Order XXXVIII Rule 3 CPC - Procedure on Application by Surety to Be Discharged
Order XXXVIII Rule 3 of the Code of Civil Procedure, 1908 (CPC) provides a procedure through which a person who has stood surety for a defendant's appearance may seek release from that obligation. It also specifies how the court secures the defendant's presence and requires replacement security.
Text of Order XXXVIII Rule 3 CPC
(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.
Meaning and scope of Rule 3
A surety is a person who undertakes responsibility for the defendant's appearance under the security arrangement ordered by the court. Discharge means release of that surety from the obligation. Fresh security means replacement security required from the defendant after the existing surety is discharged.
The rule deals with security for appearance under Order XXXVIII Rules 1 and 2. It is distinct from the provisions governing attachment before judgment in Rules 5 onwards.
Procedure for discharge of a surety
- Application: The surety may apply at any time to the same court in which the undertaking was given.
- Defendant's attendance: The court shall summon the defendant or may issue a warrant of arrest at the outset if it considers that appropriate.
- Discharge and replacement: Once the defendant appears pursuant to the summons or warrant, or voluntarily surrenders, the court shall discharge the surety and require the defendant to furnish fresh security.
Filing an application alone does not complete the discharge: Rule 3(3) connects the court's direction discharging the surety with the defendant's appearance or surrender.
Related provisions of Order XXXVIII CPC
Rule 1 addresses circumstances in which the court may require a defendant to show cause regarding security for appearance. Rule 2 addresses the order for security when sufficient cause is not shown and the obligation of a surety. Rule 4 addresses consequences where the defendant fails to furnish the security or fresh security ordered by the court.
Illustration
Suppose a person guarantees the appearance of a defendant in a pending civil suit but later wishes to withdraw from that undertaking. The person may apply under Rule 3 to the court that accepted the surety. The court can summon the defendant or issue a warrant as permitted by the rule. Once the defendant appears or surrenders, the court must discharge the surety and call upon the defendant to provide fresh security.
Official legal source
For the central legislation and its schedules, consult the Code of Civil Procedure, 1908 on India Code. Check any applicable state amendments and current judicial decisions when applying the provision to a particular proceeding.
Frequently asked questions
Can a surety apply for discharge at any time?
Yes. Rule 3(1) permits the surety to apply at any time to the court in which the person became surety.
Can the court issue a warrant when the surety seeks discharge?
Yes. Under Rule 3(2), the court may issue a warrant in the first instance instead of first summoning the defendant.
What happens after the defendant appears?
Under Rule 3(3), the court shall discharge the surety and call upon the defendant to find fresh security.