Order XXXVIII CPC: Arrest Before Judgment - Rules 1 to 4
Order XXXVIII of the Code of Civil Procedure, 1908 contains safeguards intended to prevent a defendant from defeating or delaying execution of a possible decree. Rules 1 to 4 deal with arrest before judgment, security for appearance, discharge of surety and consequences of failure to furnish security.
Rule 1 - Where defendant may be called upon to furnish security for appearance
At any stage of a suit, other than a suit of the nature referred to in Section 16, clauses (a) to (d), the Court may act where it is satisfied by affidavit or otherwise that the defendant, with intent to delay the plaintiff, avoid process of Court, or obstruct or delay execution of a decree that may be passed against him:
- (a)(i)has absconded or left the local limits of the Court's jurisdiction;
- (a)(ii)is about to abscond or leave those local limits;
- (a)(iii)has disposed of or removed his property, or part of it, from those local limits; or
- (b)is about to leave India in circumstances creating a reasonable probability that execution of a decree may thereby be obstructed or delayed.
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.
Proviso: The defendant shall not be arrested if he pays to the officer executing the warrant the sum specified in it as sufficient to satisfy the plaintiff's claim. That sum is held in deposit by the Court until disposal of the suit or further order.
Rule 2 - Security
(1) If the defendant fails to show sufficient cause, the Court shall order him either to deposit money or other property sufficient to answer the claim, or to furnish security for his appearance whenever called upon while the suit is pending and until satisfaction of any decree that may be passed against him. The Court may also make an appropriate order concerning any sum paid under the proviso to Rule 1.
(2) Every surety for the defendant's appearance binds himself, in default of that appearance, to pay any sum of money which the defendant may be ordered to pay in the suit.
Rule 3 - 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 surety to be discharged from his obligation.
(2) On such application, 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 defendant's appearance under the summons or warrant, or on his voluntary surrender, the Court shall discharge the surety and call upon the defendant to furnish fresh security.
Rule 4 - Procedure where defendant fails to furnish security or find fresh security
Where the defendant fails to comply with an order under Rule 2 or Rule 3, the Court may commit him to civil prison until the decision of the suit or, where a decree is passed against him, until the decree has been satisfied.
First proviso: No person shall be detained under this rule for more than six months, or for more than six weeks where the amount or value of the subject-matter of the suit does not exceed Rs. 50.
Second proviso: No person shall be detained after complying with the order requiring security.
Official text
For the authoritative central text, amendment notes and the complete Order XXXVIII, refer to the official India Code publication of the Code of Civil Procedure, 1908.