interim orders

 

COMMISSIONS : SECTIONS 75-78 AND ORDER 26

Section 75 to Section 78 deals with the power of the court to issue commissions and order 26 lay down detail provisions. The power of the court to issue commission is discretionary and can be exercised by the court for doing full and complete justice between the parties.[7] Section 75 runs as under:

75. Power of court to issue commissions- Subject to such conditions and limitations as may be prescribed, the court may issue a commission-

(a) to examine any person;

(b) to make a local investigation;

(c) to examine or adjust accounts; or

(d) to make a partition;

(e) to hold a scientific, technical, or expert investigation;

(f) to conduct sale of property which is subject to speedy and natural decay and which is in the custody of the Court pending the determination of the suit;

(g) to perform any ministerial act.

TO EXAMINE WITNESSES: SECTION 76-78 AND ORDER 26 RULE 1-8

As a general rule, the evidence of the witness in an action whether he is a party to the suit or not, should be taken in open court and tested by cross examination. Inability to attend the court on grounds of sickness or infirmity or detriment to the public interest may justify issue of a commission. The court has a discretion to relax the rule of attendance in court where the person sought to be examined as a witness resides beyond the local limits of the jurisdiction of the court or on any other ground which the court thinks sufficient.[8]

The essential requirement of Rule 4 is that the deposition of a witness examined on commission shall be taken down in writing, read over, and, whereas necessary, translated to the witness in order that mistakes or omission, if any, may be rectified or supplied. The mandate in Rule 4 to this extent must be complied strictly in order to ensure a correct record of the deposition. The further requirement of signature of Commissioner with the date of examination and deposition being left with the Commissioner to enable its production in Court is to ensure its authenticity. The only remaining requirement in Rule 4 of the witness' signature on the deposition has relevance to the admission of the witness of its correctness. The signature of the witness is not a part of the deposition and apart from acknowledging the correctness of his deposition on the deposition itself, it is not essential for any other purpose in this context. It is well known that under the Civil P.C. a deposition recorded in a Court, except that under O.18, R.16, C.P.C., does not require the witness' signature on the deposition. It appears that witness' signature on the deposition recorded on commission is only required for Court's assurance since the witness is not examined in Court. Accordingly, it cannot be said reasonably that the omission of witness signature on the deposition renders the deposition incomplete. If this be the true import of the witness' signature on the deposition recorded on omission, the deposition cannot be treated as incomplete, much less, invalid merely due to omission of witness' signature when correctness or authenticity of the deposition is undisputed.[9]

 

76. Commission to another Court- (1) A commission for the examination of any person may be issued to any Court (not being a High Court) situate in a State other than the State in which the Court of issue is situate and having jurisdiction in the place in which the person to be examined resides.

(2) Every Court receiving a commission for the examination of any person under sub-section (1) shall examine him or cause him to be examined pursuant thereto, and the commission, when it has been duly executed, shall be returned together with the evidence taken under it to the Court from which it was issued, unless the order for issuing the commission has otherwise directed, in which case the commission shall be returned in terms of such order.

 

77. Letter of request- In lieu of issuing a commission the Court may issue a letter of request to examine a witness residing at any place not within India.

Section 77 of the Code of Civil Procedure read with Section 75 empowers the Court to issue a letter of request to any person other than a Court to examine witnesses residing at any place not within India. This power of the Court is not subject to any reciprocal agreement between the Governments.[10]

78. Commissions issued by foreign Courts- Subject to such conditions and limitations as may be prescribed the provisions as to the execution and return of commissions for the examination of witnesses shall apply to commissions issue by or as the instance of-

(a) Courts situate in any part of India to which the provisions of this Code do not extend; or

(b) Courts established or continued by the authority of the Central Government outside India, or

(c) Courts of any State or country outside India.

 

 

ORDER XXVI-COMMISSIONS

Commissions to examine witnesses

1 . Cases in which Court may issue commission to examine witness— Any Court may in any suit issue a commission for the examination on interrogatories or otherwise of any person resident within the local limits of its jurisdiction who is exempted under this Code from attending the Court or who is from sickness or infirmity unable to attend it:

Provided that a commission for examination on interrogatories shall not be issued unless the Court, for reasons to be recorded, thinks it necessary so to do.

Explanation—The Court may, for the purpose of this rule, accept a certificate purporting to be signed by a registered medical practitioner as evidence of the sickness or infirmity of any person, without calling the medical practitioner as a witness.

When a commission is asked on the ground of illness the court is under an obligation of coming to a definite conclusion and recording a finding as to whether the illness is serious enough to prevent the witness from attending a court, before passing the order.[11]Evidence taken on commission cannot be used in the case unless it is found that the witness was too ill to attend at the time of the trial.[12] Mere age is not sufficient ground sickness and infirmity, its character and gravity have to be assessed.[13]The provision of commission do not apply to execution proceedings.[14] Examining the witness on commission is governed by well settled principles of law and it is not a ground that a witness doesnot want to appear in the court.[15]

2 . Order for commission— An order for the issue of a commission for the examination of a witness may be made by the Court either of its own motion or on the application, supported by affidavit or otherwise, of any party to the suit or of the witness to be examined.

Court while exercising the discretion is required to appraise the facts and circumstances under which party is inviting the court to issue commission.[16] Court has power to cancel the commission suo motu for sufficient cause.[17]

3 . Where witness resides within Court's jurisdiction— A commission for the examination of a person who resides within the local limits of the jurisdiction of the Court issuing the same may be issued to any person whom the Court thinks fit to execute it.

Where a commission is issued for examination of witness de bene esse the court shall adopt the procedure for the examination of witness  on commission under the code.[18]

4 . Persons for whose examination commission may issue— (1) Any Court may in any suit issue a commission for the examination on interrogatories or otherwise of—

(a) any person resident beyond the local limits of its jurisdiction;

(b) any person who is about to leave such limits before the date on which he is required to be examined in Court; and

(c) any person in the service of the Government who cannot in the opinion of the Court, attend without detriment to the public service:

 Provided that where, under rule 19 of Order XVI, a person cannot be ordered to attend a Court in person, a commission shall be issued for his examination if his evidence is considered necessary in the interests of justice:

Provided further that a commission for examination of such person on interrogatories shall not be issued unless the Court, for reasons to be recorded, thinks it necessary so to do.

(2) Such commission may be issued to any Court, not being a High Court, within the local limits of whose jurisdiction such person resides, or to any pleader or other person whom the Court issuing the commission may appoint.

(3) The Court on issuing any commission may this rule shall direct whether the commission shall be returned to itself or to any subordinate Court.

Where defendant a railway asks for commission to examine ten witnesses residing outside court's jurisdiction and nine witnesses are in employ of defendant the commission should not be granted as its would put the plaintiff to unnecessary expense.[19]

4A. Commision for examination of any person resident within the local limits of the jurisdiction of the court— Notwithstanding any thing contained in these rules, any court may, in the interest of justice or for the expeditious disposal of the case or for any other reason, issue commission in any suit for the examination, on interrogatories or otherwise, of any person resident within the local limits of its jurisdiction, and the evidence so recorded shall be read in evidence.[20]

5 . Commission or request to examine witness not within India— Where any Court to which application is made for the issue of a commission for the examination of a person residing at any place not within India is satisfied that the evidence of such person is necessary, the Court may issue such commission or a letter of request.

6 . Court to examine witness pursuant to Commission— Every Court receiving a commission for the examination of any person shall examine him or cause him to be examined pursuant thereto.

7 . Return of commission with depositions of witnesses— Where a commission has been duly executed, it shall be returned, together with the evidence taken under it, to the Court from which it was issued, unless the order for issuing the commission has otherwise directed, in which case the commission shall be returned in terms of such order; and the commission and the returned thereto and the evidence taken under it shall subject to the provisions of rule 8 form part of the record of the suit.

Evidence taken on commission only forms part of the record in the same way as pleading, affidavits and other documents. It doesnot become evidence unless it is admitted by the court as such.[21]

8 . When depositions may be read in evidence— Evidence taken under a commission shall not be read as evidence in the suit without the consent of the party against whom the same is offered, unless—

(a) the person who gave the evidence is beyond the jurisdiction of the Court, or dead or unable from sickness or infirmity to attend to be personally examined, or exempted from personal appearance in Court or is a person in the service of the Government who cannot, in the opinion of the Court, attend without detriment to the public service, or

(b) the Court in its discretion dispenses with the proof of any of the circumstances mentioned in clause (a) and authorizes the evidence of any person being read as evidence in the suit, notwithstanding proof that the cause for taking such evidence by commission has ceased at the time of reading the same.

Evidence taken on commission was treated as evidence though not formally tendered[22] but in Vithaldas v. Lakshmidas[23] it was held that neither party can use the evidence unless tendered and admitted to evidence.A witness living few hundred yards outside jurisdiction of the court but within 200 miles from court cannot be said to live beyond jurisdiction.[24]

When there is evidence to prove that on the day on which the statement of a witness taken under a commission was admitted on the record and thereafter during the course of the inquiry the witness was unable to remain present in the Court his statement is admissible under Rule 8.[25]

Commissions for local investigations

9 . Commissions to make local investigations— In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court:

Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules.

 The object of local investigation is not to collect evidence which can be taken in court but to obtain evidence which form its very peculiar nature can be had only on the spot.[26] Though exercise of power of issuing commission is discretionary bit in case local investigation is requisite and proper in the facts and circumstances of the case, it should be exercised so that a final and just decision is rendered in the case.[27]

The plaintiff filed a suit for possession of suit premises and for mesne profits or damages, an inquiry into mesne profits or damages and consequential reliefs. The plaintiff specifically claimed, inter alia, that it was entitled to mesne profits and/or damages according to the "present rental value of the premises" i.e. at Rs.60 per 100 Sq. feet. The plaintiff in fact made an application under O. 26, R. 9 for local inquiry for determination of mesne profits. Instead of examining that application and disposing it of on merits, the trial Court merely ordered that it would "stand over" till the hearing of the suit. The trial Court with out deciding the application decreed the suit taking the view that the "existing rents" would be a "fair measure" of the mesne profits claimed by the plaintiff.

Held, that the trial Court went wrong in denying the plaintiff an opportinity to prove the amount of mesne profit from the date of the institution of the suit until delivery of possession .The High court did not corect the error while examining the plaintiff's appeal,and laboured under the mistaken impression that the plaintiff didnot make any attempt to give evidence on the point during the course of the trial. That was obviously a mistake as the High court failed to notice that plaintiff had in fact been prevented from proving its claim for mesne profit at the "present rental value".[28]

10 . Procedure of Commissioner— (1) The Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him, to the Court.

(2) Report and deposition to be evidence in suit. Commissioner may be examined in person—The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the Court or, with the permission of the Court, any of the parties to suit may examine the Commissioner personally in open Court touching any part of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation.

(3) Where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit.

Merely because no objection is raised by the defendant to the commissioner's report that does not mean that the report stand proved on record. There is established procedure known to law by which the commissioner's report can be proved on evidence.[29]

Commissions for scientific investigation, performance of ministerial act and sale of movable property

10A . Commission for scientific investigation— (1) Where any question arising in a suit involves any scientific investigation which cannot, in the opinion of the Court, be conveniently conducted before the Court, the Court may, if it thinks it necessary or expedient in the interests of justice so to do, issue a commission to such person as it thinks fit, directing him to inquire into such question and report thereon to the Court.

(2) The provisions of rule 10 of the Order shall, as far as may be, apply in relation to a Commissioner appointed under this rule as they apply in relation to a Commissioner appointed under rule 9.

Report of handwriting expert is admissible evidence under rule 10. It comes within the meaning of scientific investigation but such evidence is not conclusive.[30]

10B . Commission for performance of a ministerial act— (1) Where any question arising in a suit involves the performance of any ministerial act which cannot, in the opinion of the Court, be conveniently performed before the Court, the Court may, if, for reasons to be recorded, it is of opinion that it is necessary or expedient in the interests of justice so to do, issue a commission to such person as it thinks fit, directing him to perform that ministerial act and report thereon to the Court.

Where in view of order appointing a Special Officer by the Division Bench of the High Court to demarcate the plots in question by taking assistance of a Surveyor, the Surveyor was appointed by the consent of parties and on the basis of the survey done the Special Officer submitted his report objection to which also stood dismissed, the order of the Division bench disposing of appeal with direction to the Special Officer appointed earlier by single Judge of High Court, to hand over possession of plots to one of parties, was not legal on the ground of non-consideration of relevant material. The aforesaid report of the Special Officer as well as the survey done by the Surveyor constituted an important item of evidence which could not have been ignored by the Division Bench while disposing of the appeal. Further, any direction could be given by Division Bench only to the Special Officer appointed by it and not to Special Officer appointed earlier by single Judge. Order made was illegal.[31]

10C . Commission for the sale of movable property— (1) Where in any suit, it becomes necessary to sell any movable property which is in the custody of the Court pending the determination of the suit and which cannot be conveniently preserved, the Court may, if, for reasons to be recorded, it is of opinion that it is necessary or expedient in the interests of justice so to do, issue a commission to such person as it thinks fit, directing him to conduct such sale and report thereon to the Court.

(2) The provisions of rule 10 of this Order shall apply in relation to a Commissioner appointed under this rule as they apply in relation to a Commissioner appointed under rule 9.

(3) Every such sale shall be held, as far as may be, in accordance with the procedure prescribed for the sale of movable property in execution of a decree.]

 

Commissions to examine accounts

11 . Commission to examine or adjust accounts— In any suit in which an examination or adjustment of the accounts is necessary, the Court may issue a commission to such person as it thinks fit directing him to make such examination or adjustment.

Commissioner for examination of accounts has no power to summon witness and record their evidence. The commissioner is not judge of arbitrator.[32]

12 . Court to give Commissioner necessary instructions— (1) The Court shall furnish the Commissioner with such part of the proceedings and such instructions as appear necessary, and the instructions shall distinctly specify whether the Commissioner is merely to transmit the proceedings which he may hold on the inquiry, or also to report his own opinion on the point referred for his examination.

(2) Proceedings and report to be evidence. Court may direct further inquiry—The proceedings and report (if any) of the Commissioner shall be evidence in the suit, but where the Court has reason to be dissatisfied with them, it may direct such further inquiry as it shall think fit.

 

Commissions to make partitions

13 . Commission to make partition of immovable property— Where a preliminary decree for partition has been passed, the Court may, in any case not provided for by section 54, issue a commission to such person as it thinks fit to make the partition or separation according to the rights as declared in such decree.

The decree as a matter of fact leaves nothing for future. As noticed earlier in a preliminary decree normally the court declares the shares of the parties and specifies the properties to be partitioned in the event of there being a dispute about the properties to be partitioned. After declaring the shares of the parties and the properties to be partitioned, the Court appoints a Commissioner to suggest mode of partition in terms of O. XXVI, R. 13, C.P.C. A perusal of Order XXVI, R. 13, C.P.C. shows that it comes into operation after a preliminary decree for partition has been passed. In the present case, there was no preliminary decree for partition and, therefore, R. 13 of O. XXVI does not come into operation.[33]

14 . Procedure of Commissioner— (1) The Commissioner shall, after such inquiry as may be necessary, divide the property into as many shares as may be directly by the order under which the commission was issued, and shall allot such shares to the parties, and may, if authorised thereto by the said order, award sums to be paid for the purpose of equalizing the value of the shares.

(2) The commissioner shall then prepare and sign a report or the Commission (where the commission was issued to more than one person and they cannot agree) shall prepare and sign separate reports appointing the share of each party and distinguishing each share (if so directed by the said order) by metes and bounds. Such report or reports shall be annexed to the commission and transmitted to Court; and the Court, after hearing any objections which the parties may make to the report or reports, shall confirm, vary or set aside the same.

(3) Where the Court confirms or varies the report or reports it shall pass a decree in accordance with the same as confirmed or varied; but where the Court sets aside the report or reports it shall either issue a new commission or make such other order as it shall think fit.

The following passage from Mitra on the Law of Joint Property and Partition in British India, Second Edition, page. 414 enunciates:

"You will note that sums directed to be paid for the purpose of equalizing the values of the shares are in legal language called 'Owelty'. The Commissioners have authority without express authorization by the Court to award this compensation. (See Rule 14, Order XXVI, C.P. Code). Where in a suit for partition the decree of the Court declares that any sum of money should be paid as owelty by one co-sharer to another the Court may direct such sum to be a charge on the share allotted. In such a case should the co-sharer before partition have created any mortgage in respect of his undivided interest prior to the partition, the charge for the owelty will have precedence over the mortgage, Shahebzadah Mohammed Kazim Shah v. R.S. Hill, I.L.R. 35 Cal. 388(A)."[34]

General provisions

15 . Expenses of commission to be paid into Court— Before issuing any commission under this Order, the Court may order such sum (if any ) as it thinks reasonable for the expenses of the commission to be, within a time to be fixed, paid into Court by the party at whose instance or for whose benefit the commission is issued.

16 . Powers of Commissioners— Any Commissioner appointed under this Order may, unless otherwise directed by the order of appointed.

(a) examine the parties themselves and any witness whom they or any of them may produce, and any other person whom the Commissioner thinks proper to call upon to give evidence in the matter referred to him;

(b) call for and examine documents and other things relevant to the subject of inquiry;

(c) at any reasonable time enter upon or into any land or building mentioned in the order.

16A . Questions objected to before the Commissioner— (1) Where any question put to a witness is objected to by a party or his pleader in proceedings before a Commissioner appointed under this Order, the Commissioner shall take down the question, the answer, the objections and the name of the party or, as the case may be, the pleader so objecting:

Provided that the Commissioner shall not take down the answer to a question which is objected to on the ground of privilege but may continue with the examination of the witness, leaving the party to get the question of privilege decided by the Court, and, where the Court decides that there is no question of privilege, the witness may be recalled by the Commissioner and examined by him or the witness may be examined by the Court with regard to the question which was objected to on the ground of privilege.

(2) No answer taken down under sub-rule (1) shall be read was evidence in the suit except by the order of the Court.]

17 . Attendance and examination of witnesses before Commissioner— (1) The provisions of this Code relating to the summoning, attendance and examination of witnesses, and to the remuneration of, and penalties to be imposed upon, witnesses, shall apply to persons required to give evidence or to produce documents under this Order whether the commission in execution of which they are so required has been issued by a Court situate within or by a Court situate beyond the limits of India, and for the purposes of this rule the Commissioner shall be deemed to be a Civil Court:

[Provided that when the Commissioner is not a Judge of a Civil Court he shall not be competent to impose penalties; but such penalties may be imposed on the application of such Commissioner by the Court by which the commission was issued.]

(2) A Commissioner may apply to any Court (not being a High Court) within the local limits on whose jurisdiction a witness resides for the issue of any process which he may find it necessary to issue to or against such witness, and such Court may, in its discretion, issue such process as it considers reasonable and proper.

18 . Parties to appear before Commissioner— (1) Where a commission is issued under this Order, the Court shall direct that the parties to the suit shall appear before the Commissioner in person or by their agents or pleaders.

(2) Where all or any of the parties do not so appear, the Commissioner may proceed in their absence.

18A . Application of Order to execution proceedings— The provisions of this Order shall apply so far as may be, to proceedings in execution of a decree or order.

18B . Court to fix a time for return of commission— The Court issuing a commission shall fix a date on or before which the commission shall be returned to it after execution, and the date so fixed shall not be extended except where the Court, for reasons to be recorded, is satisfied that there is sufficient cause for extending the date.]

 

 

Commissions issued at the instance of foreign Tribunals

19 . Cases in which High Court may issue commission to examine witness— (1) If a High Court is satisfied—

(a) that a foreign court situated in a foreign country wishes to obtain the evidence of a witness in any proceeding before it,

(b) that the proceeding is of a civil nature, and

(c) that the witness is residing within the limits of the High Court's appellate jurisdiction,

it may, subject to the provisions of the rule 20, issue a commission for the examination of such witness.

(2) Evidence may be given of the matters specified in clauses (a), (b) and (c) of sub-rule (1)—

(a) by a certificate signed by the consular officer of the foreign country of the highest rank in India and transmitted to the High Court through the Central Government, or

(b) by a letter of request issued by the foreign Court and transmitted to the High Court through the Central Government, or

(c) by a letter of request issued by the foreign Court and produced before the High Court by a party to the proceeding.

When in a proceeding of civil nature, pending in a foreign court, a letter of request was sent to the high court for examination of some witinesses residing within the jurisdiction of high court, the high court can issue commission for examination of witnesses.[35]

20 . Application for issue of commission— The High Court may issue a commission under rule 19—

(a) upon application by a party to the proceeding before the foreign Court, or

(b) upon an application by a law officer of the State Government acting under instructions from the State Government.

21 . To whom commission may be issued— A commission under rule 19 may be issued to any Court within the local limits of whose jurisdiction the witness resides, or the witness resides within the local limits of the ordinary original civil jurisdiction of the High Court to any person whom the Court thinks fit to execute the commission.

22 . Issue, execution and return of commissions, and transmission of evidence to foreign Court— The provisions of rules 6, 15 [316][Sub-rule (1) of rule 16A, 17, 18 and 18B] of this Order in so far as they are applicable shall apply to the issue, execution and return of such commissions, and when any such commission has been duly executed it shall be returned, together with the evidence taken under it, to the High Court, which shall forward it to the Central Government, along with the letter of request for transmission to the foreign court.

 

ARREST BEFORE JUDGEMENT – ORDER 38

Arrest before judgment

Generally a creditor having a claim against his debtor has first to obtain a decree against him and then execute the said decree by having him arrested or his property attached in execution under the provisions of Order 21. Under special circumstances, however, the creditor can move for the arrest of the debtor or for the attachment of his property even before the judgement. The object underlying these provisions is to enable the plaintiff is to enable the plaintiff to realize the amount of decree if one is eventually passed in favour and to prevent any attempt on the part of the defendant to defeat the execution of such decree passed against him.[36]

1 . Where defendant may be called upon to furnish security for appearance— Where at any stage of a suit, other than a suit of the nature referred to in section 16, clauses (a) to (d), the Court is satisfied, by affidavit or otherwise,—

(a) that the defendant, with intent to delay the plaintiff, or to avoid any process of the Court or to obstruct or delay the execution of any decree that may be passed against him—

(i) has absconded or left the local limits of the jurisdiction of the Court, or

(ii) is about to abscond or leave the local limits of the jurisdiction of the Court his property or any part thereof, or

(b) that the defendant is about to leave India under circumstances affording reasonable probability that the plaintiff will or may thereby be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit,

the 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:

Provided that the defendant shall not be arrested if he pays to the officer entrusted with the execution of the warrant any sum specified in the warrant as sufficient to satisfy the plaintiff's claim; and such sum shall be held in deposit by the Court until the suit is disposed of or until the further order of the Court.

The court has to see whether the suit is bonafide. It should be satisfied that (1) plaintiff cause of action is prima facie unimpeachable and (2)that there are adequate materials to be believe that unless the power is exercised the defendant will remove himself from jurisdiction.[37]

2 . Security— (1) Where the defendant fails to show such cause the Court shall order him either to deposit in Court money or other property sufficient answer the claim against him, or to furnish security for his appearance at any time when called upon while the suit is pending and until satisfaction of any decree that may be passed against him in the suit, or make such order as it thinks fit in regard to the sum which may have paid by the defendant under the provison to the last preceding rule.

(2) Every surety for the 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.

 It is contemplated that on failing to make deposit the defendant is to give security for appearance in a particular sum fixed by the judge, but that if this security takes the form of a bond by a surety it is to be limited to the amount claimed.[38] Where after the deposit defendant become insolvent or other decree-holders attach it , plaintiff is entitled to priority[39]

3 . Procedure on application by surety to be discharged— (1) A surety for the appearance of a defendant may at any time apply to the Court in which he became such surety to be discharged from his obligation.

(2) On such application being made, the Court shall summon the defendant to appear or, if it thinks fit may issue a warrant for his arrest in the first instance.

(3) On the appearance of the defendant in pursuance of the summons or warrant, or on his voluntary surrender, the Court shall direct the surety to be discharged from his obligation, and shall call upon the defendant to find fresh security.

4 . Procedure where defendant fails to furnish security or find fresh security— 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.

Section 95. Compensation for obtaining arrest, attachment or injunction on insufficient grounds— Where, in any suit in which an arrest or attachment has been effected or a temporary injunction granted under the last preceding section,—

(a) it appears to the Court that such arrest, attachment or injunction was applied for on insufficient grounds, or

(b) the suit of the plaintiff fails and it appears to the Court that there was no reasonable or probable grounds for instituting the same,

the defendant may apply to the Court, and the Court may, upon such application, award against the plaintiff by its order such amount, not exceeding fifty thousand rupees, as it deems a reasonable compensation to the defendant for the expense or injury (including injury to reputation) caused to him];

Provided that a Court shall not award, under this section, an amount exceeding the limits of its peculiar jurisdiction.

(2) An order determining any such application shall bar any suit for compensation in respect of such arrest, attachment or injunctio

 

ATTACHMENT BEFORE JUDGEMENT- ORDER 38

Attachment before judgment

Like arrest before judgement in certain circumstances an attachment before judgement may be ordered by the court. The primary object of attachment before judgement is to prevent any attempt on the part of the defendant to defeat the realization of the decree that may be passed against him.[40] It thus prevents any attempt on the part of the defendant to defeat realization of the decree passed in favour of the plaintiff.[41] The remedy of an attachment before judgment is an extraordinary remedy and must be exercised sparingly and strictly in accordance with law and with utmost care and caution so that it may not become an engine of oppression.[42]

The sole object behind the order levying attachment before judgment is to give an assurance to the plaintiff that his decree if made would be satisfied. It is a sort of a guarantee against decree becoming in fructuous for want of property available from which the plaintiff can satisfy the decree. If attachment before judgment is obtained in a suit which ends in decree but if in appeal the decree is set aside the attachment of necessity must fall.[43]

5 . Where defendant may be called upon to furnish security for production of property—

 (1) Where, at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him,—

(a) is about to dispose of the whole or any part of his property, or

(b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court,

the Court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the Court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security.

(2) The plaintiff shall, unless the court otherwise directs, specify the property required to be attached and the estimated value thereof.

(3) The Court may also in the order direct the conditional attachment of the whole or any portion of the property so specified.

(4) If an order of attachment is made without complying with the provisions of sub-rule (1) of this rule such attachment shall be void.

Before the order of attachment can be made the court must be satisfied about the following two conditions:-

·         That the defendant is about to dispose of the whole or any part of his property.

·         That the disposal is with the intention of obstructing or delaying the execution of any decree that may be passed against him[44]

An attachment practically takes away the power of alienation and such a restriction on the exercise of the undoubted rights of ownership ought not to be imposed upon an individual except upon clear and convincing proof that the order is needed for the protection of plaintiff.[45] Where in a suit for recovery of loan there were allegation that guarantor was about to dispose of his property. In an application for attachment of property due to inadequate materials and absence of valid grounds relief of attachment before judgment cannot be granted.[46]

 

The said rule gives authority to the Court to pass attachment before judgment after being satisfied by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him may try to dispose of the property. Before issuing such order of attachment, the Court must satisfy itself that the defendant is about to dispose of the whole or any part of his property, or is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court. It is only on the satisfaction of these conditions, the Court can pass an order of attachment under O. XXXVIII, R. 5. It is also pertinent to note that by the Amending Act of 1976, a new sub-rule was added to R. 5 of Order XXXVIII to the effect that if an order of attachment is made without complying with the provisions of sub-rule (1) of the said rule, such attachment shall be void. Therefore, the importance is given to the mandatory conditions under R. 5(1) of Order XXXVIII and there is no such similar insertion in S. 136. Therefore, the failure, if any, on the part of the Court which issued the attachment order in sending the attachment order and the connected papers to the District Court will not invalidate the attachment order as such. Since the procedure laid down in S. 136 of sending the order of attachment sent to the District Court when the property is situate outside the jurisdiction of the issuing authority is only to maintain the comity of Courts as, in some cases, the attachment order might be issued by the Munsif/Civil Judge (Junior Division) and the property to be attached might be within the jurisdiction of the Civil Judge (Sr. Dn.)/Subordinate Judge and in the fitness of things.[47]

6 . Attachment where cause not shown or security not furnished— (1) Where the defendant fails to show cause why he should not furnish security, or fails to furnish the security required, within the time fixed by the Court, the Court may order that the property specified, or such portion thereof as appears sufficient to satisfy any decree which may be passed in the suit, be attached.

(2) Where the defendant shows such cause of furnishes the required security, and the property specified or any portion of it has been attached, the Court shall order the attachment to be withdrawn, or make such other order as it thinks fit.

Order of attachment can not be passed until the defendant has failed to show sufficient cause or furnish security.[48]

In case Saseendran vs. Sadanandan,2004 (1) ICC 306 that dismissal of the application without any attachment already effected, could not be said to be an order under Order 38 Rule 6 (2)CPC, therefore, no appeal is maintainable. The court further observed as under :-

“..... Under Order XXXVIII Rule 6 (2) the Court can also withdraw attachment and make such order as it thinks fit. We are of the view that only in case where attachment is effected or in case where attachment is withdrawn appeal is provided under Order XLIII Rule 1 (q). In this case no attachment has been effected and no order of attachment was withdrawn. Consequently impugned order will not fall under OrderXXXVIII Rule 6 and no appeal is maintainable under order XLIII Rule 1 (q). In this connection we may refer to the decision of a learned Single Judge of this Court in Varghese vs. Varghese, 2001 (1)KLT 489. Learned Judge held that theorder contemplated under sub rule 6 is one based on theconsequences of the failure of the defendants to comply with the Court's directives under sub-rule (5). Counsel appearing for the appellant submitted that this is a case where no objection was filed by the defendant-respondent. Consequently, it is submitted that the order challenged would fall under Order XXXVIII, Rule 5 and not under Rule 6. Counsel submitted that in a case where no objection has been filed then the order would fall under Order XXXVIII Rule 6. We are afraid such a contention cannot be accepted.

7 . Mode of making attachment— Save as otherwise expressly provided, the attachment shall be made in the manner provided for the attachment of property in execution of a decree.

8 . Adjudication of claim to property attached before judgment— Where any claim is preferred to property attached before judgment, such claim shall be adjudicated upon in the manner hereinbefore provided for the adjudicated of claims to property attached in execution of a decree for the payment of money.

9 . Removal of attachment when security furnished or suit dismissed— 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 cost of the attachment, or when the suit is dismissed.

While issuing the attachment before judgment, court only ensures that defendant doesnot dispose of property pending suit. On the other hand attachment in execution is a step in execution and such attachments are often readily granted. Such attachments are not liable to be lifted on furnishing security.[49]

10 . Attachment before judgment not to affect rights of strangers, nor bar decree-holder from applying for sale— Attachment before judgment shall not affect the rights, existing prior to the attachment, of persons not parties to the suit, nor bar any person holding a decree against the defendant from applying for the sale of the property under attachment in execution of such decree.

The principle in rule 10 is not limited to attachments before judgement but applies to all attachments. Where in pursuance of an agreement to sell entered into before the attachment the attached property is purchased by vendee after attachment, the purchase would prevail against attachment.[50]

11 . Property attached before judgment not to be re-attached in execution of decree— Where property is under attachment by virtue of the provisions of this order and a decree is subsequently passed in favour of the plaintiff, it shall not be necessary upon a application for execution of such decree to apply for a re-attachment of the property.

 The rule 11 declares that attachment before judgment granted shall be effective and operative even after passing of the decree and while executing such decree it is not necessary to seek re-attachment of the property. The position is further clarified by incorporation of rule 11A. The legislature makes it clear that the provision relation to attachment made in execution decree is made applicable to the attachment before judgement and further declares that the restoration of a suit dismissed for default in which any order of attachment before judgement made an interim order would not get revived by the order of restoration of the suit.[51]

11A . Provisions applicable to attachment— (1) The provisions of this Code applicable to an attachment made in execution of a decree shall so far as may be, apply to an attachment made before judgment which continues after the judgment by virtue of the provisions of rule 11.

(2) An attachment made before judgment in a suit which is dismissed for default shall not become revived merely by reason of the fact that the order for the dismissal of the suit for default has been set aside and the suit has been restored.]

12 . Agricultural produce not attachable before judgment— Nothing in this Order shall be deemed to authorize the plaintiff to apply for the attachment of any agricultural produce in the possession of an agriculturist, or to empower the Court to order the attachment or production of such produce.

13 . Small Cause Court not to attach immovable property— Nothing in this Order shall be deemed to empower any Court of Small Causes to make order for the attachment of immovable property.

 

TEMPORARY INJUCTION-ORDER 39

Temporary injunctions

It is well settled principle of law that interim relief can always be granted in the aid of and as ancillary to the main relief available to the party on final determination of his rights in a suit or any other proceeding. Therefore court undoubtedly possesses the power to grant interim relief during pendency of suit.[52] Temporary injunctions are thus injunctions issued during the pendency of proceedings. An injunction is a judicial process whereby the party is required to do, or to refrain from doing, any particular act. It is remedy in the form of an order of the court addressed to a particular person that either prohibits from doing or continuing to do particular act (prohibitory injunction); or orders him to carry out a certain act (mandatory injunction). The primary purpose of granting interim relief is the preservation of property in dispute till legal rights and conflicting claims of the parties before the court are adjudicated i.e to maintain and preserve status quo at the time of institution of the proceedings and to prevent any change in it until final determination of suit.[53]

1 . Cases in which temporary injunction may be granted— 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, or wrongfully sold in a execution of a decree, or

(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 be order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property [387][or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit] as the Court thinks fit, until the disposal of the suit or until further orders.

It is not only the plaintiff who can apply for an injunction, a defendant can also apply for injunction against plaintiff. An in injunction may be issued only against the parties to the suit and not against stranger or third party.[54] Granting of injunction is discretionary power of the court but Generally before granting injunction court must be satisfied with following aspects(1) Prima facie case (2) Irreparable injury (3) Balance of convenience (4) other factors.[55]

Claim by educational institution operating beyond land legally leased to it. Injunction granted by Trial Court for entire structure allowed to continue for years. SC refused to interfere considering fact that applicant was running educational institution in suit property and Institution however restrained from putting up any new structure. Revision against injunction under O. 39, Rule 1, 2 which is interlocutory in nature is not tenable though High Court can suo motu convert it into petition under Art. 227 of Constitution.[56]

Appellants were admitted to respondent society as promoter members and subsequently resolution was passed declaring their admission as invalid. Articles of Association requiring certain sum to be paid before admission as promoter member and such sum neither paid by appellants at time of their admission nor at time impugned resolution was passed. Refusal to grant injunction restraining respondent from holding election without an opportunity to appellants to participate was held proper.[57]

Unless and until a case of irreparable loss or damage is made out by a party to the suit, the Court should not permit the nature of the property being changed which also includes alienation or transfer of the property which may lead to loss or damage being caused to the party who may ultimately succeed and may further lead to multiplicity of proceedings. In the instant case no such case of irreparable loss is made out except contending that the legal proceedings are likely to take a long time, and therefore, the respondent should be permitted to put the scheduled property to better use. In the facts and circumstances of the case, the lower appellate Court and the High Court were not justified in permitting the respondent to change the nature of property by putting up construction as also by permitting the alienation of the property, whatever may be the condition on which the same is done. In the event of the appellant's claim being found baseless ultimately, it is always open to the respondent to claim damages or, in an appropriate case, the Court may itself award damages for the loss suffered, if any, in this regard. Since the facts of this case do not make out any extraordinary ground for permitting the respondent to put up construction and alienate the same, Courts below erred in making the impugned orders. The said orders are liable to be set aside.[58]

The Courts in India like the Courts in England are Courts of both law and equity. The principles governing grant of injunction an equitable relief by a Court will also govern grant of anti-suit injunction which is but a species of injunction. When a Court restrains a party to a suit/proceeding before it from instituting or prosecuting a case in another Court including a foreign Court, it is called anti-suit injunction. It is a common ground that the Courts in India have power to issue anti-suit injunction to a party over whom it has personal jurisdiction, in an appropriate case. This is because Courts of equity exercise jurisdiction in personam. However, having regard to the rule of comity, this power will be exercised sparingly because such an injunction though directed against a person, in effect causes interference in the exercise of jurisdiction by another Court.[59]

Where the applicant for grant of temporary injuction restraining execution of eviction decree, had participated in the eviction suit as constituted attorney of the tenant and caretaker of disputed premises without claiming to be tenant from the landlord and the objection to execution of the eviction decree filed by his wife was rejected, there could be no basis for grant of temporary injunction to the applicant. The grant of temporary injunction to the applicant in review petition was extraordinary, when injunction had been refused to the applicant both by Trial Court and High Court.[60]

In the suit for relating to dispute about title of land. Plaintiff and defendant found to be in possession of about half portion of disputed land. Held, injunction restraining defendant from putting up construction on entire land would be justified. Situation might become irreversible by the time dispute is decided if injunction is not granted.[61]

2 . Injunction to restrain repetition or continuance of breach— (1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained, of, or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right.

(2) The Court may be order grant such injunction, on such terms as to the duration of the injunction, keeping an account, giving security, or otherwise, as the Court thinks fit.

In the instant case the issue whether the plaintiff is entitled for possession was yet to be decided by the trial Court hence granting of any interim order directing handing over of possession to plaintiff would only mean decreeing the suit even before trial. Once the possession of the defendant either directly or through his agent (caretaker) isadmitted then the fact that he was not using the said property for commercial purpose or not using the same for any beneficial purpose or he had to pay huge amount by way of damages in the event of he losing the case or the fact that the litigation between the parties was a luxury litigation are all facts which are irrelevant for changing the status quo in regard to possession during the pendency of the suit.[62]

The Grant of unconditional order in favour of new contractor ignoring huge investments made by old contractor to operate mine under existing agreement was held not proper temporary injunction was order modified by imposing conditions.[63]       

It is one thing to conclude that the trial Court has not recorded its prima facie satisfaction on merits but granted the temporary injunction and it is another thing to hold that trial Court has gone wrong in recording the prima facie satisfaction and setting aside that finding on the basis of the material on record because it has not considered the relevant material or because it has erroneously reached the finding or conclusions on the facts established. In the first situation, the appellate Court will be justified in upsetting the order under appeal even without going into the merits of the case but in the second eventuality, it cannot set aside the impugned order without discussing the material on record and recording a contrary finding. The order of High Court setting aside the order of the trial Court ignoring the aforementioned findings of the trial Court, therefore, unsustainable.[64]

2A . Consequence of disobedience or breach of injunction— (1) In the case of disobedience of any injunction granted or other order made under rule 1 or rule 2 or breach of any of the terms on which the injunction was granted or the order made, the Court granting the injunction or making the order, or any Court to which the suit or proceeding is transferred, may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in the civil prison for a term not execeding three months, unless in the meantime the Court directs his release.

(2) No attachment made under this rule shall remain in force for more than one year, at the end of which time if the disobedience or breach continues, the property attached may be sold and out of the proceeds, the Court may award such compensation as it thinks fit to the injured party and shall pay the balance, if any, to the party entitled thereto.]

The words "and may also" in Rule 2-A cannot be interpreted in the context as denoting to a step which is permissible only as additional to attachment of property of the opposite party. If those words are interpreted like that it may lead to an anomalous situation. If the person who defies the injunction order has no property at all the Court becomes totally powerless to deal with such a disobedient party. He would be immuned from all consequences even for any open defiance of a court order. No interpretation shall be allowed to bring about such a sterile or anomalous situation. It is open to the Court to attach the property of the disobeying party and at the same time the Court can order him to be detained in civil prison also if the Court deems it necessary. Similarly the Court which orders the person to be detained in civil prison can also attach the property of that person. Both steps can be resorted to or one of them alone need be chosen. It is left to the Court to decide on consideration of the fact situation in each case. Sub-rule (2) provides that if the dis-obedience or breach continues beyond one year from the date of attachment the Court is empowered to sell the property under attachment and compensate the affected party from such sale proceeds. In other words, attachment will continue only till the breach continues or the disobedience persists subject to a limit of one year period. If the disobedience ceases to continue in the meanwhile the attachment also would cease. Thus even under O. 39, R. 2-A the attachment is a mode to compel the opposite party to obey the order of injunction. But detaining the disobedient party in civil prison is a mode of punishment for his being guilty of such disobedience.[65]

In a proceeding against Government and its officers on ground of disobedience by them of a court's injunction order directing reinstatement of an employee and to pay his back wages, it was ordered to send the respondent to civil prison (though the particular officer who was to be imprisoned was not specified) and to attach the Government property (though no particulars of the property to be attached were given).Held, such a laconic order could not stand. Where liberty and property are to be deprived it is fundamental that vagueness is a fatal vice even if the issuing authority be the court.[66]

Section 94(c) and Rule 2-A of Order 39 provide for the consequences resulting from a disobedience or breach of an order of injunction issued by the court. The penalty may be either arrest of the opponent or attachment of his property or both. However, the detention in civil prison shall not exceed three months and the attachment of property shall not remain in force for more than one year.[67] If the disobedience or breach continues, the property attached may be sold and, out of the proceeds, the court may award such compensation as it thinks fit to the injured party.4 The transferee court can also exercise this power and can punish for breach of injunction granted by the transferor court.

3 . Before granting injunction, Court to direct notice to opposite party— The Court shall in all case, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party:

Provided that, where it is proposed to grant an injunction without giving notice of the application to the opposite party, the Court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant—

(a) 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—

(i) a copy of the affidavit filed in support of the application;

(ii) a copy of the plaint; and

(iii) copies of documents on which the applicant relies, and

(b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.]

The court shall before granting an injunction give notice to the opposite party except where it appear that object of granting the injunction would be defeated by delay.[68]

If a Court which passed the order granting interim ex parte injunction did not record reasons thereof or did not require the applicant to perform the duties enumerated in clauses (a) and (b) of R. 3 of Order 39, such an order can be deemed to contain such requirements at least by implication even if they are not stated in so many words. A party, in whose favour an order was passed ex parte, must 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 application for injunction together with a copy of the affidavit filed in support of the application; a copy of the plaint; and copies of documents on which the applicant relies, and to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent. If he fails to comply with the duties which he has to perform as required by the proviso, he must take the risk. Non-compliance with such requisites on his part cannot be allowed to go without any consequence and to enable him to have only the advantage of it. The consequence of the party (who secured the order) for not complying with the duties he is required to perform is that he cannot be allowed to take advantage of such order if the order is not obeyed by the other party. A disobedient beneficiary of an order cannot be heard to complain against any disobedience alleged against another party.[69]

In Morgan Stanley v. Kartick Das[70], the Supreme Court indicated the factors which should weigh with a court in the grant of an ex parte injunction:

(i)      whether irreparable or serious mischief will ensue to the plaintiff;

(ii)     whether the refusal of ex parte injunction would involve greater injustice than grant of it would involve.

(iii)   the court will also consider the time at which the plaintiff first had notice of the act complained of so that the making of an improper order against a party in his absence is prevented;

(iv)    the court will consider whether the plaintiff had acquiesced for some time, and in such circumstances it will not grant ex parte injunction;

(v)     the court would expect a party applying for ex parte injunction to show utmost good faith in making the application;

(vi)    even if granted, the ex parte injunction would be for a limited period of time;

(vii)  general principles like prima facie case, balance of convenience and irreparable loss would also be considered by the court.

When the court purposes to grant ex parte injunction without issuing notice to the opposite party, proviso to Rule 3 enjoins the court to record reasons. The requirement of recording reasons is not a mere formality but a mandatory require­ment. Dealing with this aspect, in Shiv Kumar v. Municipal Corpn. of Delhi,[71] the Supreme Court stated: "[T]he requirement for recording the reasons for grant of ex parte injunction cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a light which such party claims to exercise either under a statute or under the common law, must be informed why, instead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without a !fording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and the court has to consider briefly these factors in the ex parte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non­compliance therewith will not vitiate the order so passed. But same cannot be said in respect of the proviso to Rule 3 of Order 39. Parliament has prescribed a particular procedure for passing of an order of injunction without notice to the other side, under exceptional circumstances. Such ex parte orders have far-reaching effect, as such a condition has been imposed that court must record reasons before passing such order. If it is held that the compliance with the proviso aforesaid is optional and not obligatory, then the introduction of the proviso by Parliament shall be a futile exercise and that part of Rule 3 will be a surplusage for all practical purposes. Proviso to Rule 3 of Order 39 of the Code attracts the principle that, if a statute equires a thing to be done in a particular manner, it should be done in that manner or not at all."

3A . Court to dispose of application for injunction within thirty days.— Where an injunction has been granted without giving notice to the opposite party, the Court shall make an endeavour to finally dispose of the application within thirty day from the date on which the injunction was granted; and where it is unable so to do, it shall record its reasons for such inability.

Rule 3-A does not say that the period of the injunction order should be restricted by the Court to thirty days at the first instance, but the Court should pass final order on it within thirty days from the day on which the injunction was granted. Hence, the order does not ipso facto become illegal merely because it was not restricted to a period of thirty days or less. Rule 3-A of Order 39 casts a three-pronged protection to the party against whom the ex parte injunction order was passed. First is that the Court is obliged to give him notice before passing the order. It is only by way of a very exceptional contingency that the Court is empowered to by-pass the said protective measure. Second is the statutory obligation cast on the Court to pass final orders on the application within the period of thirty days. Here also it is only in very exceptional cases that the Court can by-pass such a rule in which cases the Legislature mandates on the Court to have adequate reasons for such by-passing and to record those reasons in writing. If that hump is also by-passed by the Court it is difficult to hold that the party affected by the order should necessarily be the sole sufferer. In a case where the mandate of order 39, Rule 3-A of the Code is flouted, the aggrieved party, shall be entitled to the right of appeal notwithstanding the pendency of the application for grant or vacation of a temporary injunction, against the order remaining in force. In such appeal, if preferred, the appellate Court shall be obliged to entertain the appeal and further to take note of the omission of the subordinate Court in complying with the provisions of Rule 3-A. In appropriate cases the appellate Court, apart from granting or vacating or modifying the order of such injunction, may suggest suitable action against the erring judicial officer, including recommendation to take steps for making adverse entry in his ACRs. Failure to decide the application or vacate the ex parte temporary injunction shall, for the purposes of the appeal, be deemed to be the final order passed on the application for temporary injunction, on the date of expiry of thirty days mentioned in the Rule.[72]

4 . Order for injunction may be discharged, varied or set aside— Any order for an injunction may be discharged, or varied, or set aside by the Court, on application made thereto by any party dissatisfied with such order:

Provided that if in an application for temporary injunction or in any affidavit support such application a part has knowingly made a false or misleading statement in relation to a material particular and the injunction was granted without giving notice to the opposite party, the Court shall vacate the injunction unless, for reasons to be recorded, it considers that it is not necessary so to do in the interests of justice:

Provided further that where an order for injunction has been passed after giving to a party an opportunity of being heard, the order shall not be discharged, varied or set aside on the application of that party except where such discharge, variation or setting aside has been necessitated by a change in the circumstances, or unless the Court is satisfied that the order has caused under hardship to that party.]

Interim orders have no precedential value and an applicant cannot claim grant of Interim relief on the ground that in similar matters interim relief has been granted by die court.[73] Judicial comity, however, requires that in similar matters, similar interim orders should normally be made.[74]

Where a court grants interim injunction which results in injustice to the opposite party, it is not only the right but the duty of the court at the time of passing a final order to undo injustice and to restore the status quo ante.[75]

In C.I.T. v. Vinod Kumar[76], against the prohibitory orders, issued by the Income Tax Authorities, the petitioner filed a writ petition and obtained an ex parte interim order prohibiting the authorities from enforcing the orders. The petitioner then removed his goods under the ex parte order and withdrew the petition.

The first appellate court vacated the order of status quo. the appellate court lost sight of its duty, as a court, to ensure that the suit property is not frittered away or its nature altered to the detriment of the parties. In case respondents are allowed to sell the suit land or to raise construction, it would be necessarily cause irreparable loss, harm and damage to the petitioner. As a consequence, it would be appropriate that the order dated 9.08.2001, the Additional District Judge, Nawashahr, is set aside and during the pendency of the suit, the parties are directed to maintain status quo with respect to construction and possession.[77]

5 . Injunction to corporation binding on its officer— An injunction directed to a corporation is binding not only on the corporation itself, but also on all members and officers of the corporation whose personal action it seeks to restrain.     

 

INTERLOCUTORY ORDERS- ORDER 39

Interlocutory orders

Rules 6 to 10 of Order 39 provide for making certain interlocutory orders. The court has power to order sale of any movable property, which is the subject-matter of the suit or attached before judgment in such suit, which is subject to speedy and natural decay or for any just and sufficient cause desirable to be sold at once." It can also order for detention, preservation or inspection of any property which is the subject-matter of such suit, or as to which any question may arise therein. And for that purpose it can authorise any person to enter upon or into any land or building in the possession of any other party to such suit or authorise any samples to he taken or observation to be made or experiment to be tried for the purpose of obtaining full information." However, before making such orders the court shall give notice to the opposite party except where it appears that the object of making such orders would be defeated by the delay. Where the suit land is liable to payment of revenue

to government or a tenure liable to sale and the party in possession of such land or tenure neglects to pay revenue or rent, any other party to the suit claiming an interest in such land or tenure may, on payment of the revenue or rent due, be put in immediate possession of the property. The court may award in the decree the amount so paid with interest thereon against the defaulter. Where the subject-matter of a suit is money or some other thing capable of delivery and a party to a suit admits that he holds such money or thing as a trustee for another party or that it belongs or is due to that party, the court may order it to be deposited in court or delivered to that party with or without security.

6 . Power to order interim sale— The Court may, on the application of any party to a suit, order the sale, by any person named in such order, and in such manner and on such terms as it thinks fit, of any movable property being the subject-matter of such suit or attached before judgment in such suit, which is subject to speedy and natural decay, or which for any other just and sufficient cause it may be desirable to have sold at once.

7 . Detention, preservation, inspection, etc., of subject-matter of suit — (1) the Court may, on the application of any party to a suit, and on such terms as it thinks fit,—

(a) make an order for the detention, preservation or inspection of any property which is the subject-matter of such suit or, as to which any question may arise therein;

(b) for all or any of the purposes aforesaid authorize any person to enter upon or into any land or building in the possession of any other party to such suit; and

(c) for all or any of the purposes aforesaid authorize any samples to be taken, or any observation to be made or experiment to be tried, which may seem necessary or expendient for the purpose of obtaining full information or evidence.

(2) The provisions as to execution of process shall apply, mutatis mutandis, to person authorized to enter under this rule.

8 . Application for such orders to be after notice— (1) An application by the plaintiff for an order under rule 6 or rule may be made[393]****at any time after institution of the suit.

(2) An application by the defendant for a like order may be madeat any time after appearance.

 [(3) Before making an order under rule 6 or rule 7 on an application made for the purpose, the Court shall except where it appears that the object of making such order would be defeated by the delay, direct notice thereof to be given to the opposite party.]

9 . When party may be put in immediate possession of land the subject-matter of suit— Where land paying revenue to Government, or a tenure liable to sale, is the subject-matter of a suit, if the party in possession of such land or tenure neglects to pay the Government revenue, or the rent due to the proprietor of the tenure, as the case may be, and such land or tenure is consequently ordered to be sold, any other party to the suit claiming to have an interest in such land or tenure may, upon payment of the revenue or rent due previously to the sale (and with or without security at the discretion of the Court), be put in immediate possession of the land or tenure; and the Court in its decree may award against the defaulter the amount so paid, with interest thereon at such rate as the Court thinks fit, or may charge the amount so paid, with interest thereon at such rate as the Court orders, in any adjustment of accounts which may be directed in the decree passed in the suit.

10 . Deposit of money, etc. in Court— Where the subject-matter of a suit is money or some other thing capable of delivery and any party thereto admits that he holds such money or other thing as a trustee for another party, or that it belongs or is due to another party, the Court may order the same to be deposited in Court or delivered to such last-named party, with or without security, subject to the further direction of the Court.        

 

APPOINTMENT OF RECEIVERS-ORDER 40

ORDER XL- APPOINTMENT OF RECEIVERS

The term "receiver" has not been defined in the Code of Civil Procedure. According to Kerr, he is "an impartial person appointed by the court to collect and receive, pending the proceedings, the rents, issues and profits of land, or personal estate, which it does not seem reasonable to the court that either party should collect or receive, or for enabling the same to be distributed among the persons entitled". In other words, he is an indifferent person between the parties to a cause, appointed by the court to receive and preserve the property or fund in litigation pendente lite, when it does not seem reasonable to the court that either party should hold it."[78]

1 . Appointment of receivers— (1) Where it appears to the Court to be just and convenient, the Court may by order—

(a) appointment a receiver of any property, whether before or after decree;

(b) remove any person from the possession or custody of the property;

(c) commit the same to the possession, custody or management of the receiver; and

(d) confer upon the receiver all such powers, as to bringing and defending suits and for the realization, management, protection, preservation and improvement of the property, the collection of the rents and profits thereof, the application and disposal of such rents and profits, and the execution of documents as the owner himself has, or such those powers as the Court thinks fit.

(2) Nothing in this rule shall authorize the Court to remove from the possession or custody of property any person whom any party to the suit has not a present right so to remove.

The following principles must be borne in mind before a receiver is appointed by a court:[79]

(i)       The appointment of a receiver is a discretionary power of the court.

(ii)      It is a protective relief. The object is preservation of the property in dispute pending a judicial determination of the rights of the parties to it.

(iii)   A receiver should not be appointed unless the plaintiff prima facie proves that he has very excellent chance of succeeding in the suit.

(iv) It is one of the harshest remedies which the law provides for the enforcement of rights, and therefore, should not be lightly resorted to. Since it deprives the opposite party possession of property before a final judgment is pronounced, it should only be granted for the prevention of a manifest wrong or injury. A court will never appoint a receiver merely on the ground that it will do no harm.

(v)  Generally, an order appointing a receiver will not be made where it has the effect of depriving the defendant of a de facto possession, since that might cause irreparable loss to him. But if the property is shown to be in medio, that is to say, in enjoyment of no one, it will be in the common interest of all the parties to appoint a receiver.

(vi) The court should look at the conduct of the party who makes an application for appointment of a receiver. He must come with clean hands and should not have disentitled himself to this equitable relief by laches, delay or acquiescence.

In the case of Grant of probate in favour of sisters which was appeal against by brothers administrators-cum-joint receivers appointed pendente lite and  appeal was dismissed. Property no more remain custodia legis and joint receivers stand discharged and Property stood vested with sisters. Thus High Court had no jurisdiction to pass any order on subsequent application filed by parties in the matter.[80]

Suit for dissolution of firm and rendition of accounts. Firm constituted for putting up construction and to sell the constituted apartments .Plaintiff husband was only contributing the land and Funds for raising construction put in by other partners and builder. The Order appointing receiver and prohibiting sales completely was passed without considering serious difficulties and loss to which the firm and partners may be put into by freezing the day-to-day business activities of the firm and adverse impact on the credibility and reputation of firm, also not considered. Thus Order is improper. Moreover when arbitration clause existed in partnership agreement. Question of having recourse to Civil Court for adjudication of disputes envisaged to be resolved through arbitral process or getting any orders from the Civil Court for appointment of Receiver or prohibitory orders without evincing any intention to have recourse to arbitration in terms of the agreement may not arise.[81]

Power to appoint suo motu cannot be exercised by High Court particularly when none of the parties has asked for it. In our opinion, it was not open to the High Court in a writ petition against that order to appoint a Receiver in respect of the property in question under Order 40, Rule 1, C.P.C. particularly when none of the parties had asked for it. The power to appoint a Receiver suo motu cannot be exercised in the manner in which it was exercised by the High Court.[82]

Person in possession of property under agreement .Filing suit for perpetual injunction against interference with possession. Defendant in suit filing application for appointment of Receiver. It was rejected by High Court and court held that there should not be any interference. Plaintiff who holds possession under agreement is expected to act as a custodia legis pending the suit as Receiver on behalf of the Court.         [83]

Duration of neither appointment of receiver in suit .Neither S. 51 (d) nor Order 40 of the Code of Civil Procedure prescribes for the termination of the office of receivership. The law on the point may briefly, be stated thus : (1) If a receiver is appointed in a suit until judgment the appointment is brought to an end by the judgment in the action. (2) If a receiver is appointed in a suit, without his tenure being expressly defined, he will continue to be receiver till he is discharged. (3) But, after the final disposal of the suit as between the parties to the litigation, the receiver's functions are terminated, he would still be answerable to the court as its officer till he is finally discharged. (4) The court has ample power to continue the receiver even after the final decrees if the exigencies of the case so require. Held on facts that the Receivers continued by the preliminary decree are entitled to function in that capacity till they are discharged even though a final decree for the sale of the properties of the defendants was passed.[84]

Petitioner, filed a suit for dissolution/winding up of partnership firm, named M/s International Automobiles. The firm is a partnership concern constituted vide deed dated 10.6.1987. The suit was for rendition of the accounts of the firm and for permanent injunction restraining respondent, Krishan Kumar, himself or through his son for doing anything on behalf of the firm or for operating the bank accounts, alongwith an application under Order 40 Rule 1 CPC was also filed for appointment of a Receiver to take charge of the business. The submission that such an application for appointment of an Arbitrator would not lie before the Trial Court can also not be accepted in view of the provisions of Section 42 of the Act. There is, thus, no merit in both the revision petitions. The Appellate Court has exercised the jurisdiction in interfering with the order passed by the Trial Court on well considered reasons, which would not call for any interference in the exercise of revisional jurisdiction.[85]

2 . Remuneration— The Court may be general or special order fix the amount to be paid as remuneration for the services of the receiver.

 

3 . Duties— Every receiver so appointed shall—

(a) furnish such security (if any) as the Court thinks fit, duly to account for what he shall receive in respect of the property;

(b) submit his accounts at such periods and in such form as the Court directs;

(c) pay the amount due from him as the Court directs; and

(d) be responsible for any loss occasioned to the property by his wilful default or gross negligence.

A receiver has to furnish such security, as the court thinks fit, duly to account for what he shall receive in respect of the property. He has to submit accounts for such period and in such forms as the court directs. He has to pay the amount due from him as per the direction of the court." Being a representative of the court, he is bound to discharge his duties personally and cannot delegate or assign any of his rights or duties entrusted to him by the court.[86]

4 . Enforcement of receiver's duties— Where a receiver—

(a) fails to submit his accounts at such periods and in such form as the Court directs, or

(b) fails to pay the amount due from him as the Court directs, or

(c) occasions loss to the property by his wilful default or gross negligence,

the Court may direct his property to be attached and may sell such property, and may apply the proceeds to make good any amount

found to be due from his or any loss occasioned by him, and shall pay the balance (if any) to the receiver.

A receiver is bound to exercise the same'diligence in keeping down expenses and in caring for the estate in his possession as a prudent man would observe in connection with his own property under similar circumstances.[87]Thus, he is not responsible for sums actually received by him but also for all sums which he might have received but for his default or negligence. Where he fails to pay the amount ordered by the court, the court would be justified in directing the attachment and sale of his property. The court has also an inherent power to remove the receiver appointed by it, when he does not comply with the orders of the court or abuses his powers or authority.[88]

5 . When Collector may be appointed receiver— Where the property is land paying revenue to the Government, or land of which the revenue has been assigned or redeemed, and the Court considers that the interests of those concerned will be promoted by the management of the Collector, the Court may, with the consent of the Collector appoint him to be receiver of such property.

 

SECURITY FOR COSTS- ORDER 25

ORDER XXV-SECURITY FOR COSTS

1 . When security for costs may be required from plaintiff— (1) At any stage of a suit, the Court may, either of its own motion or on the application of any defendant, order the plaintiff, for reasons to be recorded to give with in the time fixed by it security for the payment of all costs incurred and likely to be incurred by any defendant:

Provided that such an order shall be made in all cases in which it appears to the Court that a sole plaintiff is, or (when there are more plaintiffs than one) that all the plaintiff are, residing out of India and that such plaintiff does not possess or that no one of such plaintiffs possesses any sufficient immovable property with India other than the property in suit.

(2) Whoever leaves India under such circumstances as to afford reasonable probability that he will not be forthcoming whenever he may be called upon to pay costs shall be deemed to be residing out of India within the meaning of the proviso to sub-rule (1).

It states that the court may, at any stage of the suit, order the plaintiff to give security for the payment of the costs of the defendant. This is at the discretion of the court.[89] In the following circumstances, however, the court shall make such order:

(i)    where the plaintiff resides outside India or where there are two or more plaintiffs and all of them reside outside India; and

(ii)   where the sole plaintiff or none of the plaintiffs has sufficient immovable property within India other than the suit property.

The object of the rule is to provide for the protection of the defendants in certain cases where, in the event of success, they may have difficulty in realizing their costs from the plaintiff. It is a discretionary power which can be exercised only in exceptional circumstances, where it is shown that the exercise of power is necessary for the reasonable protection of the interests of the defendant.[90]

2 . Effect of failure to furnish security— (1) In the event of such security not being furnished within the time fixed, the Court shall make an order dismissing the suit unless the plaintiff or plaintiffs are permitted to withdraw therefrom.

(2) Where a suit is dismissed under this rule, the plaintiff may apply for an order to set the dismissal aside and, if it is proved to the satisfaction of the Court that he was prevented by any sufficient cause from furnishing the security within the time allowed, the Court shall set aside the dismissal upon such terms as to security, costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.

(3) The dismissal shall not be set aside unless notice of such application has been served on the defendant.     

Payment in court-ORDER 24

ORDER XXIV- PAYMENT INTO COURT

1 . Deposit by defendant of amount in satisfaction of claim— The defendant in any suit to recover a debt or damage may, at any stage of the suit, deposit in Court such sum of money as he considers a satisfaction in full of the claim.

2 . Notice of deposit— Notice of the deposit shall be given through the Court by the defendant to the plaintiff, and the amount of the deposit shall (unless the Court otherwise directs) be paid to the plaintiff on his application.

3 . Interest on deposit not allowed to plaintiff after notice— No interest shall be allowed to the plaintiff on any sum deposited by the defendant from the date of the receipt of such notice, whether the sum deposited is in full of the claim or falls short thereof.

4 . Procedure where plaintiff accepts deposit as satisfaction in part— (1) Where the plaintiff accepts such amount as satisfaction in part only of his claim he may prosecute suit for the balance; and, if the Court decides that the deposit by the defendant was a full satisfaction of the plaintiff's claim, the plaintiff shall pay the costs of the suit incurred after the deposit and the costs incurred previous thereto, so far as they were caused by excess in the plaintiff's claim.

(2) Procedure where he accepts it as satisfaction in full—Where the plaintiff accepts such amount as satisfaction in full of his claim he shall present to the Court a statement to that effect, and such statement shall be filed and the Court shall pronounce judgment accordingly; and, in directing by whom the costs of each party are to be paid, the Court shall consider which of the parties is most to blame for the litigation.

Illustrations

(a) A owes B Rs. 100. B sues A for the amount, having made no demand for payment, and having no reason to believe that the delay caused by making a demand would place him at a disadvantage. On the plaint being filed. A pays the money into Court, B accepts it in full satisfaction of his claim, but the Court should not allow him any costs, the litigation being presumably groundless on his part.

(b) B sues A under the circumstance mentioned in illustration (a). On the plaint being filed, A disputes the claim. Afterwards A pays the money into Court. B accepts it in full satisfaction of his claim. The Court should also give B his cast of suit. A's conduct having shown that the litigation was necessary.

(c) A owes B Rs. 100, and is willing to pay him that sum without suit. B claims Rs. 150 and sues A for that amount. On the plaint being filed, A pays Rs. 100 into Court and disputes only his liability to pay the remaining Rs. 50. B accepts the Rs. 100 in full satisfaction of his claim. The Court should order him to pay A's costs.     

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