ORDER XXXVIII ARREST BEFORE JUDGMENT - RULE 1, 2, 3, 4 OF CODE OF CIVIL PROCEDURE 1908

Where defendant may be called upon to furnish security for appearance? Security, What is Procedure on application by surety to be discharged? Procedure Where defendant fails to furnish security or find fresh security? Rule 1, 2, 3,  and 4 of Order XXXVIII of Code of Civil Procedure 1908

Where defendant may be called upon to furnish security for appearance, Security, Procedure on application by surety to be discharged, Procedure and Where defendant fails to furnish security or find fresh security are defined under Rule 1, 2, 3 and 4 of Order XXXVIII of Code of Civil Procedure 1908. Provisions under these Rules are:


 

Rule 1 Order XXXVIII of Code of Civil Procedure 1908 "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 limit soft 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 plaintiffs claim; and such sum shall be held in deposit by the Court until: the suit is disposed of or until the further order of the Court.

Rule 2 Order XXXVIII of Code of Civil Procedure 1908 "Security"

1) Where the defendant fails to show such cause the Court shall order him either to deposit in Court money or other property sufficient answer the claim against him, or to furnish security for his appearance at any time when called upon while the suit is pending and until satisfaction of any decree that may be passed against him in the suit, or make such order as it thinks fit in regard to the sum which may have paid by the defendant under the proviso to the last preceding rule.

(2) Every surety for the appearance of a defendant 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.

Rule 3 Order XXXVIII of Code of Civil Procedure 1908 "Procedure on application by surety to be discharged"

(1) A surety for the appearance of a defendant may at any time apply to the Court in which he became such surety to be discharged from his obligation.

(2) 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.

(3) On the appearance of the defendant in pursuance of 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.

Rule 4 Order XXXVIII of Code of Civil Procedure 1908 "Procedure Where defendant fails to furnish security or find fresh security"

Where the defendant fails to comply with any order under rule 2 or rule 3, the Court may commit him to the civil prison until the decision of the suit or, where a decree is passed a against the defendant, until the decree has been satisfied :

Provided that no person shall be detained in prison under this rule 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 :

Provided also that no person shall be detained in prison under this rule after he has complied with such order.

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