Order XXXVIII Rule 9 CPC: Removal of Attachment When Security Is Furnished or Suit Dismissed
Order XXXVIII Rule 9 of the Code of Civil Procedure, 1908 requires the court to withdraw an attachment before judgment when the defendant furnishes the prescribed security together with security for the costs of attachment, or when the suit is dismissed.
Order XXXVIII Rule 9 - Statutory text
Where an order is made for attachment before judgment, the Court shall order the attachment to be withdrawn when the defendant furnishes the security required, together with security for the costs of the attachment, or when the suit is dismissed.
Meaning and purpose of Rule 9
Attachment before judgment is a provisional protective measure intended to prevent the frustration of a possible decree. It is not an adjudication of ownership or a substitute for executing a decree after judgment. Rule 9 identifies circumstances in which that interim restraint must be lifted.
The word "shall" makes withdrawal obligatory once the statutory condition is satisfied. The court should pass an order withdrawing the attachment; the defendant should not assume that the property records or prohibitory directions will be updated automatically without appropriate implementation of the court's order.
When must an attachment be withdrawn?
1. Security and costs of attachment are furnished
If the defendant provides the security required by the court and security for the costs of the attachment, Rule 9 requires withdrawal. These are distinct requirements: security for the underlying claim alone may not satisfy the wording of the rule unless the costs requirement is also met or appropriately addressed by the court.
2. The suit is dismissed
If the underlying suit is dismissed, the court must order withdrawal of the attachment before judgment. A party may apply for a formal withdrawal order and for communication of that order to any authority holding an attachment entry. If the dismissal is challenged or stayed, the effect of subsequent orders must also be considered.
Practical procedure for seeking withdrawal
- Identify the attachment order, affected property and the pending civil suit.
- Where relying on security, furnish proof of compliance with the security order and address security for attachment costs.
- Where relying on dismissal, place the dismissal order before the court.
- Request an express order under Order XXXVIII Rule 9 withdrawing the attachment and, where necessary, directions for communicating it to the relevant registering or revenue authority.
- Obtain a certified copy of the withdrawal order where required for implementation.
The appropriate application and supporting documents depend on the facts, court directions and applicable local practice.
Related CPC provisions
- Order XXXVIII Rule 5: Sets out the circumstances in which a defendant may be required to furnish security for production of property, including the requirements governing conditional attachment.
- Order XXXVIII Rule 6: Addresses attachment where sufficient cause is not shown or security is not furnished; it also deals with withdrawal when cause is shown or security furnished.
- Order XXXVIII Rule 7: Provides that attachment before judgment is ordinarily made in the manner used for attachment in execution of a decree.
- Order XXXVIII Rule 8: Deals with adjudication of claims to property attached before judgment.
- Order XXXVIII Rules 10 and 11: Address third-party rights and the relationship between attachment before judgment and execution proceedings.
- Order XXI: Contains rules governing attachment and execution of decrees, where applicable.
Frequently asked questions
Is furnishing security enough to remove an attachment before judgment?
Rule 9 requires the defendant to furnish the security required together with security for the costs of the attachment. The court must assess whether its requirements have been satisfied.
What happens to attachment before judgment if the suit is dismissed?
The court must order withdrawal under Rule 9. Any appeal, stay or subsequent judicial direction should be checked before acting on the order.
Does Rule 9 decide who owns the attached property?
No. It concerns withdrawal of a provisional attachment, not final determination of ownership or the merits of the suit.
Official legislation and further reading
Refer to the Code of Civil Procedure, 1908 on India Code and the official CPC text (PDF). Consult applicable High Court amendments, procedural rules and binding decisions where relevant.