Code of Civil Procedure, 1908 | Order 38

Order XXXVIII Rule 4 CPC - Failure to Furnish Security or Fresh Security

Order XXXVIII Rule 4 of the Code of Civil Procedure, 1908 (CPC) governs the consequence of a defendant failing to comply with a court order to furnish security for appearance, or to provide fresh security. It permits detention in civil prison subject to strict statutory limits and requires release when the order is complied with.

Text of Order XXXVIII Rule 4 CPC

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 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.

Meaning and scope of Rule 4

Rule 4 is part of Order XXXVIII, which deals with arrest and attachment before judgment. It concerns security for the defendant's appearance, rather than attachment of property under Rules 5 and 6. The court has discretion: the expression "may commit" does not make imprisonment automatic merely because security has not been furnished.

Rule 1 - Arrest before judgment

In specified circumstances, where the court is satisfied that a defendant is evading its process or is likely to frustrate execution of a future decree, it may issue a warrant to bring the defendant before it to show cause why security for appearance should not be furnished. The rule contains statutory exceptions and a deposit proviso.

Rule 2 - Security for appearance

Where the defendant fails to show sufficient cause, the court may direct a deposit of money or other property, require security for appearance, or make an appropriate order concerning a deposit under Rule 1. A surety undertakes liability as specified in Rule 2(2).

Rule 3 - Discharge of a surety

A surety may apply to the court to be discharged. The court summons the defendant or may issue a warrant; once the defendant appears or voluntarily surrenders, the court discharges the surety and calls on the defendant to provide fresh security.

Limits on detention under Rule 4

Maximum six months: detention under this rule cannot exceed six months in any case.
Maximum six weeks: if the amount or value of the subject matter of the suit does not exceed Rs. 50, detention cannot exceed six weeks. This is the threshold stated in the central rule; any applicable local amendments should be checked.
Earlier termination: detention cannot continue after compliance with the relevant security order.
Suit or decree: subject to the above ceilings, detention may last until the suit is decided or, if a decree is passed against the defendant, until satisfaction of the decree.

Practical procedure and safeguards

The court should identify the order made under Rule 2 or Rule 3, determine whether it remains uncomplied with, and exercise its discretion judicially before ordering civil imprisonment. The defendant may demonstrate compliance or challenge the legal basis of the proposed detention. Any applicable procedural safeguards and local amendments must also be observed.

Detention under Rule 4 is a pre-judgment procedural measure connected to appearance security; it should not be confused with civil imprisonment in execution of a money decree under Section 51 and Order XXI of the CPC, which have separate requirements.

Frequently asked questions

Is imprisonment automatic when security is not furnished?

No. Rule 4 says the court may commit the defendant to civil prison, subject to the statutory requirements and limits.

What is the maximum period of detention?

Six months generally, or six weeks if the subject matter of the suit does not exceed Rs. 50, subject to any applicable amendments. Detention must end earlier if the security order is complied with.

Can a defendant be released by furnishing security?

Yes. The second proviso expressly prohibits continued detention after compliance with the order.

Statutory reference

Read the Code of Civil Procedure, 1908 on India Code and consult the First Schedule, Order XXXVIII, Rules 1 to 4. Check relevant High Court rules and state amendments for the court concerned.

This article explains the general central provision and is not a substitute for checking the current text, local amendments, and case-specific judicial orders.