Order XXXVIII Rule 2 CPC - Security for Appearance of Defendant
Order XXXVIII Rule 2 of the Code of Civil Procedure, 1908 (CPC) deals with security for the appearance of a defendant in proceedings for arrest before judgment. It specifies the court's options when a defendant fails to show sufficient cause and explains the obligation of a surety.
Order XXXVIII Rule 2 CPC - Statutory provision
2. 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 to 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 been 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.
Meaning and explanation of Rule 2
When can the court require security?
Rule 2 follows Order XXXVIII Rule 1. If the court has required a defendant to show cause why security for appearance should not be furnished, and the defendant fails to show sufficient cause, Rule 2 requires the court to make an appropriate order concerning deposit or security.
What may the defendant be ordered to provide?
Under sub-rule (1), the court may direct a deposit of money or other property sufficient to answer the claim, or security to ensure the defendant appears when called upon during the suit and until any decree against the defendant is satisfied. The court may also make an appropriate order regarding money deposited under the proviso to Rule 1.
Who is a surety and what is the surety's liability?
A surety is a person who undertakes an obligation to secure the defendant's appearance. Under sub-rule (2), the surety binds himself or herself to pay any sum that the defendant may be ordered to pay in the suit if the defendant defaults in appearance, subject to the applicable terms and law.
Does Rule 2 decide the merits of the plaintiff's claim?
No. Security for appearance is a protective procedural measure before judgment. An order under Rule 2 does not by itself establish the defendant's liability on the underlying claim.
Related provisions under Order XXXVIII
Rule 1 - Security for appearance provides the grounds and procedure for bringing the defendant before the court to show cause. Rule 3 - Discharge of surety permits a surety to apply for discharge, subject to the prescribed process. Rule 4 - Failure to furnish security addresses the consequences of non-compliance, including possible detention within statutory limits.
Security for appearance under Rules 1 to 4 should be distinguished from Rule 5 - Security for production of property, which concerns attachment before judgment.
Official legislation and reference
Read the Code of Civil Procedure, 1908 on India Code and the official CPC text (PDF). The relevant provisions appear in the First Schedule, Order XXXVIII, Rules 1 to 4.
Legal note: The application of these provisions depends on the facts of the case and any applicable state amendments, High Court rules and binding judicial decisions. This article is for general legal information.