*Ss. 190, 194, the Court may issue an order for bringing the defendant before the Court to show (y) cause why he should not give security for his appearance. If defendant fail to show cause, Court may order M. 479. (76,77) 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. M. 480. (24, Act 23 Procedure in case of application by surety to be discharged. of 1861) The surety for the appearance of the defendant 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. Procedure where defend dant fails to give security or find fresh security 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. M. 481. (78) If (2) the defendant fail to comply with any order under section 479 or section 480, the Court (a) may commit him to jail until the decision of the suit, or, if judgment be given against the defendant, until the execution 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. M. 482. The provisions of section 339, as to allowances payable for the subsistence of judg Subsistence of defendant ment-debtors, shall apply to all defendants arrested under this chap arrested. ter. B.-Attachment before Judgment. M. 483. (81, 82) If Application befor judg ment for security from de- at any stage of any suit the plaintiff satisfies the Court by "affidavit that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him, (3) Broughton quotes a case from Mss. (McNicholl v. Wilson, July 7th 1865), wherein an action against the captain of a ship for repairs done to her, (the ship being on the eve of sailing to England, and the captain going in her in the usual course of his duty) the captain was ordered to find bail or be arrested in default. In showing cause against this, he was allowed to go into the facts of the case to show that the debt was not due. (2) Where a Court, during the pending of an enquiry, allows the defendant to be at large upon security for his appearance when called upon, if, when the Court has concluded the enquiry, it is found that the defendant has appeared, the liability of the surety is at an end. Balmer Lawrie and Co., v. Hurree Narain Poddar, S. W. R., XXIV., 292. (a) A Judge of a Small Cause Court in the Mofussil can direct a jailor to bring up before the Court, at the hearing of the suit, a defendant committed to custody under this section, without having recourse to the procedure prescribed by Act XV. of 1869. Kilaram Maji v. Narain Dass, B. L. R., V. 215. But a defendant should never be committed to prison, either in this case or in execu tion of a decree, until he has had an opportunity of obeying, or has contumaciously refused to obey. Umedh Kiku v. Nagin Das Narotam Das. Bom. Rep., VII., 122. Sec, 266, (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 shall be attached until the further order of the Court. (b) The application shall, unless the Court otherwise directs, thereof. Court may call on defendent to furnish security or show cause. M. 484. (83) If the Court, after examining the applicant, and making any further investigation which it thinks fit, is satisfied (c) that the defendant is about to dispose of or remove his property, with intent to obstruct or delay the execution of any (d) decree that may be passed against him in the suit, 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 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. Attachment if cause not shown or security not furnished. M. 485. (84) If the defendant fail to show cause why he should not furnish security or fail to furnish the security required within the time fixed by the Court the Court may order that the property specified in the application, or such portion thereof as appears sufficient to satisfy any decree which may be passed in the suit, shall be attached. (e) Withdrawal of attach If the defendant show such cause or furnish the required security, and the property specified in the application or any proportion ment. of it has been attached, the Court shall order the attachment to be withdrawn. M 486. (85) The attachment shall be made in the manner herein provided for the *attachment of property in execution of a decree for money. (b) This refers only to property within the jurisdiction of the Court where the suit is pending; therefore where an order under sec. 483, by the first Subordinate Judge of the 24 parganas, in respect of property in Calcutta, was sent up to the High Court, in order that it might be endorsed under Act XXIII., 1: 40, sec. 1, the High Court refused to endorse it. Balarain Mulluh v. E. R. Solano, B. L. R., VIII., 335. The Bombay High Court in re Abraham held the reverse. Bom. H. C., VI., 170. It should be remembered that a Court which cannot attach primarily in execution of its decree cannot attach in anticipation of it. Marthamna v. Kittu Sheregara. M. H. C., VI., 91. (c) As in arrest so with attachment before judgment, the discretion given to the Court must be carefully used, and the process not enforced unless Court is satisfied that defendant is about to dispose of his property. Gamble v. Bhola Gir. Bom. H. C., II., 149. (d) In Ramnaràin v. Podder and Levy "Any decree" was held to be a decree in some specific suit, not necessarily one that had actually commenced at time of removal of goods, if it can be shown that defendant acted on supposition it would be commenced against him. Hyde, 11., 183. In attachment before judgment, the Court does not interfere with the legal disposal of the property attached beyond declaring that possession shall not be taken without its previous sanction, undertaking only that, if no subsequent order to the contrary be made, the property shall be forthcoming at the time of pronouncing the decree to abide whatever order it shall make about it. Sava Ramji v. Jadhavji Nathu; ex-parte Gamble, Official Assignee, 2 Bom. Rep., 150. (e) In attaching property the profits thereof are also attached, but if the decree-holder, when attaching, allows the original owner to remain in possession and enjoy the profits, those profits cease, from the moment they find their way to the pockets of the owner, to be specifically liable for any judgment-debt under the attachment. Nam Coomar Ghose, S. W. R,, XII., 391. † Ss. 278. M. 487. (86) If any Investigation of claims to property attached before judgment. claim be preferred to the property attached before judgment, such claims shall be investigated in the manner hereinbefore provided for the investigation of claims to property attached in execution of a decree for money. (f) M. 488. (87) When an order of attachment before judgment is passed, the Court which passed the order shall remove the attachment whenever the defend Removal of attachment when security furnished. ant furnishes the security required, together with security for the costs of the attachment, or when the suit is dismissed. M. 489. (89) Attachment before judgment shall not Attachment not to effect rights of strangers, or bar the decree-holder from applying for sale. affect the rights existing, prior to the attachment of persons not parties to the suit, nor bar any person holding a decree against the defendant from applying for the sale of the property under attachment in execution of such decree. Property attached under this chapter, not to be re M. 490. Where property is under attachment by virtue of the provisions of this chapter, and a decree is given in favour of the plaintiff, it shall not be necessary to re-attach the property attached in execution of decree. in execution of such decree. C.—Compensation for improper Arrests or Attachment. Compensation for obtaining arrest or attachment on insufficient grounds. M. 491. (79, 88) If in any suit in which an arrest or attachment. has been effected, it appear to the Court (g) that such arrest or attachment was applied for on insufficient grounds, or if the suit of the plaintiff fails, and it appears to the Court that there was no probable ground for instituting the suit, the Court may, on the application of the defendant, award against the plaintiff in its decree such amount, not exceeding one thousand rupees, as it deems a reasonable compensation (h) to the defendant for the expense or injury caused to him by the arrest or attachment: Provided that the Court shall not award under this section a larger amount than it might decree in a suit for compen Proviso, sation. An award under this section shall bar any suit for compensation in respect of such arrest or attachment. (i) |