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Sources emphasize defendant personally ordered to furnish security under O. 38 R. 5 before R. 6 attachment; no explicit provision or case allows PoA holder to substitute. PoA roles limited to representation/ownership claims, not fulfilling security obligation ["Gurpreet Singh v. Abdul Gani Dar - Jammu and Kashmir"] ["Gurpreet Singh v. Abdul Gani Dar - Jammu and Kashmir"] ["P. Syamala, Proprietrix, Prajwal Associate VS R. Gopinathan - Madras"]. PoA holder cannot furnish security on behalf of defendant under O. 38 R. 6 per sources ["JITENDER BHATIA Vs BIMLA AHUJA AND OTHERS - Punjab and Haryana"] ["SREENIVASAN SIVAKUMAR (DIED), SREENIVASAN KRISHNA KUMAR vs BEENA VEERIAH REDDY - Kerala"].
In civil litigation, protecting a plaintiff's potential decree from a defendant's evasive tactics is crucial. Order XXXVIII Rules 5 and 6 of the Code of Civil Procedure, 1908 (CPC) empower courts to order defendants to furnish security for property production, with attachment following non-compliance. But what if the defendant is unavailable? Can a power of attorney (PoA) holder step in to furnish this security? This question often arises in high-stakes suits involving property disputes. Anil Kumar VS Rajendra Prasad Singh - 2021 0 Supreme(Jhk) 211Deepika Constructions, Engineers and Civil Contractors VS Garikipati Radha Krishnaiah - 2006 0 Supreme(AP) 473
This blog delves into the statutory framework, judicial interpretations, and practical implications, drawing from key precedents. While general principles suggest possibilities under agency rules, strict construction and PoA scope are pivotal.
Order XXXVIII Rule 5 allows courts to direct the defendant to furnish security if there's prima facie evidence (via affidavit) of intent to dispose of or remove property to obstruct decree execution. The plaintiff must specify the property and value. Failure leads to attachment under Rule 6. Anil Kumar VS Rajendra Prasad Singh - 2021 0 Supreme(Jhk) 211Deepika Constructions, Engineers and Civil Contractors VS Garikipati Radha Krishnaiah - 2006 0 Supreme(AP) 473
These are drastic powers, exercised sparingly. As noted, The power under Order 38 rule 5 CPC is drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. Premnarayan VS Golden Heritage Developers Indore - 2023 Supreme(MP) 171
Courts require a prima facie case for the plaintiff and cogent evidence of evasive intent—not mere apprehension. Anil Kumar VS Rajendra Prasad Singh - 2021 0 Supreme(Jhk) 211
Security ensures production of specified property (or value), not unrelated deposits. It includes personal surety bonds from third parties, strictly construed to bond terms. Violations, like alienating secured property, render transactions invalid. Adduru Dasaratha Rami Reddy VS Vamireddy Vishnu (Minor) - 1992 0 Supreme(AP) 256C. Sengottaiyan VS K. Saravanan - 2013 0 Supreme(Mad) 2731
The CPC targets the defendant directly, imposing a personal obligation. However, Order III Rules 1 and 2 recognize PoA holders as agents for appearances, applications, or acts, unless expressly barred. According to Order 3 Rule 1 of the CPC, any appearance, application or act in or to any court... is allowed to be done by his recognized agent also. Dinesan K. , S/o. Late Krishnan VS Pushpa K, W/o. Dinesan - 2019 Supreme(Ker) 676
Yet, limitations apply:- PoA must expressly authorize binding actions like security bonds.- Agents can't represent post-revocation without proof. An agent cannot represent a principal after the revocation of the Power of Attorney. Guduru Veera Nishitha vs G.V. Deepak Rao Laxmikantha Rao - 2025 Supreme(Telangana) 508- PoA holders differ from third-party sureties; they bind the principal, not personally liable unless specified. SARDARSINGH VS KISHORILAL - 1959 0 Supreme(MP) 220
In theory, a PoA holder may furnish security as agent if empowered, aligning with agency principles. Unauthorized acts risk invalidity, akin to imprecise bonds. Courts uphold valid security regardless of who furnishes it, restraining alienation. C. Sengottaiyan VS K. Saravanan - 2013 0 Supreme(Mad) 2731
| Aspect | Defendant | PoA Holder (Agent) | Third-Party Surety ||--------|-----------|---------------------|---------------------|| Authority | Direct court order | Express PoA for bonds | Voluntary || Liability | Personal production | Binds principal strictly | Personal, limited terms SARDARSINGH VS KISHORILAL - 1959 0 Supreme(MP) 220 || Restrains Alienation | Yes C. Sengottaiyan VS K. Saravanan - 2013 0 Supreme(Mad) 2731 | Yes, if valid | Yes |
No direct ruling mandates or bars PoA holders, but precedents illuminate:
Additional cases reinforce PoA boundaries:- PoA holders can't adduce evidence on principal's state of mind. Dundawwa W/o Basappa @ Basangouda Halimani @ Agasbal VS Kenchawwa W/o Basappa Halimani @ Agasbal - 2018 Supreme(Kar) 1019- Representation ceases post-revocation; agent must prove authority. Guduru Veera Nishitha vs G.V. Deepak Rao @ Laxmikantha Rao - 2025 Supreme(Online)(Tel) 55850- Courts rejected mechanical security orders without prima facie case. Civil P.C. 1908 -- O. 38 R. 5 -- ... prima facie case necessary. Premnarayan VS Golden Heritage Developers Indore - 2023 Supreme(MP) 171- Undertakings differ from security; non-compliance justifies attachment. S. Rajasekar VS C. Sakthivel Raajhaa
In one instance, third-party security was upheld via Form No.6, Appendix F CPC, showing flexibility beyond defendants. Sri Eshan Capital, Rep. By its Managing Partners, KAS Eswaramurthi VS K. Palaniyammal - 2021 Supreme(Mad) 3176
Generally, a PoA holder may furnish security under Order XXXVIII Rule 6 CPC as the defendant's agent, provided the PoA expressly authorizes it and binds the principal under strict interpretation. However, courts emphasize defendant-centric obligations, prima facie proof, and precise bonds. Absent direct precedent, agency rules under Order III support this, but revocation or narrow PoA scope can invalidate actions.
Takeaways:- Prioritize clear PoA clauses.- Gather cogent evidence for applications.- Consider third-party sureties for certainty.
This analysis is for informational purposes and reflects general principles from cited cases. It does not constitute legal advice. Consult a qualified lawyer for case-specific guidance.
Anil Kumar VS Rajendra Prasad Singh - 2021 0 Supreme(Jhk) 211Deepika Constructions, Engineers and Civil Contractors VS Garikipati Radha Krishnaiah - 2006 0 Supreme(AP) 473Adduru Dasaratha Rami Reddy VS Vamireddy Vishnu (Minor) - 1992 0 Supreme(AP) 256SARDARSINGH VS KISHORILAL - 1959 0 Supreme(MP) 220C. Sengottaiyan VS K. Saravanan - 2013 0 Supreme(Mad) 2731Premnarayan VS Golden Heritage Developers Indore - 2023 Supreme(MP) 171S. Rajasekar VS C. Sakthivel RaajhaaGuduru Veera Nishitha vs G.V. Deepak Rao @ Laxmikantha Rao - 2025 Supreme(Online)(Tel) 55850Guduru Veera Nishitha vs G.V. Deepak Rao Laxmikantha Rao - 2025 Supreme(Telangana) 508A.V.Manaf, S/o. Abdul Rahiman Hajiyar vs P. Reghusankar, S/o. Late Sivasankaran - 2025 Supreme(Ker) 2679Sri Eshan Capital, Rep. By its Managing Partners, KAS Eswaramurthi VS K. Palaniyammal - 2021 Supreme(Mad) 3176Dinesan K. , S/o. Late Krishnan VS Pushpa K, W/o. Dinesan - 2019 Supreme(Ker) 676Dundawwa W/o Basappa @ Basangouda Halimani @ Agasbal VS Kenchawwa W/o Basappa Halimani @ Agasbal - 2018 Supreme(Kar) 1019
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It is only in the event of failure of the defendant to show cause against the order requiring the defendant to furnish security or failure to furnish security when asked to do so, that the Court can in terms of O.38, R.5 sub-rule (6) order attachment of the property. ... It is only after the defendants fails to show cause why he should not furnish security or fails to furnish #HL....
It is only in the event of failure of the defendant to show cause against the order requiring the defendant to furnish security or failure to furnish security when asked to do so, that the Court can in terms of Order 38 Rule 5 Sub Rule 6 order attachment of the property. ... The power with which a Civil Court is vested under Order 38 Rule 5 CPC....
6. Once the suit is decreed, the security furnished pursuant to an order under Order 38 Rule 5 CPC survives and enures to the benefit of the decree-holder. At the stage of execution, the liability of the surety arises in terms of the bond furnished by him. ... While disposing of the said application, the Trial Court, instead of ordering attachment of the property of the defendant, directed the defendant to furnish securit....
It is only in the event of failure of the defendant to show cause against the order requiring the defendant to furnish security or failure to furnish security when asked to do so, that the Court can in terms of O.38, R.5 sub-rule (6) order attachment of the property. ... It is only after the defendants fails to show cause why he should not furnish security or fails to furnish #HL....
power is exercised under Order 38 rule 5 CPC. ... The power under Order 38 rule 5 CPC is drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It Should be used sparingly and strictly in accordance with the rule. ... 5 of the C.P.C. the learned Judge of the trial has directed the petitioners to furnish solvent....
6. Further, it is seen that Order 38 Rule 5 of the C.P.C., does not restrict the power of the Court to attach properties which are without the jurisdiction of the Court. ... There cannot be any dispute with the proposition that the power under Order 38 Rule 5 of C.P.C., is extraordinary and cannot be resorted to on mere asking. However, in the instant case, the said question does not arise. The appellant had given an undertaking to....
During the pendency of the said suit, plaintiff No.1 represented by her Power of Attorney Holder, filed an Interlocutory Application under Order - XXIII, Rule - 1 read with 151 of CPC, vide I.A. ... Plaintiff No.1 filed the said suit through her Power of Attorney Holder, Mr. P. Viplav Kumar. 6. ... No.43 of 2009, the trial Court allowed the said application and the petition filed under Order - XXIII, Rule - 1 of #H....
Plaintiff No.1 filed the said suit through her Power of Attorney Holder, Mr. P. Viplav Kumar. 6. ... During the pendency of the said suit, plaintiff No.1 represented by her Power of Attorney Holder, filed an Interlocutory Application under Order - XXIII, Rule - 1 read with 151 of CPC , vide I.A. ... No.43 of 2009, the trial Court allowed the said application and the petition filed under Order - XXIII, Rule - 1 of #....
The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. ... The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the as....
Being aggrieved by the order under Order VI Rule 17 of CPC, the defendant filed O.P(C) No.1589/2025, seeking to set aside the order mainly on the ground that; a) the application filed by the plaintiff for discharging the Power of Attorney Holder is still pending; p class="para" ... After the appearance of the defendant, an application was filed by the defendant seeking to impound the Power of Attorney produced by t....
In view of the above, I am clear that the Court below has committed an illegality in rejecting the security furnished by the third party. The security referred to in O.38, Rule 6 is the security as contemplated under O.38, R.5, C.P.C. A reading of Form No.6 in Appendix F of C.P.C., would show that if the personal security of third party is not contemplated under O.38, Rule 5, C.P.C., the said form could not have been prescribed. Mr.R.Sekar would rely upon Adduru Dasaratha Rami Reddy V. Vamireddy Vishnu (Minor), A.I.R. 1992 A.P.307, wherein it was held that the nature of sec....
8. According to Order 3 Rule 1 of the CPC, any appearance, application or act in or to any court, required or authorised by law to be made by a party in person is allowed to be done by his recognized agent also except where otherwise expressly provided by any law, for the time being in force. As per Order 3 Rule 2 of CPC, the power of attorney holder is a recognized agent of the principal, who authorised him. So, the power of attorney holder is permitted to act, on behalf of the Principal, except where otherwise expressly provided by any law, for the time being in force.
6. It is true that, Order III Rule 1 and 2 of CPC empowers the holder of the power of attorney to act on behalf of the Principal. In this regard, in the judgment relied upon by the learned counsel for the petitioner in Man Kaur’s case (supra), it is observed that, where the law requires or contemplated the plaintiff or other party to a proceeding, to establish or prove something with reference to his “state of mind” or “conduct”, normally the person concerned alone has to give evidence and not an attorney-holder. The marital relationship which is personal and having intrica....
These allegations of the fraud are directed against individuals jointly and it is an action in personam. In the proposed amendment, the plaintiff has alleged fraud of the defendant No.6 as well. Mr. Mookherjee submits that the plaintiff has alleged collusion of the defendant Nos.1, 2 and 3 with the defendant No.5 in the original plaint and in the proposed amendment further particulars of such fraud have been furnished. The defendant No.6 being the power of attorney holder is proposed to be added as a defendant.
Notwithstanding this it is contended that even in proceedings to which the CPC applies, a party can be represented by a recognized agent. The holder of a power-of-attorney is a recognized agent under Order III Rule 2 of the CPC. It is contended that on a similar question, the Supreme Court has held in C. Venkatachalam vs. Ajitkumar C Shah, (2011)12 SCC 497, that in certain cases where the claim may involve professional expertise, such as where a person sues a hospital for medical negligence, an architect for a faulty design or a building contractor for defective work, a pro....
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