📘 CIVIL PROCEDURE CODE (CPC) – ORDER XXXVIII & XXXIX

Preparation for RJS, DJS, PCS (J) and other Judicial Service Exams

📖 CIVIL PROCEDURE CODE EXPLAINED

The Civil Procedure Code forms the bedrock of any and every Judicial Service exam in the country.
Its thorough knowledge is a must for all aspirants of RJS, DJS, PCS (J) and every other Judicial Service exam.

To help such aspirants DELHI LAW ACADEMY JAIPUR has launched a series of study material modules
on all important aspects of this vital part of their syllabus:

⚖️ ORDER XXXVIII – ARREST BEFORE JUDGMENT

Defendant to furnish security for appearance – Rule 1

• Where Court is satisfied by affidavit or otherwise
• that the defendant
• has absconded or left jurisdiction of Court or
• is about to abscond or leave jurisdiction of Court or
• has disposed of or removed from jurisdiction of Court his property
• with intent
• to delay the plaintiff or
• to avoid any process of Court or
• to obstruct or delay execution of any decree that may be passed against him

• Court may issue a warrant
• to arrest the defendant and bring him before the Court and
• to show cause why he should not furnish security for his appearance

• Where Court is satisfied by affidavit or otherwise
• that the defendant is about to leave India
• so that the plaintiff may be obstructed or delayed in execution of any decree that may be passed against him

• Court may issue a warrant
• to arrest the defendant and bring him before the Court
• to show cause why he should not furnish security for his appearance

Proviso

• The defendant shall not be arrested
• if he pays to the officer executing the warrant
• any sum specified in the warrant as sufficient to satisfy the plaintiff’s claim

• Such sum shall be held in deposit by the Court
• until the suit is disposed of or until further order of Court

Security – Rule 2

• Where defendant fails to show such cause:
• 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 when called upon

• Every surety for 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

Where defendant fails to furnish security – Rule 4

• Where defendant fails to comply with any order u/r 2 or 3:
• Court may commit him to civil prison
• until decision of the suit or
• until the decree has been satisfied: where a decree is passed against the defendant

Proviso

• Detention in prison under this rule shall not be
• longer than six weeks, when subject-matter of the suit is only upto 50 rupees
• longer than six months, in any case

⚖️ ORDER XXXIX – TEMPORARY INJUNCTIONS AND INTERLOCUTORY ORDERS

Where temporary injunction may be granted – Rule 1

• Where in any suit it is proved by affidavit or otherwise:

(a)

• that any property in dispute in a suit
• is in danger of being wasted, damaged or alienated by any party to the suit

(b)

• that the defendant
• threatens or intends to remove or dispose of his property
• with a view to defrauding his creditors

(c)

• that the defendant
• threatens to dispossess the plaintiff or
• otherwise cause injury to the plaintiff in relation to any property in dispute in the suit

• The Court may by order
• grant a temporary injunction to restrain such act or
• make other order for
• staying and preventing the damaging or disposition of property or
• dispossession of the plaintiff or
• otherwise causing injury to plaintiff in relation to any property in dispute in the suit

• until
• disposal of the suit or further orders

Disobedience or breach of injunction – Rule 2A

• In case of disobedience of any injunction or other order or
• breach of any term of the injunction or order
• Court may order
• property of the person guilty of such disobedience or breach to be attached
• Court may also order
• such person to be detained in civil prison
• for a term not exceeding three months

• No such attachment
• shall remain in force for more than one year
• at the end of which time
• if the disobedience or breach continues, property attached may be sold

• Out of the proceeds of sale: Court
• may award such compensation as it thinks fit to the injured party and
• shall pay the balance to the party entitled thereto

Court to direct notice to opposite party – Rule 3

• The Court shall, before granting an injunction
• direct notice of the application to be given to the opposite party
• except where it appears
• that the object of granting the injunction would be defeated by the delay

Proviso

• Where it is proposed to grant an injunction
• without giving notice of the application to the opposite party:
• Court shall record reasons for its opinion
• that the object of granting the injunction would be defeated by delay and
• shall require the applicant
• to deliver to the opposite party or to send to him by registered post
• immediately after the order granting the injunction has been made
• a copy of the application for injunction together with
• a copy of affidavit filed in support of application

Prepared by the academic team at Delhi Law Academy, Jaipur
For Judicial Services Examination Preparation

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❓ Frequently Asked Questions (Order XXXVIII & XXXIX CPC)