Order XXXVIII Rule 6 CPC - Attachment Where Cause Is Not Shown or Security Is Not Furnished

Order XXXVIII Rule 6 of the Code of Civil Procedure, 1908 governs attachment before judgment where a defendant does not show sufficient cause or provide security required under Rule 5. It also provides for withdrawal of attachment when the defendant shows cause or furnishes the required security.

Order XXXVIII Rule 6 - Statutory text

Meaning and scope of Rule 6 CPC

Attachment before judgment is a protective measure intended to preserve property potentially available to satisfy a future decree. It is not an advance determination that the plaintiff will succeed, and it should not be used simply to pressure the defendant to settle a disputed claim.

Showing cause means giving the Court reasons, supported where appropriate by evidence, why the defendant should not be directed to provide security. Furnishing security means providing the security ordered by the Court to protect the potential enforceability of a decree. Attachment is a judicial restraint imposed on specified property according to the applicable procedural rules; it does not itself transfer ownership to the plaintiff.

When can the Court order attachment?

1. Prior proceedings under Rule 5: The Court considers the grounds for requiring security or a show-cause response under Order XXXVIII Rule 5.
2. Failure within the time fixed: The defendant fails to show cause or to furnish the security required within the period directed by the Court.
3. Judicial discretion: Rule 6(1) says the Court may order attachment; the order is not automatic.
4. Proportionate property: The Court may attach the specified property or only the portion that appears sufficient to satisfy a possible decree.

Withdrawal of attachment under Rule 6(2)

If the defendant shows sufficient cause or furnishes the required security after the property has been attached, Rule 6(2) directs the Court to withdraw the attachment or make another order it considers fit. The Court must address the changed circumstances rather than treat the earlier attachment as irreversible.

Relationship with other provisions

• Order XXXVIII Rule 5: Provides the procedure for calling upon a defendant to furnish security for production of property and the conditions for conditional attachment. Under Rule 5(4), an attachment made without complying with Rule 5(1) is void.
• Order XXXVIII Rule 7: Governs the mode of making an attachment before judgment.
• Order XXXVIII Rule 8: Addresses claims to property attached before judgment.
• Order XXXVIII Rule 9: Provides for removal of attachment when security is furnished or the suit is dismissed.
• Order XXXVIII Rule 10: Protects rights of strangers to the suit and certain decree-holder rights.
• Order XLIII Rule 1(q): Provides for appeals from specified orders under Order XXXVIII, including orders under Rule 6.

Practical example

A plaintiff alleges, with supporting material, that the defendant is disposing of assets to obstruct execution of a possible decree. After proceeding under Rule 5, the Court directs the defendant to show cause or provide security. If the defendant fails to comply within the time fixed, the Court may attach specified assets up to an amount reasonably sufficient for the possible decree. If the defendant later furnishes the required security, the Court must consider withdrawal or another appropriate order under Rule 6(2).

Frequently asked questions

Is attachment mandatory if the defendant fails to provide security?

No. Rule 6(1) uses the word "may", leaving the Court with judicial discretion subject to the statutory requirements.

Can all of the defendant's property be attached?

The rule contemplates the specified property or the portion appearing sufficient to satisfy a possible decree, rather than indiscriminate attachment of all assets.

Can attachment be lifted?

Yes. Rule 6(2) provides for withdrawal or another appropriate order where the defendant shows cause or furnishes the required security. Rule 9 also addresses removal in specified circumstances.

Official legal references

Consult the India Code official legislation portal for the Code of Civil Procedure, 1908 (Act 5 of 1908), including the First Schedule, Order XXXVIII. Check applicable State amendments and current judicial decisions before relying on a provision in a particular proceeding.

Legal note: This article explains the central CPC framework. The facts of the case, local amendments, procedural orders and binding judicial precedents may affect the remedy available.