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INTERIM ORDERS

QUESTION BANK

1. Explain fully interim orders and their importance in Civil Procedure Code.

2. Explain the provisions regarding ‘temporary injunction’.

3. Explain the provisions regarding ‘attachment before judgment.

4. State and explain provisions regarding the temporary and perpetual injunction.

SHORT NOTES

1) Court Commission.

2) Interim order.

3) Adjournments.

4) Receiver.

5) Attachment before judgment.

6) Injunction.

7) Interest and costs.

SYNOPSIS

I. INTERIM ORDERS MEANING-

II. INTERIM ORDERS UNDER C.P.C.-

A) ORDER TO ISSUE COMMISSION (O. XXVI)-

1) General-

2) Purposes for which commission can be issued (S. 75)-

a) To examine witnesses (S. 76 to 78, O. XXVI. R. 1 to 8)-

b) To make local investigation (R. 9 and 10)-

c) To hold scientific investigation (R. 10 A)-

d) To perform a ministerial act (R. 10 B)-

e) To sell the property (R. 10 C)-

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f) To adjust accounts (R. 11 and 12)-

g) To make a partition (R. 13 and 14)-

3) Powers of Commission (R. 16 to 18)-

4) Expenses (R. 15)-

5) Commission issued for foreign Tribunals (R. 19 to 22)-

B) ARREST BEFORE JUDGMENT (O. XXXVIII, R. 1 TO 4).

1) General-

2) Grounds of arrest (R. 1)-

3) Security (R. 2 to 4)-

4) Compensation for obtaining arrest on insufficient grounds (S. 95)-

C) ATTACHMENT BEFORE JUDGMENT (O. XXXVIII R. 5 TO 12).

1) General-

2) Grounds (R. 5)-

3) Modes of effecting attachment (R. 7)-

4) Adjudication of claims (R. 8)-

5) Removal of attachment (R. 9)-

6) Re-attachment of property (R. 11)-

7) Compensation for obtaining attachment on insufficient grounds (S. 95)-

D) TEMPORARY INJUNCTIONS (O. XXXIX RR. 1 TO 5)

I.

INJUNCTION.

II.

III.

PREVENTIVE RELIEF.

THE INJUNCTIONS ARE OF TWO KINDS.

1.

2.

Temporary Injunction.

Perpetual Injunction.

Difference between Temporary and Perpetual injunctions.

a)

b)

c)

d)

When Passed?

How long does it continues?

Purpose of granting-

Legal Provision-

IV)

TEMPORARY INJUNCTION WHEN GRANTED (O. XXIX, R. 1).

V. CONDITIONS FOR GRANT OF INJUNCTION-

1) Prima facie case must be made out-

2) Irreparable loss or damage to the applicant-

3) Balance of convenience-

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VI. NOTICE (R.3)-

VII. BREACH OF INJUNCTION (R. 2 A& S. 94 (C))-

VIII. COMPENSATION FOR OBTAINING INJUNCTION ON INSUFFICIENT

GROUNDS (S. 95)-

E) INTERLOCUTORY ORDERS (O. XXXIX, R. 6 TO 10)

1) Order interim sale (R. 6)-

2) Detention preservation, inspection etc (R. 7)-

3) Immediate possession of land (R. 9)-

4) Deposit of money, etc, in Court (R. 10)-

F) APPOINTMENT OF RECEIVER (O. XL)

1) Meaning of the term ‘Receiver’-

2) Appointment (R. 1)-

Appointment of ‘Collector’ as a receiver (R. 5)-

3) Powers of the Receiver (R. 1 (d)-

4) Duties of Receiver (R. 3 & 4)-

G) SECURITY FOR COSTS (O. 25)

1) Security for costs (R. 1)-

2) Effect of failure (R. 2)-

H) PAYMENT INTO COURT (O. XXIV)-

I) PROVISIONS AS TO INTEREST (S. 34)-

1) Court may award interest in three stages, viz-

(i) Interest prior to the filing of suit-

(ii) Interest pending suit (pendent elite)-

(iii) Interest till realization of amount-

2) Decree silent as to interest-

3) Interest in a mortgage suit (O. 34 R. 11)-

J) PROVISIONS AS TO COSTS.

1) General costs (S. 35)-

2) Miscellaneous costs (O. 20-A)-

3) Compensatory costs (S. 35 A)-

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4) Costs for causing delay (S. 35-B)-

I. INTERIM ORDERS MEANING-

The dictionary meaning of the term ‘interim’ means ‘in between, ‘for the time

being, ‘meanwhile’, ‘temporary’, ‘not final’ or ‘provisional’. In respect of the suit,

‘interim’ or ‘interlocutory’ orders mean those orders passed by the Court during the

pendency of the suit or proceeding. These orders do not determine the substantive rights

and liabilities of the parties in respect of the subject matter of the suit finally but are

necessary for its protection.

In other words, after the institution of the suit and before its final disposition,

the court makes different orders, which are called interim orders. Such interim orders are

passed to assist the parties to the suit in prosecuting their cases or to protect the subject

matter of the suit. Therefore, interim or interlocutory orders are very important until the

final disposition of the suit.

II. INTERIM ORDERS UNDER C.P.C.-

There are the following types of interim orders under the Civil Procedure

Code-

A) ORDER TO ISSUE COMMISSION (O. XXVI)-

1) General-

The dictionary meaning of the word ‘Commission’ is ‘an authority (to any

person) to act on behalf of another (i.e., court)’ or ‘an authorisation to perform certain

duties or tasks, or to take on certain powers’. In legal parlance, ‘Commission’ is a process

through which the witnesses who are sick or infirm and are unable to attend the Court, are

examined by issuing a Commission by the Court’. Generally, a ‘Commissioner’ may be an

advocate or expert in a particular field, like an auditor, valuator, Engineer etc. It is the duty

of the Commissioner to interrogate the witness and collect the evidence, requisite material

and information from the witness in order to assist the Court in deciding the case. Ss. 75

to 78 and O. XXVI of the Code deal with the various provisions relating to the issue of the

Commission. The power to issue a commission is discretionary and cannot be claimed as

right. The Court can exercise the power of issue of commission on its own or the

application of either party to the suit.

2) Purposes for which commission can be issued (S. 75)-

S. 75 provides that the Court may issue a commission for the following-

a) To examine witnesses (S. 76 to 78, O. XXVI. R. 1 to 8)-

b) To make a local investigation (R. 9 and 10)-

c) To hold a scientific investigation (R. 10 A)-

d) To perform a ministerial act (R. 10 B)-

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e) To sell the property (R. 10 C)-

f) To adjust accounts (R. 11 and 12)-

g) To make a partition (R. 13 and 14)-

We will discuss them one by one-

a) To examine witnesses (S. 76 to 78, O. XXVI. R. 1 to 8)-

It is the general rule that evidence of the witness is to be taken before the

Court. However, in certain exceptional circumstances, it can be recorded through the issue

of commission.

The court may issue a commission for the examination of any witness in the following

circumstances-

i) if the witness is exempted from attending the Court or is seriously ill or infirm (R. 1).

ii) In the interest of justice, for the expeditious disposal of the case or for any other reason

which the Court thinks fit (R. 4 A).

iii) if the witness resides beyond the local limits of the jurisdiction of the Court (R. 4) or

iv) if the witness is about to leave the jurisdiction of the Court (R. 4).

iv) if the witness is a government servant and who cannot, in the opinion of the Court,

attend the Court without detriment to the public service (R. 4).

v) if the witness is residing out of India.

The Commissioner, as per order, shall execute the commission, return it with

the evidence taken under it, and submit it to the Court ordering the commission (R. 7). The

recorded deposition cannot be read in evidence directly unless the other party consents or

the court dispenses with such consent (R. 8).

b) To make local investigation (R. 9 and 10)-

In any suit where the Court thinks it necessary to conduct a local investigation,

it may issue a commission to such person as it thinks fit, directing him to collect material

information to elucidate any matter in controversy or ascertaining the market value of any

property, or the amount of any mesne profit or damages or annual net profit.

However, if the State Government has made rules as to the persons to whom such

commission shall be an issue, the Court shall be bound by such rules.

The purpose of the local investigation is to make spot investigations, e.g., to

investigate what is written on the wall or on the stone lying on any fort, the situation of

houses, the position of the existing road, measurement of encroachment, the stage of

construction, etc.

c) To hold scientific investigation (R. 10 A)-

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

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Court issues a commission to such person as it thinks fit, directing him to inquire into such

question and report thereon to the Court. For example, a Certified Valuation Expert is to

be appointed to determine the value of premises; an Engineer may be appointed to decide

the quality of construction, etc.

However, if 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.

d) To perform a ministerial act (R. 10 B)-

The dictionary meaning of the term ‘Ministerial act’ is ‘the act having the nature of

or characteristic of the administrative functions of the Government or executive’, or ‘an

administrative act carried out in a prescribed manner not allowing personal discretion. In

other words, a ‘Ministerial act’ is an act that is not judicial work but administrative work

like accounting, calculation, etc., which requires no discretion. 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, it may, if, for reasons to be

recorded, is of the 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 submit his report to the Court.

However, if the State Government has made rules regarding the persons to whom

such commission shall be issued, the Court shall be bound by such rules.

e) To sell the property (R. 10 C)-

In any suit, where it is necessary to sell any movable property which cannot be

preserved for long and is in the custody of the Court pending determination of the suit, the

Court may, if, for reasons to be recorded in writing, thinks fit in the interests of justice,

issue a Commission to such person as it thinks fit, directing him to carry out the sale and

submit his report to the Court. The sale should be held, as far as possible, in accordance

with the procedure prescribed for the sale of movable property in the execution of a decree.

f) To adjust accounts (R. 11 and 12)-

In a suit in which examination of accounts or adjustment of accounts is required, the

Court may issue a commission directing the Commissioner as it thinks fit to make the

requisite examination or adjustment. The report of the Commissioner is to be considered

as evidence in the suit.

g) To make a partition (R. 13 and 14)-

Where a decree for the partition of immovable property has been passed, the

Court, in order to effect the partition or separation in terms of the decree, may issue a

Commission for such partition.

After such investigation as may be essential, the Commissioner divides the

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property in question into various shareholders and allows them a portion of their shares.

After the completion of the partition work, the Commissioner will prepare the report,

allotting each shareholder's share and demarcating the same by boundaries, and submit it

to the Court. After hearing objections, if any, the Court shall order the final allotment of

the portion of the property to each shareholder.

3) Powers of Commission (R. 16 to 18)-

The Commissioner may-

(a) summon and procure the attendance of the parties and examine the parties and

witnesses;

(b) call for and examine documents;

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

and

(d) Proceed ex-parte if the parties do not appear before him in spite of the order of the

Court.

4) Expenses (R. 15)-

The Court may order the party, at whose instance the Commission is issued,

to pay reasonable expenses of the Commission to be deposited in the Court within the fixed

time as the Court thinks proper.

5) Commission issued for foreign Tribunals (R. 19 to 22)-

Suppose the High Court is satisfied that a foreign Court wishes to obtain

evidence of a witness in a proceeding of a civil nature and that the witness is residing within

the limits of the High Court’s appellant jurisdiction. In that case, it may issue a commission

for the examination of such a witness (R. 19). Rules 20 to 22 prescribe the procedure to

conduct such a commission.

Similarly, S. 77 provides that an Indian Court can issue a letter of request to a

foreign Court to examine a witness residing within its local limits.

B) ARREST BEFORE JUDGMENT (O. XXXVIII, R. 1 TO 4).

1) General-

Generally, the creditor, who has obtained a decree against the debtor, can

attempt (i) to get the debtor arrested and also (ii) to ask for the attachment of the property

of the debtor in case of non-execution of the decree or even before judgment. The purpose

of these provisions is to ensure that the plaintiff should not suffer by absconding the

defendant and that the amount for the decree is to be released in case of the decree in his

favour.

2) Grounds of arrest (R. 1)-

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Where at any stage of the suit (other than a suit of the nature referred to S. 16),

the Court is satisfied, by affidavit or otherwise, 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, or (iii) has disposed of or removed from the local limits of the

jurisdiction of the Court his property or any part of it, or that the defendant is about to leave

India under the circumstances affording reasonable probability that the plaintiff will or may

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.

However, 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.

3) Security (R. 2 to 4)-

Where the defendant fails to show such cause, the Court shall order him either

to deposit in the Court money or other property sufficient to answer the claim against him

or to furnish security for his appearance at any time when called upon while the suit is

pending and still the satisfaction of any decree that may be passed against him in the suit.

However, every surety for a defendant's appearance shall bind himself, in

default of such appearance, to pay any sum that the defendant may be ordered to pay in the

suit (R. 2).

Where the defendant fails to furnish security or to find fresh security after the

original surety has been discharged from his obligation by the Court, the Court may commit

him to civil prison until the decision of the suit, or, where a decree is passed against him,

until the decree has been executed(R. 1).

4) Compensation for obtaining arrest on insufficient grounds (S. 95)-

Where in any suit in which an arrest has been effected on insufficient grounds,

or the suit of the plaintiff fails. It appears to the Court that there were 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 expenses or injury caused to him.

C) ATTACHMENT BEFORE JUDGMENT (O. XXXVIII R. 5 TO 12).

1) General-

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‘Attachment before judgment’, like ‘arrest before judgment’, is an important

remedy available to the plaintiff. The provision of attachment before judgment is made

with the object of realising the decree that may be passed against the defendant.

2) Grounds (R. 5)-

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 (i) furnish security of such sum as may be specified in the order or (ii) to appear

and show cause why he should not furnish security.

The plaintiff has to specify the property required to be attached and its

estimated value (R. 6). The Court may order conditional attachment of the whole or any

portion of the property.

However, the small cause Court has no power of attachment before judgment

(R. 13).

3) Modes of effecting attachment (R. 7)-

The attachment shall be made in the manner and as provided for the attachment

of the property in the execution of a decree (as mentioned under O. XXI).

4) Adjudication of claims (R. 8)-

Where any claim is preferred to the property attached before judgment, it has

to be adjudicated upon in the manner and as provided for adjudication of claims to property

attached in execution of a decree for payment of money.

An attachment before judgment does not affect the rights of a third party (R. 10).

5) Removal of attachment (R. 9)-

Where an order is made for attachment before judgment, the Court must order

the attachment to be withdrawn when the defendant furnishes the required security,

together with security for the cost of the attachment, or when the suit is dismissed.

6) Re-attachment of property (R. 11)-

Where a property is under attachment on the court’s order and a decree is

subsequently passed in favour of the plaintiff, he is not required to apply for a re-attachment

of the property.

R. 11 A. lays down that the provisions of O. XXI applicable to an attachment

in ‘execution or a decree’ are also applicable to this topic of ‘attachment before judgment.

7) Compensation for obtaining attachment on insufficient grounds (S. 95)-

Where, in any suit in which an attachment has been effected on insufficient

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grounds, or the suit of the plaintiff fails. It appears to the Court that there were no

reasonable or probable grounds for instituting the same; the defendant may apply to the

Court. The Court may award against the plaintiff by its order such amount, not exceeding

fifty thousand rupees, as it deems a reasonable compensation to the defendant.

D) TEMPORARY INJUNCTIONS (O. XXXIX RR. 1 TO 5)

I.

INJUNCTION.

‘Halsbury’ defines an injunction as a judicial process whereby a party is

ordered-

i) to refrain from doing or,

ii) to do (a particular act or thing).

It is thus the order of the Court whereby it restrains-

i) the commission or

ii) continuance of some wrongful omission.

In the former case, the injunction is called a prohibitory or restrictive injunction;

in the latter, it is mandatory. The former, i.e. prohibitory injunction, is more common than

the latter, i.e. mandatory.

II.

PREVENTIVE RELIEF.

Specific relief afforded by means of injunction is called Preventive relief. It

is based on the maxim “prevention is better than cure”. An injunction is a form of specific

relief that the Court grants when pecuniary compensation would be inadequate or

altogether futile.

The object of granting an injunction is to restrain the commission of an act

to prevent future or threatening injuries.

This preventive relief is granted by injunction, temporary or perpetual (S.

36), at the discretion of the court.

III.

INJUNCTIONS ARE OF TWO KINDS.

There are two types of injunctions. Viz.

Temporary injunction or interim injunction.

Perpetual injunction or permanent injunction.

These injunctions may be Prohibitory or mandatory in nature.

Injunctions.

1.

2.

Temporary or Interim

Perpetual or Permanent

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Prohibitory

1. Temporary Injunction.

A temporary Injunction is also called an interim injunction. A temporary

Mandatory

Prohibitory

injunction is that which remains in force until a specified time [i.e. for ten days etc.] or

until further order of the Court (S. 37). Such injunctions can be granted at any stage of the

suit and are governed by Order 39 of the Code of Civil Procedure 1908 and not by the

Specific Relief Act. The object of the temporary injunction is to maintain the status quo

(i.e. the position to keep the property as it is).

2.

Perpetual Injunction.

‘Perpetual Injunction’ is also called a ‘permanent injunction’. A perpetual

injunction is permanent in nature and is provided from S. 36 to 44 of the Specific Relief

Act. The perpetual injunction is contained in the decree passed by the Court after the full

hearing of the merits of the case. The object of the perpetual injunction is to restore the

property to its former state (i.e., as it was before).

Difference between Temporary and Perpetual injunctions.

a)

When Passed?

A Temporary injunction is passed by the order during the pendency of a suit.

A Perpetual injunction can be granted only by the decree made at the

hearing and upon the merits of the case.

b)

How long does it continue?

A Temporary injunction continues only until a specified time or until further order of

the Court.

A perpetual injunction finally settles the mutual rights of the parties and directs

a party for all time to do or abstain from doing something.

c)

Purpose of granting-

The effect and object of a Temporary injunction are to preserve the property in dispute

in status quo; it does not conclude a right.

The effect and object of a Perpetual injunction is to give effect to and protect

the Plaintiffs right finally (i.e. to restore the property in an earlier state)

d)

Legal Provision-

Temporary injunctions are regulated by Order 39 (XXXIX) of the Code of Civil

Procedure 1908.

Perpetual Injunctions are regulated by S. 38 to 42 of the Specific Relief Act.

IV)

TEMPORARY INJUNCTION WHEN GRANTED (O. XXIX, R. 1).

A temporary injunction may be granted by a Court in the following cases-

1) Where any property in disputed suit is in danger of being wasted, damaged or alienated

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by any party to the suit or wrongfully sold in execution of a decree. Or

2) Where the defendant threatens or intends to remove or dispose of his property with a

view to defrauding his creditors or

3) Where the defendant threatens to dispossess the plaintiff or otherwise cause injury to the

plaintiff in relation to any property in dispute in the suit or

4) Where a defendant is about to commit (i) a breach of a contract, or (ii) injury of any

other kind (R. 2). Or

5) Where a Court is of the opinion that in the interest of justice so requires (R. S. 94 &

151).

Any party to the suit, whether the plaintiff or the defendant, may pray for a

temporary injunction (Here, the word ‘plaintiff’ also includes the word ‘defendant’) if there

is a danger of alienation or waste to the property.

Any order for an injunction may be discharged, varied, or set aside by the Court on

an application made thereto by any party dissatisfied with such order (R. 4).

V. CONDITIONS FOR GRANT OF INJUNCTION-

The power to grant an injunction is at the discretion of the Court. However,

such discretion is to be exercised with caution. If it is not cautiously exercised on sound

judicial principles, it may adversely affect the other party. Therefore, the Court takes into

consideration the following principles while granting an injunction-

1) Prima facie case must be made out-

The plaintiff must show that he has a prima facie case. The case of the plaintiff

must be strong enough so that prima facie, the Court may come to the conclusion that the

plaintiff will be able to prove his case on merits before the Court. The burden is on the

plaintiff to satisfy the Court that he has the legal right and prima facie case is in his favour.

However, the Court is not expected to examine the case's merit closely when deciding the

application for temporary injunction. The Court takes into consideration the plaintiff’s case

(as revealed from the plant), affidavits, and other material produced by the plaintiff while

deciding such application. For example, if the plaintiff files a suit before the Court for

partition and separate possession of ancestral property against his brother and also applies

for a temporary injunction against the brother for not to alienate property; the Court will

take into consideration the relationship between parties, 7/12 extracts of the property, non-

existence of earlier partition and an attempt of sale (notice etc.) if the defendant is trying

to sell any part of the property etc., and grant injunction accordingly.

2) Irreparable loss or damage to the applicant-

In addition to the first condition, the plaintiff must prove the second condition

that he will suffer irreparable loss if a temporary injunction is not granted in his favour. In

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other words, the Court must be satisfied that refusal to grant an injunction would result in

‘irreparable loss to the plaintiff, and he, therefore, needs to be protected from the

consequences of apprehended loss. The loss is called ‘irreparable’, where no pecuniary

standard exists for measuring damages. Thus, if in a suit for partition, Karta (Manager)

may be restrained by injunction not to sell ‘joint Hindu family property so as to avoid an

irreparable loss to other’s shares; similarly, in a suit against encroachment, the defendant

may be restrained by the injunction to stop construction to avoid an irreparable loss to the

plaintiff. Similarly, a temporary injunction may be granted against the disposal of goods,

effecting recovery of debts, attachment of property, the appointment of receiver or

commission, etc.

3) Balance of convenience-

The third condition is that the ‘balance of convenience should be in favour of

the plaintiff. Balance of convenience means that the Court has to satisfy itself that in case

of refusal to grant an injunction, the injury, inconvenience or hardship that the plaintiff will

suffer may be higher than the defendant.

Along with the above factors, the Court may consider some other relevant

factors while granting or rejecting injunctions, such as delay, latches, acquiescence,

whether the plaintiff has come with clean hands without suppressing facts, or the adequacy

of monitory relief instead of injunction, etc.

An injunction directed to a corporation is binding not only on the corporation

itself but also on all members and officers whose personal action it seeks to restrain (R. 5).

VI. NOTICE (R.3)-

R. 3 provides that the Court shall give notice to the opposite party before

granting an injunction. Where it is proposed to grant an injunction without giving notice to

the opposite party, the Court shall record reasons for its opinion that the object of granting

the injunction would be defeated by delay. When the order of injunction is granted without

giving notice, the Court shall order the applicant to send a copy of the application and other

documents immediately to the opposite party. In such a case, the Court shall make an

endeavour to finally dispose of the application within thirty days from the date on which

the injunction was granted; and where it is unable to do so, it shall record its reasons for

such inability (R. 3-A).

VII. BREACH OF INJUNCTION (R. 2 A& S. 94 (C))-

In case of disobedience of the temporary injunction order, the Court may order

the property of the person to be attached and may also order such person to be detained in

the civil prison for a term not exceeding three months. However, the Court may in the

meantime, direct his release.

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VIII. COMPENSATION FOR OBTAINING INJUNCTION ON INSUFFICIENT

GROUNDS (S. 95)-

Where, in any suit in which a temporary injunction is effected on insufficient

grounds, or the suit of the plaintiff fails. It appears to the Court that there were no

reasonable or probable grounds for instituting the same; the defendant may apply to the

Court. The Court may award against the plaintiff by its order such amount, not exceeding

fifty thousand rupees, as it deems a reasonable compensation to the defendant.

E) INTERLOCUTORY ORDERS (O. XXXIX, R. 6 TO 10)

Interlocutory orders are those orders passed by a Court during the pendency

of a suit which does not determine the substantive rights of the parties in respect of the

subject matter of the suit or terminate the suit but relate to the protection or otherwise of

the subject matter of the suit.

The following are some of the interlocutory orders mentioned in R. 6 to 10. Viz.

1) Order of interim sale (R. 6)-

R. 6 provides that 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, to which for

any other just and sufficient cause it may be desirable to have sold at once.

2) Detention, preservation, inspection etc. (R. 7)-

On the application of any party, the Court can 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. For that purpose, it can authorise any person to enter upon or into any

land or building in possession of any other party to such suit or authorise any samples to

be taken, observation to be made, or experiment to be tried for the purpose of obtaining

full information.

Orders as mentioned under R. 6 and 7, can be made at any time after the

institution of the suit. However, before making such an order, the Court shall give notice

to the opposite party, but the Court can make such an order without giving notice if it

appears to it that the object of making such an order would be defeated by delay (R. 8).

3) Immediate possession of land (R. 9)-

Where the suit land is liable for payment of revenue to the 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 land. The

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Court may award in the decree the amount so paid with interest thereon against the

defaulter.

4) Deposit of money, etc., in Court (R. 10)-

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 the Court or delivered to that party with or without security.

F) APPOINTMENT OF RECEIVER (O. XL)

(Henceforth, Orders are mentioned in numbers like O. 40 instead of writing it

in Roman-like O. XL).

1) Meaning of the term ‘Receiver’-

The term ‘receiver’ means ‘the person who receives. In legal parlance

Receiver is ‘an officer of the Court appointed to collect rents, profits of the land, etc. of the

property pending a suit.’.

2) Appointment (R. 1)-

Where it appears to the Court to be just and convenient, the Court may, by

order, appoint a receiver of any property before or after the decree. It can remove any

person from the possession of the property and commit the same to the possession, custody,

or management of the receiver. However, the Court cannot remove from the possession or

custody of property any person whom any party to the suit has no right to remove.

The appointment of the receiver is at the discretion of the Court. However,

such discretion is to be exercised justly, reasonably and properly.

The main object of the appointment of the receiver is to preserve the subject

matter of the litigation pending a judicial determination of the rights of the parties thereto.

In other words, he is appointed for the protection of the rights of the parties or for the

prevention of injury to the property.

Appointment of ‘Collector’ as a receiver (R. 5)-

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 the receiver of such property.

3) Powers of the Receiver (R. 1 (d)-

The receiver is an officer of the Court. Therefore, he functions under the

court’s direction. The court, therefore, confers upon him all such powers-

(i) to file and defend suits, and

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(ii) to realise, manage, protect, preserve and improve the property,

(iii) to collect, apply and dispose of rents and profits,

(iv) to execute documents as if an owner,

(v) such other powers as Court thinks fit.

4) Duties of the Receiver (R. 3 & 4)-

Every receiver shall-

(i) furnish such security as the Court thinks fit,

(ii) submit his account extract of such periods and in such form, as the Court directs;

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

(iv) be responsible for any loss occasioned to the property by his willful default or gross

negligence.

On failure to perform the above-mentioned functions, 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 him (R. 4).

G) SECURITY FOR COSTS (O. 25)

1) Security for costs (R. 1)-

R. 1 provides 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 in the following circumstances

(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 have sufficient immovable property

within India other than the suit property.

This provision protects the defendant's interest in getting costs paid; however,

the remedy is discretionary.

2) Effect of failure (R. 2)-

The suit shall be dismissed if no security as mentioned above is furnished.

H) PAYMENT INTO COURT (O. XXIV)-

The defendant in any suit to recover a debt or damages may, at any stage of

the suit, deposit in the Court such sum of money as he considers for satisfaction in full of

the claim (R. 1). Notice of such deposit shall be given to the plaintiff and on his application,

the amount deposited may be paid to him (R. 2). No interest on the sum so deposited shall

be allowed by the Court (R. 3). If the plaintiff accepts such sum as payment in full

satisfaction of his claim, the Court shall record his statement to that effect and pronounce

the judgment accordingly. However, where that plaintiff accepts such amount as

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satisfaction in part only of his claim, he may prosecute his suit for the balance; and, if the

Court decides that the deposit by the defendant was a full satisfaction of the suit, the

plaintiff shall pay the costs of the suit incurred after the deposit (R. 4).

I. PROVISIONS AS TO INTEREST (S. 34)-

S. 34 deals with interest in a suit for a decree for payment of money. The

Court is empowered to award interest on the principal sum adjudged at a reasonable and

appropriate rate. However, this section does not apply to the enforcement of the decree of

the mortgage.

1) The court may award interest in three stages, viz-

(i) Interest prior to the filing of suit-

Interest prior to suit is a matter of substantive law and does not fall within S.

34 of the Code. Interest, prior to suit, is usually awarded when there exists an agreement

between the parties, there is a mercantile usage, or there is a statutory provision; it may be

awarded by way of damages.

(ii) Interest pending suit (pendent elite)-

Under S. 34, the Court can award interest from the date of the filing of the suit

till the date of the decree. However, awarding such interest is at the discretion of the Court.

Generally, such a rate of interest is 6 % per annum. Where the transaction is a ‘commercial

transaction’, the rate of interest would be that on which money is lent or advanced by

nationalized banks in relation to the commercial transaction.

(iii) Interest till realisation of amount-

Under S. 34 Court can award interest from the date of the decree till the date

of the payment of the amount. However, awarding such interest is also at the discretion of

the Court.

2) Decree silent as to interest-

Where the decree does not provide for interest, it will be deemed to have been

refused.

3) Interest in a mortgage suit (O. 34 R. 11)-

It lays down that interest can be awarded in a mortgage suit.

J) PROVISIONS AS TO COSTS.

S. 35 empowers the Court to award costs of and incidental to all suits.

However, it is at the discretion of the Court to award such costs. It is also in the discretion

of the Court to decide as to whom or out of what property and to what extent such costs

are to be paid.

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The object of the section in awarding costs to a litigant is to secure to him the

expenses incurred by him in litigation.

Kinds of costs-

There are the following kinds of costs, viz.

1) General costs (S. 35)-

S. 35 as discussed above, deals with the general costs. The object of awarding

general costs is to secure the expenses incurred by the party in the litigation. The object of

awarding general costs is neither to give any profit (to awarded party) nor to punish another

party.

2) Miscellaneous costs (O. 20-A)-

It empowers the Court to award costs relating to giving notice, typing charges,

inspection of records of the Court, producing witnesses and obtaining copies of judgments

and decrees etc.

Such costs are to be awarded according to the rules framed by the High Court.

3) Compensatory costs (S. 35 A)-

If the Court thinks that the litigation or defence was false or vexatious, it may

award compensatory costs. The maximum amount that can be awarded by the Court is Rs.

3000, and is also liable for any criminal liability. ‘Compensatory cost’ is somehow penal

in nature.

The amount of any compensation awarded under this section in respect of a

false or vexatious claim or defence shall be taken into account in any subsequent suit or

damages or compensation in respect of such claim or defence.

An order awarding compensation is appealable. However, no appeal lies

against an order refusing costs.

4) Costs for causing delay (S. 35-B)-

S. 35- B makes provision for imposing a cost on the party adopting delaying

tactics. It lays down that if on a date fixed for the hearing of a suit or for taking any step, a

party to the suit does not take those steps or ask for an adjournment for leading evidence,

the Court may, for reasons to be recorded, make an order for costs. The amount of such

cost is within the discretion of the Court.

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