is believed to be true.
The exact drafting and procedural requirements can vary according to the facts of the suit, applicable High Court rules, local civil rules, filing practice, and orders of the Court.
Sample Affidavit for Application under Order XXXVIII Rule 1 CPC
The following specimen preserves the substance of the existing format while using clearer language and aligning the allegations with the statutory requirements. Adapt every paragraph to the actual facts and do not retain statements that cannot be truthfully verified.
IN THE COURT OF ____________ AT ____________
CS NO. ____ OF 20__
IN THE MATTER OF:
Mr./Ms. ______________________________
PLAINTIFF
VERSUS
Mr./Ms. ______________________________
DEFENDANT
AFFIDAVIT
I, ______________________________, son/daughter of ______________________________, aged about ____ years, resident of ______________________________, do hereby solemnly affirm and state as under:
1. That I am the plaintiff in the above-mentioned suit and am well acquainted with the facts and circumstances of the case and competent to swear this affidavit.
2. That the defendant received a friendly loan of Rs. __________ from me on __________ and executed a promissory note / written acknowledgment dated __________. Despite repeated demands, the defendant has failed to repay the amount. The present suit has therefore been instituted for recovery of the principal sum, together with interest and other reliefs as permissible in law.
3. That summons in the present suit were served upon the defendant on __________.
4. That on __________ I came to know / personally observed that the defendant had sent his/her family members and household articles to ____________________________. The facts and circumstances giving rise to this statement are: ______________________________.
5. That I have been informed by Mr./Ms. ______________________________, ______________________________ of ______________________________, and I believe the information to be true, that the defendant has taken steps to leave / resign from employment / relocate from ______________________________ on or about __________.
6. That the above acts and circumstances, taken together, give rise to a reasonable apprehension that the defendant intends to delay the plaintiff, avoid the process of this Hon'ble Court, or obstruct or delay execution of any decree that may be passed in the present suit.
7. That the specific facts supporting the apprehension that the defendant has absconded, is about to abscond or leave the local limits of this Court, has removed or disposed of property, or is about to leave India, as applicable to the present case, are as follows: ______________________________.
8. That unless appropriate orders are passed under Order XXXVIII Rule 1 CPC, there is a substantial risk that execution of any decree passed in favour of the plaintiff may be obstructed or delayed.
9. That the accompanying application has been filed bona fide and in the interest of justice.
DEPONENT
Verification
Verified at ______________________________ on this ____ day of __________, 20__, that the contents of paragraphs ____ to ____ are true and correct to my personal knowledge, paragraphs ____ to ____ are based on information received and believed to be true, and nothing material has been concealed therefrom.
DEPONENT
What the Court May Do under Rule 1
Where the statutory conditions are established, the Court may issue a warrant to arrest the defendant and bring the defendant before the Court to show cause why security for appearance should not be furnished. The Rule also contains a safeguard permitting the defendant to avoid arrest by paying to the executing officer the sum specified in the warrant as sufficient to satisfy the plaintiff's claim, which is then held in deposit subject to further orders of the Court.
Since the remedy affects personal liberty before adjudication of the suit, the affidavit should contain precise, material facts and should avoid exaggerated or unsupported allegations.