CODE OF CIVIL PROCEDURE – II

MODULE 2 – INTERLOCUTORY ORDERS

ADHEENA BIJU, Guest Faculty, GLCK

MEANING OF INTERIM / INTERLOCUTORY ORDERS

 Means provisional, temporary, for the time being etc.

 Interim/interlocutory orders are those passed by a Court during the pendency of a
suit or proceeding which do not finally determine the substantive rights and
liabilities of the parties in respect of the subject matter.
 Interim orders are necessary to deal with and protect rights of the parties in the
interval between the commencement of the proceedings and final adjudication.
 They enable the Court to equitable and judiciously navigate the litigation process
and also prevents abuse of process during the pendency of proceedings.
SECTION ORDER

Ss. 75,76,77,78 O. 26 COMMISSIONS

S. 94 (d) O.40 APPOINTMENT OF RECEIVERS
S. 94 (a) O. 38 ARREST BEFORE JUDGMENT
S. 94 (b) O. 38 ATTACHMENT BEFORE JUDGMENT
S. 94 (c) O. 39 TEMPORARY INJUNCTIONS
- O. 23 WITHDRAWAL AND COMPROMISE OF
SUITS
- O. 22 DEATH, MARRIAGE AND INSOLVENCY OF
PARTIES
COMMISSIONS–ORDER 26
 SCOPE OF S. 75
 A Commissioner is an officer appointed by the Court. (Advocate Commissioner / Expert Commissioner)
 Advocate commissioner shall act judiciously without any bias.
 The general powers of courts with regard to commissions have been summarised in S.75. The detailed
procedural aspects are set forth in O.26.
 Court “may” issue commissions for the following purposes and of no other.
1. To examine any person. -- R. 1-8
2. To make a local investigation. -- R. 9-10
3. To examine or adjust accounts. --R. 11-12
4. To make a partition. -- R. 13-14
5. To hold a scientific, technical, or expert investigation. -- R. 10 A
6. 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 -- R.10 C
7. To perform any ministerial act -- R. 10 B
 I. COMMISSION TO EXAMINE WITNESSES : RULE 1 - 8
 General rule: oral evidence must be taken in open court. But, inability to attend the Court on ground
of sickness / detriment may justify issue of commission.
Note that not every witness can be examined by Commissioners.
 Where the witness is a resident within the local limits of the Court’s jurisdiction.
And
 If the witness is exempt from attending the Court due to sickness or infirmity.
[The Court may, for the purpose of this rule, accept a certificate signed by a registered medical practitioner as
evidence of the sickness or infirmity of any person, without calling the medical practitioner as a witness.]
Then,
Any Court may in any suit issue commissions for examination of such witnesses & the evidence
taken by commission shall form part of the record.
WHO MAY APPLY?

 On the application of the Plaintiff supported by Affidavit.

 On the application of Defendant supported by Affidavit.
 On the application of the Witness to be examined.
 Commission may be issued Suo moto by the court.
 II. COMMISSIONS FOR LOCAL INVESTIGATIONS
In suits relating to immovable property, it is necessary for the Court to identify the said property so as
to effectively adjudicate the matters in dispute before it. Since it is practically impossible for the Judge
herself to inspect the proceedings, a commissioner may be appointed to inspect the property.
 For the purpose of elucidating any matter in dispute.
OR
 For ascertaining the market value of the property.
OR
 For ascertaining the amount of mesne profits.
OR
 For ascertaining the amount of damages or annual net profits.
The Court may issue Commissions to such persons as it thinks fit directing him to make such
investigation and to report back to the Court.
 III. COMMISSIONS TO MAKE PARTITIONS

 Commissions to make partitions of immovable property can be ordered only after

a preliminary decree for partition has been passed. Provided the case does not
come under section 54. [Where District Collector is empowered to ]
Duties of Commissioner:
 Shall conduct necessary inquiry.
 Then, divide the property into as many shares as may be directed by the order under
which the commission was issued.
 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.
 Preparation of Report:
• The commissioner shall then prepare and sign a
report or the Commissioners (where the commission
was issued to more than one person and they cannot
agree) shall prepare and sign separate reports

ON RECEIPT OF REPORT,
appointing the share of each party and distinguishing
each share by metes and bounds.

• Such report or reports shall be annexed to the

CONFIRM
commission and transmitted to the Court; and the
Court, after hearing any objections which the parties
may make to the report or reports, shall confirm, VARY
vary or set aside the same.

• Where the Court confirms or varies the report or

reports it shall pass a decree, but where the Court
SET ASIDE
sets aside the report or reports it shall either issue a
new commission or make such other order as it
thinks fit.
 IV. COMMISSIONS FOR SCIENTIFIC INVESTIGATIONS
 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.
Eg: Commission was issued for archelogical survey (carbon dating) of shiv ling in Gyanvyapi mosque issue.

V. COMMISSIONS TO EXAMINE ACCOUNTS

VI. COMMISSIONS TO PERFORM ANY MINISTERIAL ACT

VII. COMMISSIONS FOR SALE OF PROPERTY

EMERGENT COMMISSIONER

 As the term denotes, when the situation demands expedient interim remedy, the court can exercise
its discretion to appoint an emergent commissioner so as to investigate into the matter without
delay.
 A suit is filed where the plaintiff prays for temporary inunction. Plaintiff pleads that the defendant
is about encroach upon his property by demolishing the boundary wall. A Commissioner may be
appointed on the same day to inspect the property so that the court may immediately decide the
granting of temporary injunctions.
 Defendant is entitled to object the Commissioner’s report before the issuing court.
 The Court may also pass appropriate orders to let the Commissioner be examined as a Court-
witness so that the defendant may Cross examination commissioner as well.
EVIDENTIARY VALUE OF COMMISSIONER’S REPORT

 The moment the Commissioner submits the evidence in the suit, it shall be part of evidence in
the suit and shall form part of the record.
 The report of the Commissioner has therefore, evidentiary value and can be utilized by either of
the parties as evidence in support of their claim. Commissioner’s report is not binding on Court
and can be rebutted by letting in other evidence.
 The court has the power to examine the commissioner personally in open Court relating to any
matters referred to him or mentioned in his report or as to the manner in which he has made the
investigation. In fact, the court also has the power to set aside the commissioner’s report in the
exercise of its inherent powers because if the report does not provide any assistance in the matter,
it should no longer be a part of the records of the case.
 Statements that are made in the report of the commissioner in respect of the matters that are
beyond the scope of the appointment of Commissioner are not admissible in evidence.
 COMMISSION CANNOT BE ISSUED TO INVESTIGATE INTO THE DISPUTED QUESTION OF
FACTUM OF POSSESSION

K. M. A. Wahab & Ors. vs. Eswaran & Anr. (2008 (3) CTC 597)
V.Y. Thomas @ Sajimon vs. V.Y. Joseph (2020 KHC)

• Appointment of Advocate Commissioner for making enquiry about the factum of possession of
the property in dispute is improper since the same has to be adjudicated upon framing issues
and on appreciation of evidence.
• Appointing an Advocate-Commissioner for making an enquiry about factum of possession of
the property in dispute, which is nothing, but fishing of information and not elucidating any
matter in dispute.
• The burden is entirely on the plaintiff to bring convincing evidence to show his possession over
the plaint schedule property and for so doing, it is not permissible for the plaintiff to invoke
Order 26 Rule 9 CPC, which is intended for a different purpose.
• The very wording is “local investigation”, and the purpose of local investigation is to elucidate
any matter in dispute, which itself indicates permissibly of collection of evidence, in respect of
matters which cannot be effectively proved, like measurement, demarcation, identity of the
property, the physical features etc., by oral evidence.
RECEIVERS – ORDER 40
APPOINTMENT OF RECEIVERS

 The term “receiver” is not defined in the Code.

 Receiver is an officer of the Court, and he is not a representative/ agent of the parties.
 "A receiver" is frequently spoken of as the "hand of the Court", and the expression very aptly
designates his functions, as well as the relation which he sustains to the Court."
 The receiver may be defined as an indifferent person between the parties to a case, appointed by
the Court to receive and preserve the property or fund in litigation pendente lite, when it does
seem reasonable to the Court that either party should not hold the subject matter in question.
 The power to appoint receiver is purely the discretion of the Court. The Code uses the phrase
“Where it appears to the Court to be just and convenient, the Court may by order appoint a receiver….”
 WHEN CAN A COURT APPOINT A RECEIVER?

 The Court has absolute * Management of Property

power to appoint a
receiver before or after * Protection and Preservation of Property
the decree by conferring
any or all of the following * Improvement of Property
powers to the receiver.
 The objective is to place
* Realization of rents and profits from the property
the property in the hands
of an impartial * To remove any person from the possession or custody of the property
intermediary for the
smooth settlement of * For instituting and defending suits
disputes between the
parties. * Execution of documents as the owner himself.
DUTIES OF RECEIVER

 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 willful default or gross negligence.

 A Receiver cannot delegate his duties to another.

CONSEQUENCES OF BREACH OF DUTY BY THE RECEIVER

If the 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 willful 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 him or any loss occasioned by him,
and shall pay the balance (if any) to the receiver.
 COMMISSIONERS & RECEIVERS: SIMILARITIES

 Both are officers of the Court.

 Both of them are expected to be impartial agencies whose allegiance should be only to the Court
who appointed them and none other.
 Nature of their duties is temporal.
 It is purely the discretion of the Court to issue commission or appoint a receiver.
 Any interference with the Commissioner’s/Receiver’s duties amounts to contempt of Court.
 ARREST BEFORE
JUDGMENT – ORDER 38
 0. 38, R. 1- 4, ARREST BEFORE JUDGMENT
 OBJECTIVE: Even before declaration of judgment, a creditor may move for the arrest of the
debtor. The purpose is to enable the plaintiff to realize the decretal amount if one is eventually
passed in his favour and to prevent any attempt on the part of the defendant to defeat the execution
of the decree passed against him.
 GROUNDS:
(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, or
(iii) has disposed of or removed from the local limits of the jurisdiction of the Court his property.
(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.
 DISCRETION: Then the court can exercise its discretion and issue an Arrest Warrant against the
defendant if it is proved to the satisfaction of court that claim is bonafide and cause of action is
prima facie in favour of Plaintiff.
 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.
 PERIOD OF DETENTION:
Max period: 6 Months in case of amount or value of the subject-matter of the suit exceeds fifty
rupees, else 6 weeks.
 ATTACHMENT BEFORE
JUDGMENT – ORDER 38
 LEGISLATIVE OBJECTIVES
 A drastic and extra-ordinary remedy available to the plaintiff.
 To prevent any attempt on the part of the defendant to defeat the realization of the decree that may be
passed against him.
 The sole object behind the order levying attachment before judgment is to give an assistance to the plaintiff
that his decree if made would be satisfied. It is a sort of a guarantee against the decree becoming
infructuous for want of property available from which the plaintiff can satisfy the decree.
 The discretion vested with the court must be used sparingly, strictly in accordance with law. It must not
become an engine of oppression.
 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 the plaintiff.
 Undoubtedly, the safeguards preventing the abuse and mis-employment of the said provisions are inherent
and explicit in the wordings thereof. However, notwithstanding the same, the provisions under Order 38
Rules 5 and CPC are, regrettably, often perverted to augment the plight of litigants/defendants, wrongfully
entangled in unfair and unjust legal proceedings, on one hand and to obstruct the process of expeditious
resolution of disputes on the other hand.
MEANING OF ATTACHMENT OF PROPERTY

 Attachment is the legal process of seizing property, whether movable or immovable to ensure
satisfaction of a decree.
 Effect of Attachment : To prevent future transfer or alienation.
The provision in section 64 of the Code of Civil Procedure provides that where an attachment
has been made, any private transfer or delivery of the property attached or of any interest therein and
any payment to the judgment debtor of any debt, dividend or other monies contrary to such
attachment, shall be void as against all claims enforceable under the attachment.
 OR.38, R. 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.
 PREMRAJ MUNDRA V. MD. MANECK GAZI , AIR 1951 CAL 156
 Where however the deft. starts disposing of his properties one by one, immediately upon getting a notice of
the pltf.’s claim, &/or where he had transferred the major portion of his properties shortly prior to the
institution of the suit & was in an embarrassed financial condition, these were grounds from which an
inference could be legitimately drawn that the object of the deft. was to delay and defeat the pltfs’. claim.
 Mere removal of properties outside jurisdiction, is not enough, but where the deft. with notice of the pltfs’.
claim, suddenly begins removal of his properties outside the jurisdiction of the appropriate Court, &
without any other satisfactory reason, an adverse inference may be drawn against the deft. Where the
removal is to a foreign country, the inference is greatly strengthened.
 The deft. in a suit is under no liability to take any special care in administering his affairs, simply because
there is a claim pending against him. Mere neglect, or suffering execution by other creditors, is not a
sufficient reason for an order under Order 38 of the Code.
 Without any basic strata of truth underlying the allegation or vague and general allegations that the
defendant is about to dispose of the property or remove it beyond the jurisdiction of the court totally
unsupported by particulars … would not constitute an adequate compliance with the said provision....
M K GOVINDANKUTTY MENON V. REENA

DISTINCTION BETWEEN ATTACHMENTS BEFORE JUDGMENT AND THOSE In

EXECUTION
As per the High Court of Kerala,
 “Attachments before judgment are issued with the objective of preserving the property belonging
to the defendant concerned so that in the event of a positive decree being passed in favour of the
plaintiff, he will be able to proceed against that property for securing the fruits of the decree.
While issuing such attachments, the Court only ensures that the defendant does not dispose of the
property pending suit. … On the contrary, attachment in execution is a step in execution and such
attachments are often readily granted and such attachments are not liable to be lifted on
furnishing security....”
 Agricultural produce is exempted from attachment under O. 38 but under attachment in
execution, it is liable to attachment subject to S. 60, proviso.
 • Plaintiff must prove with utmost precision that: (1) There is heavy chance of plaintiff winning the
suit (2)That the Def. is about to dispose or remove the property from the local limits of the
jurisdiction of the Court , and (3) that the Def. does the same with intent to obstruct or delay the
1 execution of any decree that may be passed against the plaintiff.

II • The plaintiff shall specify the property required to be attached and the estimated value thereof.

• Court then directs the Def. to furnish security 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
III sufficient to satisfy the decree, or to appear and show cause why he should not furnish security.

• If the def fails to show cause why he should not furnish security, the Court may order the property
IV to be attached.
TEMPORARY INJUNCTIONS
– ORDER 39
 KINDS OF
INJUNCTIONS

Mandatory Prohibitory Ad interim

Injunctions Injunctions Interim Temporary Perpetual
 INJUNCTIONS
 Protective reliefs.
 An injunction is a Judicial Remedy prohibiting persons from doing a specified act called a prohibitory
injunction or commanding them to undo some wrong or injury called a mandatory
injunction and may be either temporary, interim or interlocutory or permanent.
 Relief of injunction can not be claimed as of right. It is discretionary, equitable relief.
 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. To preserve
status quo.
 A Perpetual injunction can only be granted by a final decree
made at the hearing and upon the merits of the suit. On the other hand a temporary or
interim injunction may be granted on an interlocutory application at any stage of a suit.
The injunction is called temporary as it is until the suit is disposed of or until the further order of the Court.
 Who can apply? Plaintiff or Defendant
 Against whom it may be issued? Only against a party and not against a stranger to the suit.
 MORGAN STANLEY MUTUAL FUND V. KARTICK DAS
T
R I PRIMA FACIE CASE
• Subjective satisfaction of the court.
I • The burden is on the plaintiff
P • In deciding a prima facie case, the court is to be guided by the
plaintiff's case as revealed in the plaint, affidavits or other materials produced by him.
P
L II BALANCE OF (IN)CONVENIENCE
E • The court must be satisfied that the comparative mischief, hardship or inconvenience which is likely to be
caused to the applicant by refusing the injunction will be greater than that which is
likely to be caused to the opposite party by granting it. i.e, inconvenience of plaintiff as against inconvenience
T of defendant. Comparative inconvenience, greater hardship rule.
E
S III IRREPERABLE INJURY
T • An injury will be regarded as irreparable where there exists no certain pecuniary standard for measuring
damages.
WHEN TEMPORARY INJUNCTION MAY BE GRANTED?

 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
execution of a decree.
 That the defendant threatens, or intends, to remove or dispose of his
property with a view to defrauding his creditors.
 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.
 Where the defendant is about to commit a breach of contract or other
injury of any kind,
 Where the court is of the opinion that the interest of justice so requires.
 AD INTERIM INJUNCTIONS
 Exparte injunctions. Where it appears to the Court that the object of granting the injunction would be
defeated by the delay, it may grant exparte injunctions without issuing notice to the other side.
 Validity: Till the disposal of the application.
 The difference between an ad interim injunction and an interim injunction being that the former is granted
initially in the petition to operate immediately and continues till the disposal of the petition and the later is
granted while disposing of the petition and survives till the disposal of the suit.
 Rule 3 of Order 39 C.P.C. mandates that the court shall record reasons before granting Injunction, while
dispensing with notice in appropriate cases.
 Procedure after granting Ad interim injunctions:
(a) to deliver to the opposite party immediately after the order granting the injunction has been made,
(i) a copy of the application for injunction
(ii) a copy of the affidavit filed in support of the application;
(iii) a copy of the plaint; and
(iv) copies of documents on which the applicant, relies, and
(b) to file, on the day on which such injunction is granted an affidavit stating that the copies aforesaid have been
so delivered or sent.
 WITHDRAWAL &
COMPROMISE OF SUITS –
ORDER 23
WITHDRAWAL OF SUITS:
WITHDRAWAL WITHOUT LEAVE OF THE WITHDRAWAL WITH THE LEAVE OF THE
COURT: COURT:

An absolute and unqualified right in favour of plaintiff.

Any time after institution of the suit, the plaintiff may abandon his suit or a part of his claims against all or any
of the defendants.
• Here, permission of the Court is not sought. • Permission is sought on the following grounds:
1. FORMAL DEFECT: Misjoinder of parties,
misjoinder of cause of action, failure to disclose
cause of action, defect in prayer clause, erroneous
evaluation of subject matter of suit.
2. SUFFICIENT GROUNDS: Where suit was
infructuous or premature.
Effect: No liberty to file a fresh suit. Effect: Permission is granted with the liberty to file a
fresh suit.
COMPROMISE OF SUITS – O. 23, R. 3
 Compromise means settlement of dispute by mutual consent. After the institution of suit, the
parties are at liberty to compromise, adjust or settle it by an agreement or compromise.
 Principle: All matters which can be decided in a suit can also be settled by means of a compromise.
 Conditions to be satisfied before passing a consent decree:
(a) There must be an agreement or compromise.
(b) In writing and signed by both parties.
(c) Must be lawful.
(d) Must be recorded by the Court.
(e) Court must pronounce the consent decree.
 Effect of compromise:
(a) Implied waiver of Right to Appeal by both parties.
(b) No fresh suit lies on the same cause of action.
 DEATH, MARRIAGE AND
INSOLVENCY OF PARTIES –
ORDER 22
 CONCEPT OF ABATEMENT OF SUITS
 Abatement means premature ending of a suit before the final adjudication. In the context of suits,
abatement is dependent on the nature of right to sue.
 “The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives.”
 Therefore, when a party to a suit dies, the first question to be decided is whether the right to sue
survives or not. If it doesn’t, the suit abates there. If it does survive, the suit can be continued by the
legal representatives of the deceased party.
Instance where right to sue doesn’t survive :
 Actio personalis moritur cum persona - A personal action dies with the person who applies.
 S. 37, Indian Contract Act : Obligation of parties to contracts.
 S. 306, Indian Succession Act, 1925: Demands and rights of action of or against deceased survive to
and against executor or administrator.
 Right to sue survives Right to sue doesn’t survive

• Suit for title and possession • Suit for damages for assault.
• Suit for specific performance of • Suit for malicious prosecution.
contract
• Suit for partition • Dissolution of marriage or
Divorce
(a) A promises to deliver goods to B on a certain day on payment of Rs. 1,000. A dies before
that day. A’s representatives are bound to deliver the goods to B, and B is bound to pay the
Rs. 1,000 to A’s representatives.

(b) A promises to paint a picture for B by a certain day, at a certain price. A dies before the day.
The contract cannot be enforced either by A’s representatives or by B.
O. 22, Rule 7
• Suit shall not abate.
Marriage of a female plaintiff/ defendant

O. 22, Rule 8 • Where Plaintiff becomes insolvent:

It shall not cause the suit to abate and can
Insolvency of Party be continued by his Assignee / Receiver
for the benefit of his creditors.

• Where Defendant becomes insolvent:

The Court may stay the suit or
proceeding pending against the defendant
adjudged insolvent.