Affidavit for Arrest of Defendant Before Judgment.

IN THE COURT OF _______________, NEW DELHI

CS OS NO. _________ OF 20_______

IN THE MATTER OF :

MR ______________ 
 

…………………….. PLAINTIFF

VERSUS

MR ______________ 
 

………………….. RESPONDENT

AFFIDAVIT

I, ________________________, son of Shri _________________, aged about _______ years, resident of ______________________, New Delhi, do hereby solemnly affirm and declare as under:-

1. That I am the plaintiff in the above-mentioned suit and am, as such, well acquainted with the facts deposed to below.
2. That the defendant has taken a friendly loan of Rs. _______________ from me on __________, and he executed a promissory note on _______________. I have demanded the money from him on several occasions, but he has not paid any amount in spite of repeated demands. The present suit has been filed for recovery of the said amount and interest thereon.
3. That the defendant was duly served with summons in the present suit on __________________________.
4. That on ____________________, the defendant sent his wife and children along with household items to an unknown place.
5. That I have been informed by Mr. ____________________, the Manager of _________________ Company Ltd., where the defendant is employed, which I believe to be true, that the defendant has also tendered his resignation from service, effective ____________________.
6. That I have reliably learnt and verily believe that the defendant is making secret attempts to dispose of his movable and immovable properties with the intention of defeating and delaying the recovery of the said debt.
7. That if the defendant is permitted to alienate or transfer his properties, the plaintiff will be left without any means of recovering the dues and will suffer irreparable loss and injury.

I, _____________________, the above-named deponent, do hereby verify that the contents of paragraphs 1 to 7 of this affidavit are true to my personal knowledge and nothing has been concealed and no part of it is false. 
Verified at ______________ on this _________ day of __________ 20__.

Deponent

VERIFICATION

Verified at ______________ on this day of _______________ that the contents of my above affidavit are true and correct to the best of my knowledge and belief and nothing material has been concealed therefrom.

Deponent

About this Affidavit

This affidavit is used in applications under Order 38 Rules 1 and 2 of the Code of Civil Procedure, 1908 (CPC) for arrest before judgement.

When is this affidavit used?

• When the plaintiff has filed a money recovery suit.
• When there is a reasonable belief, supported by facts, that the defendant is:
  • About to abscond or leave jurisdiction to defeat recovery.
  • Disposing of property to delay or obstruct execution of a decree.

Why is it used?

• To prevent the defendant from escaping the court's jurisdiction.
• To secure the plaintiff's interest and ensure that if the decree is passed, it can be effectively executed.
• To protect against fraudulent transfers or concealment of assets.

Documents usually filed with this affidavit

• Copy of the plaint in the recovery suit.
• Loan Documents such as promissory notes, agreements, or receipts.
• Evidence of demand (legal notice, correspondence, SMS, email, etc.)
• Proof of conduct (resignation letter, witness statements, property sale attempts, police/govt. records if available).
• Supporting affidavit showing facts of absconding or property disposal.
• Application under Order 38 Rule 1 and 2 CPC seeking arrest before judgement.

FAQs on Affidavit for Arrest of Defendant Before Judgment

Q1. What is 'arrest before judgement'?

It is a preventive measure under Order 38 CPC where the court can order the arrest of a defendant during the pendency of a case if there is a probability that he may abscond to defeat recovery.

Q2. When can a plaintiff seek this remedy?

When the defendant is about to leave the jurisdiction, hide or dispose of property to avoid repayment from the creditor.

Q3. Is the affidavit mandatory?

Yes. The plaintiff must file an affidavit to show genuine reasons and evidence for such conduct of the defendant.

Q4. Other than the affidavit, what documents are needed?

Copy of plaint, loan agreement/promissory note, evidence of demands and proof of intention of defendant to abscond or dispose of property.

Q5. Will the court directly arrest the defendant as per affidavit?

No. Notice will be issued first. Only on being satisfied that the danger is real, the court may order arrest or demand securities from the defendant.

Q6. Can the defendant escape from arrest?

Yes. He can do this by providing security or surety as per the court's order.

Q7. Is this remedy available in all civil suits?

No. It is usually used in money recovery suits or suits dealing with debts.

Q8. What will happen if a plaintiff files a false affidavit?

The court may dismiss the application and may even impose costs for abuse of process.