Probate In India: Definition, Importance & Application

  Probate In India: Definition, Importance & Application                        @1                        A will  is a document that is drawn by a person with clear instructions as to how his/her assets are to be distributed on their death. In certain situations — and only in certain jurisdictions, such as Mumbai, Kolkota and Chennai — the executor of the will may need to apply for a probate in order to legalise it. This article will discuss, in detail, what a probate is, when one is needed in India, what the court fees are, and how it can be obtained. @2 What is a Probate? The Indian Succession Act, 1925 decrees that a probate is official proof of a will. A probate is issued to the executor, or the person who is authorized to implement or execute the will and thereby adds a legal character to the will. A probate, as defined in the India Sucessession Act, 1925, is ‘A copy of will certified under the seal of a court of competent jurisdiction with grant of administration of the

TYPES OF INTERIM AND INTERLOCUTORY RELIEFS IN CIVIL CASES WITH REFERENCE TO SPECIFIC RELIEF ACT AND CODE OF CIVIL PROCEDURE.

SUMMARY OF THE SUBJECT VARIOUS TYPES OF INTERIM AND  INTERLOCUTORY RELIEFS IN CIVIL CASES WITH REFERENCE TO SPECIFIC RELIEF ACT AND CODE OF CIVIL PROCEDURE.
@1

               Introduction :Specific Relief Act, 1963 is a substantive law. It provides for the 'specific' or 'particular' relief which can be granted in a proceeding.
Whereas the Code of Civil Procedure, 1908 ('the Code' for short) is an adjective or procedural law. It is a general enactment laying down the procedure to be followed for institution and conduct of the suits, other miscellaneous civil proceedings and for execution of decrees. The procedure is directed to ensure the ends of Civil Justice. Accordingly, the Code also provides for incidental proceedings or supplemental proceedings. In order to ensure that the rights and interests of the litigants are protected, the Code empowers the Courts to pass necessary interim or interlocutory orders. The Code is exhaustive as to the matters dealt with by it but it is not exhaustive as to the matters not covered therein1. Therefore, in exercise of powers conferred by any other law for the time being or/and in exercise of its inherent powers, Civil Courts can pass appropriate interim orders during the conduct of the Suit or other miscellaneous proceedings.
                   Pertinently, the incidental proceedings referred to in Part III of the Code are in aid to the final proceedings. In other words, an order passed in the incidental proceedings will have a direct bearing on the 1 Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hira Lal, AIR 1962 SC 527.
@2

2) result of the suit. Such proceedings which are in aid of the final proceedings cannot, thus, be held to be at par with supplemental proceedings which may not have anything to do with the ultimate result of the suit. Supplemental proceedings referred to in Part VI thereof can be initiated with a view to prevent the ends of justice from being defeated. Recourse of the supplemental proceedings may not be taken as a routine matter but only when an exigency arises therefor.
The orders passed in the supplemental proceedings may some time cause hardships to the other side and, thus, are required to be taken recourse to when a situation arises therefor and not otherwise. Supplemental proceedings contemplates various temporary reliefs and orders which are useful to ensure that the ends of justice are secured. The Code provides for several such interim and interlocutory reliefs. Section 94 of the Code which is titled as “Supplemental Proceedings” is the basic provision conferring powers on Civil Courts to pass orders to prevent the ends of justice from being defeated.
@3

Section 94 :Before exercising powers conferred by the provision, the court shall form an opinion that it is necessary to pass a particular order as enumerated in the provision, for preventing ends of justice from being defeated. The powers so conferred can be exercised only if it is so prescribed.
The word 'prescribed' is defined by Clause (16) of Section 2.
"Prescribed" means prescribed by rules. Thus, the powers conferred 3 under section 94 can be exercised only if it is so prescribed by rules. It would thus mean that the powers conferred by the provision, manner of its exercise, limitations and restrictions thereto are such as are provided by the rules contained in various orders enumerated under First Schedule.
'Ends of justice' would cover several cases. It prevents alienation or disposition of property and protects it from any harm.
@4

MEANING OF INTERIM AND INTERLOCUTORY CIVIL ORDERS :
Terms 'interim order' or 'interlocutory order' are not defined in the Code. According to the dictionary meaning, the term 'interim' means 'for the time being', 'meanwhile', 'temporary', 'provisional', 'not final', 'intervening'. The term 'interlocutory' also means provisional, interim. Thus, interim or interlocutory orders are one and same and mean that those orders which are temporary in nature, passed by the court during the pendency of the suit, which does not finally decides a matter in issue even in part. Generally, such orders are designed to preserve the status quo pending litigation and to ensure that the rights of litigants are not prejudiced by the normal delay which usually occurs in court proceedings.
Principles governing the grant of various interim / interlocutory orders are different. Therefore, it will be apposite to separately see each kind of interim / interlocutory order. Followings are some illustrations of interim / interlocutory reliefs :@5
1. Order to issue warrant for arrest :Section 94 ( a ) r/w. O. XXXVIII Rule ( 1 ) of the Code 4
empowers the court to issue warrant of arrest against the defendant for bringing him before the court to show cause why he should not furnish security for his appearance. Object behind these provisions is to prevent the ends of justice from being defeated by the absence of the defendant during the pendency of the suit whereby there is probability that plaintiff will be obstructed or there would be delay in the execution of any decree that may be passed against the defendant.
The application of this rule is confined to cases where the defendant is about to remove himself beyond court's jurisdiction with the intention of evasion, obstruction or delay.
Before exercising those powers, the court should satisfy itself that there is sufficient material on record which reveals the apprehension of the plaintiff being reasonable. The defendant is entitled to show cause against his arrest. The provisions enable the court to ensure the presence of defendant.
If the defendant pays the sum specified in the warrant as sufficient to satisfy the plaintiff's claim then the defendant shall not be arrested and the amount paid shall be deposited in the court as security for his appearance till disposal or until further order of the court.
@6

2. Order to deposit money or furnish security for appearance :Section 94 ( a ) r/w. Rule 2 of O. XXXVIII of the Code empowers the Court to direct the defendant who fails to show cause as per Rule 1, to deposit in court money or other property sufficient to satisfy the claims made against him or to furnish security for his appearance at 5 any time when called upon while the suit is pending and until satisfaction of the decree that may be passed against him in the suit.
Section 94 ( a ) r/w. O. XXXVIII, Rule 4 of the Code empowers
the court to detain the defendant in prison where he fails to comply with the order under Rule 2 or Rule 3 until the decision of the suit or where a decree is passed against the defendant until the decree has been satisfied. However, the defendant cannot 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. Moreover, the defendant shall not be detained in prison or his detention shall not be continued after compliance of the order.
@7

3. Attachment before judgment :Section 94 ( b ) r/w. Rules 5 and 6 of O. XXXVIII of the Code
empowers the court to direct the defendant to furnish security to produce and place at the disposal of court property specified in the order whenever required and when defendant fails to furnish security, to attach the property specified or portion thereof which appear sufficient to satisfy the decree which may be passed in the suit.
Attachment is legal process of seizing property to ensure satisfaction of a judgment. The object of O. XXXVIII, Rule 5 is to safeguard the interest of the plaintiff, to prevent any attempt on the part of defendant to defeat the realization of the decree that may be passed against him. However, the purpose of O. XXXVIII, Rule 5 is not to convert an unsecured debt into a secured debt.
@8

6 ) The power under O. XXXVIII, Rule 5 of the Code is drastic and extra ordinary power. It should be used sparingly and strictly in accordance with the rule. A defendant is not debarred from dealing with his property merely because a suit is instituted or about to be instituted against him. A plaintiff should prima facily show that his claim is bonafide and valid and also should satisfy the court that the defendant is about to remove or dispose of the whle or part of his  property with the intention of obstructing or delaying the execution of any decree that may be passed against him. The order of attachment before judgment affects the right of the owner of the property to deal with the same even before any judgment is available against him.
Therefore, there must be cogent, prima facie material to lead the court to the conclusion that there have been attempts made by the defendant to dispose of the property with a view to defeat the decree and that attempts to alienate the property are either to delay or to defeat the execution of decree. Exercise of such powers shall be in accordance with principles governing attachment before judgment. In the case of Premraj Mundra vs. Mohd. Manek Gazi and Ors.2 the Hon'ble Calcutta High Court has enunciated the guiding principles for exercising the above power to attach property before judgment. The Hon'ble Apex Court3 explained the object of O. XXXV, Rule 5 and the facts to be considered while exercising the power under Order XXXVIII, Rule 5. However, the property exempted under Section 60 of the Code cannot be attached under the said Rule.
2 Reported in AIR 1951 Calcutta 156.
3 Raman Tech and Process Engineering Company vs. Solanki Traders dated 20th November 2007.
@9

7 )Before attachment of the property the court is required to follow the procedure under Rules 5 and 6 of O. XXXVIII. Further, without giving an opportunity to furnish security attachment cannot be ordered. Only conditional attachment can be ordered by court under O. XXXVIII, Rule 5 (3 ).
Effect of alienation after attachment :As per Section 64 of the Code any private transfer or delivery of property attached or any interest therein shall be void as against all the enforceable claim under the attachment. Attachment before judgment shall not affect the rights of persons who are not parties to the suit provided the rights are existing prior to the attachment.
@10

4).Temporary injunction :Temporary injunction is one of the interim / interlocutory reliefs with reference to provisions of Specific Relief Act and the Code of Civil Procedure.
Meaning of Injunction :An injunction is a judicial process whereby a party is ordered to refrain from doing or to do particular act or thing. In the former case it is called a prohibitory / preventive injunction and in the later case, it is called as a mandatory / compelling injunction. It may be temporary or permanent.
Temporary Injunction meaning :As per Section 37 of the Specific Relief Act temporary injunctions are such as are to continue until a specific time or until the further order of the court and they may be granted at any stage of suit and are regulated by the Code. As such, temporary, interim or interlocutory injunctions are such as are to continue for specific time or until further order of the Court and they operate during the pendency of suit or appeal or other proceeding or for a specific period.
They do not conclude the rights and liabilities of parties therein
finally. Temporary injunction may be prohibitory or mandatory.
@11

Relevant provisions :An order of injunction can be granted by Court only when there exist any power / authority to do so. Source of power of civil court to grant interim relief is under Section 94 of the Code. Moreover, Part III of the Specific Relief Act, 1963 which comprises Sections 36 to 42 deals with injunctions. As per Section 37 of the Specific Relief Act,

temporary injunctions are regulated by the Code of Civil Procedure 1908. Section 94 ( c ) r/w. O. XXXIX, Rules 1 and 2 of the Code empowers the Court to pass the temporary / interlocutory / interim injunction.
@12

Object of granting temporary / interlocutory injunction :The object of granting temporary / interim injunction is to preserve the subject matter of the suit pending trial in its then condition. It is to see that the relief which may be granted finally may not be rendered infructiuous. It is to protect the plaintiff against the injury by violation of his right for which he cannot be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial.
4)Gujrat Bottling Company Ltd. vs. Coca Cola Company 1995 (5) SCC 545.
@13

When Temporary Prohibitory Injunction can be granted :As per O. XXXIX, Rule 1 of the Code where it is proved by an affidavit 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 execution of a decree, b] that the defendant threatens or intends to remove or dispose of his property with a view to defraud 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, d] that the defendant is about to commit a breach of contract or other injury of any kind, the court may grant temporary injunction. As per R. 2 of O.XXXIX of the Code, it can be granted in order to prevent the breach of obligation existing in favour of the plaintiff.
When a case falls under Clause (a) of Rule 1 of O.XXXIX of the
Code interim injunction can be granted in favour of either of the parties i.e. plaintiff/s or defendant/s. Whereas in respect of situations covered under Clauses (b) and (c) temporary injunction can be granted only in favour of plaintiff and not in favour of defendant.
@14

Main considerations for grant / refusal of relief of temporary
injunction
:Injunction is a discretionary relief. The court is not bound to grant such relief merely because it is lawful to do so. The discretion so conferred is not arbitrary, but sound and reasonable. It is guided by judicial principles. The exercise of discretion must be in judicial  Nanasaheb vs. Dattu & Ors. Reported in MANU/MH/0007/1992.
manner depending upon the facts and circumstances of each case. No hard and fast rule can be laid down for the guidance of Courts as regards the exercise of such discretion. Injunction is equitable remedy.
Thus, the principles of equity plays very vital role in exercise of the powers to grant injunction. Settled important tests for exercise of discretion in granting temporary injunction are 

1] Whether the applicant has primafacie case ? 

2] Whether the balance of convenience lies in favour of 

applicant ?

 3] Whether the applicant will suffer irreparable injury,

 if his prayer for interlocutory injunction is disallowed ?
@15                        

       Therefore, for grant of temporary / interim injunction applicant has to prove that primafacie case and balance of convenience lies in his favour and he will suffer irreparable loss, if the application is not allowed.
Hon'ble Supreme Court6 observed that the phrases ‘primafacie
case’, 'balance of convenience’, and irreparable loss’ are not rhetorical phrases for incantation, but words of width and elasticity to meet myriad situations presented by man’s ingenuity in given facts and circumstances, but always be hedged with sound exercise of judicial discretion to meet the ends of justice.
Primafacie case :An interim relief is granted to a person on the footing that the person is primafacie entitled to the right on which he based his claim for the main relief and interim relief. Therefore, the applicant is  Dalpat Kumar vs Prahlad Singh, AIR 1993 SC 276: (1992) 1 SCC 719.
@16

11 required to show primafacie his entitlement to the right claimed,  there must exist a strong probability that the applicant has ultimate chance of success. Primafacie case denotes that the act complained of is in violation of right of applicant and that there is a bonafide dispute raised by the applicant, that there is a strong case for trial which needs investigation and a decision on merits. However, primafacie case is not to be confused with primafacie title which has to be established on evidence during the trial. It means that the case needs serious consideration, investigation or determination and it is not liable to be rejected summarily. But it does not mean that, a plaintiff should have a cent percent case and he will in all probability succeed in the trial.
@17

Balance of Convenience :Balance of convenience may mean the convenience and inconvenience of the parties contesting application for temporary injunction and the applicant has to satisfy the court that more comparative hardship, mischief or inconvenience is likely to be caused to the applicant by refusing the injunction than the hardship or inconvenience likely to be caused to the opposite party. Therefore, it is necessary to compare the case of the parties for ascertaining in whose favour the balance of convenience lies.
@18

Irreparable Injury :The court must be satisfied that refusal to grant injunction would result in irreparable / irretrievable injury to the party seeking relief. The expression irreparable injury however does not mean that there should be no possibility of repairing the injury. It means that the injury must be material which cannot be adequately compensated by damages and where there exists no certain pecuniary standards for measuring the damages.
@19

Other factors / considerations :The injunction is equitable remedy. Therefore, while considering to grant or refuse to grant a relief of temporary injunction, the court is required to take into consideration the principles of equity i.e. factors like delay and latches or acquiescence on the part of applicant, conduct of the applicant, public interest, provision of Section 41 of the Specific Relief Act which prescribes when temporary injunction cannot be granted and other aspects of equity etc.
However, a mini trial can not be held at the stage of deciding application for temporary injunction. The above guidelines / principles are neither exhaustive nor complete nor absolute and court has to exercise its judicial discretion in the light of facts and circumstances of each case.
@20

Temporary Mandatory Injunction :Like a preventive injunction, mandatory injunction can also be temporary or final. Some times in order to prevent breach of an obligation it is necessary to compel the performance of certain acts which court is capable of enforcing.
As per Section 39 of the Act for granting a mandatory injunction court has to determine i] that in order to prevent breach of obligation it is necessary to compel the performance of certain acts.

  @21

ii] that the  requisite acts are such which the court is capable of enforcing. A temporary mandatory injunction provides a remedy where it is not possible to restore the status quo unless the wrongdoer is made to undo the wrong which he has committed.
The court has to exercise discretion in granting temporary mandatory injunction more carefully than at the time of grant of prohibitory temporary injunction. Generally, temporary mandatory injunction is to be granted in very rare and exceptional cases wherein there is extreme hardship and there are compelling circumstances. The relief of interlocutory mandatory injunctions are granted generally to preserve or restore status quo of the last non contested status which preceded the pending controversy until the final hearing, when full relief could be granted, or to compel the undoing of those acts that have been illegally done, or the restoration of that which was wrongfully taken from the complaining party.
Generally it is to be granted only in circumstance from which it
is clear and where the primafacie materials clearly justify a finding that the status quo has been altered by one of the parties to the litigation and the interests of justice demanded that the status quo ante be restored by way of an interim mandatory injunction.
In the case of DORAB CAWASJI WARDEN8 the Hon'ble Apex
Court has laid down the guidelines in respect of grant of interim .
7)KISHORE KUMAR KHAITAN Vs PRAVEEN KUMAR SINGH, AIR 2006 SC 1474.
8)DORAB CAWASJI WARDEN Vs COOMI SORAB WARDEN, AIR 1990 SC 867.
@22

mandatory injunction. Moreover, in the case of Baban Naryan Landge  Hon'ble Bombay High Court has laid down the requisites for exercising the jurisdiction for grant of temporary mandatory injunction.
In addition to proof of primafacie case, balance of convenience
and irreparable loss the applicant is required to prove that the case falls in exceptional category where the court should intervene in granting of relief which may in fact cover entire relief, that should have been granted in the suit. Some higher degree of satisfaction of the court about primafacie,
irreparable loss and balance of convenience is required than the case involved in grant of prohibitory injunction.
5. Order to commit a person guilty of breach of tempory injunction to civil prison and to attach and sale his property :Section 94 ( c ) r/w. O. XXXIX, Rule 2A empowers the Court to punish the party committing breach of interim / interlocutory order of injunction. The object of the above Rule is not to punish a person who disobeyed the temporary injunction order but to enforce it. As per above provision for the breach of injunction court may order the property of person guilty of such disobedience or breach to be attached and may also order such person to be detained in civil prison for a term not exceeding three months, unless in the mean time the court direct his release. The attachment under this rule shall not remain in force for more than one year and at the end of that time if the disobedience or breach continues, the property attached may be 9 Baban Naryan Landge vs. Mahadu Bhikaji Tonchar and Ors. 1989 Mh.L.J. 146.
@23

        1)sold and out of the sale proceeds the court may award to the injured party, such compensation as it thinks fit. The power under Section 94 ( c ) r/w O. XXXIX, Rule 2A of the Code is to be exercised with great caution. The proceeding under the above Rule for breach of injunction is in the nature of quasi criminal proceeding and the plaintiff will have to establish beyond any shadow of doubt that the defendant committed disobedience and breach of injunction order inspite of having full knowledge of the same. The proceeding under O. XXXIX,
Rule 2 A of the Code are absolutely independent proceeding and it should be separately registered as Miscellaneous Judicial Case.

2)As per Order XXXIX, Rule 4 of the Code any order of temporary injunction may be discharged or varied or set aside by the court or application made thereto by any party dissatisfied with such order. It provides remedy to a party against whom an exparte injunction order is passed to get the order of injunction vacated on the ground that false or misleading statements were made for obtaining the order. It also enables both the parties to get the interim order of injunction varied or set aside on the ground of changing circumstances.
@24

6. Appointment of Court Receiver :The term 'receiver' has not been defined in CPC. However, the Hon'ble Supreme Court explained the meaning of word “receiver” as an indifferent person between the parties to a cause, appointed by the court to receive and preserve the property or fund in litigation 10 Rampyaribai Sukhdeo Daga vs. Neeladevi Narayandas : 2007 (4) Mh.L.J. 213.
 @25

pendentlite.
Receiver is an independent person who is appointed by a court to manage property or money during pendency of suit or after decree. He is an officer of the court and as such he shall act in good faith and with reasonable diligence.
Section 94 ( b ) r/w. O. XL empowers the court to appoint a receiver where it appears to the court to be just and convenient to prevent the ends of justice from being defeated. The above power is also discretionary. However, the discretion is not arbitrary and it is sound, reasonable and guided by the judicial principles.
The appointment is made to preserve property pending litigation to decide the rights of the parties or to prevent scramble amount to which any party is entitled, as where a receiver is appointed pending a grant of probate or administration, or to preserve property of persons under disability or where there is a danger of the property being damaged / wasted etc.
              O. XL, Rule 1 of the Code provides for appointment of receiver where it appears to the court to be just and convenient. The power can be exercised both before and after decree. The power conferred upon receiver enables the receiver to manage, protect and preserve the property and to collect the rents and profits thereof and for realization of profits. The principles to be borne in mind while exercising powers under O. XL, Rule 1 of the Code are well settled by catena of judgments / decisions and the court has to consider whether special interference with the possession of the defendant was required, there being a well founded fear that the property in question will be dissipated or that other related mischief may be done unless the court gives its protection. In the case of State Bank of India vs. Trade Aid
Papers and Ors.11, by following the observations in the case of T. Krishnaswami Chetty , Hon'ble bombay High Court enumerated following five factors which the court must consider before concluding that, it is just and convenience to appoint receiver,

@26

 I] The appointment of the court receiver was matter resting in the discretion of court.
ii] The appointment should not be made unless plaintiff had primafacie excellent chance of succeeding in the suit.
iii] The plaintiff establishes some emergency or danger or loss demanding immediate action.
iv] The order would not be made if it had the effect of depriving the defendants of a defacto possession.
v] The court will look to the conduct of party who made the application and would refuse to interfere if the conduct is not free from blame.
In, Subhashchand Jain13 the Hon'ble Apex Court laid down guiding principle for appointment of court receiver. The said principles are as follows :
I] That the plaintiff for appointment of receiver must show primafacie that he has strong case, or good title to the property or a special equity is in his favour and that the property in the hands of defendant is in danger of being vested.
II] Where the property is in medio that is to say in the possession of no one, a receiver can readily be appointed. But where any person is in possession under a legal claim, strong and compelling reasons are necessary for interfering with such
possession.
11.State Bank of India vs. Trade Aid Papers and Ors. AIR 1995 Bombay 268.
12.T. Krishnaswami Chetty vs. C. Thangvelu Chetty AIR 1955 Mad. 430.
13.Subhashchand Jain vs. Harisingh AIR 1987 SC 1148.
 @27

 III] An application for appointment of the receiver should always be made promptly and the delay in making it is always
circumstance unfavorable to such an appointment. The powers of court under O. XL, Rule 1 of the Code are to be exercised to advance cause of justice and what is “just and convenient” depends upon the nature of claim and the surrounding circumstances.
The courts while appointing receiver under O. XL Rule 1 of the
Code may not deprive the defendant of possession, in case of immovable properties provided that defendant is ready and willing to continue in possession as agent of the receiver on the terms and conditions to be settled.
@28

7. Other Interlocutory Orders in supplemental proceedings :
I. Order to furnish security for costs In view of O.XXV of the Code, the Court can either suo moto or on application of any defendant order the plaintiff to give security for payment of all the costs incurred or likely to be incurred by the defendant. Such order can be passed at any stage of the suit. Such security can be directed to be given within the time fixed by the Court.
The proviso makes it mandatory to order the plaintiff/s to furnish security when the sole plaintiff or when there are more plaintiffs than one then all of them resides outside India and do not possess any sufficient immovable property within India other than the property forming subject matter of the suit.
In case of failure of the plaintiff/s to furnish security within the
time fixed, the court shall dismiss the suit unless it is permitted to be  withdrawn.
@29

II. Adinterim / Exparte Injunction :O. XXXIX, Rule 3 of the Code confers on the court a power to grant an exparte interim injunction. It provides before granting injunction issuance of notice to opposite party is rule and exparte injunction is an exception. Where the object of granting injunction is likely to be defeated by delay, the court has power to grant injunction before issuance of notice to the opposite party. Due care and caution should be taken for granting exparte injunction as there can be danger of concealment of material facts for getting the adinterim injunction. The court is required to carefully examine the record to ascertain whether a real case exists for granting such order. It must also record the reasons for doing so and shall take into consideration all relevant facts including as to how the object of granting injunction itself shall be defeated if an exparte order is not passed. Any such exparte order should be in force up to the date specified by the court, before which the plaintiff shall serve a notice thereof on the defendant concerned.
The Hon'ble Apex Court in the case of Morgan Stanly Mutual
Fund15 enunciated the factors to be considered by the court for grant of exparte injunction. Only in exceptional cases when failure to do so will lead to an irreversible or irretrievable situation exparte mandatory injunction
14)Shivkumar Chaddha and Ors vs. Municipal Corporation of Delhi and Ors. Manu/SC/0522/1993.
15 Morgan Stanly Mutual Fund vs. Kartik Das Reported in 1994 (4) SCC 225.

can be granted .
          As per O. XXXIX, Rule 3A, on grant of adinterim injunction, the court shall make an endeavor to finally dispose 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.
In case of failure to do so, the order for adinterim injunction becomes appealable. The Appellate court can change that order with further direction to take appropriate action against that presiding judge.

@30

17. While granting adinterim injunction also court can impose suitable conditions.

18. III. Orders which can be passed under Section 94 ( e ) of the
Code :Where the relief claimed does not come under the purview of any of the Clause ( a ) to ( d ) of section 94, Clause ( e ) thereof which confers general powers on court of law to make just and convenient interlocutory orders can be invoked. The term “if it is so prescribed” in Section 94 reveals the limitation of and the restrictions for exercise of such powers by the court. It means that, if the rules under the Code of Civil Procedure prescribes of such other interlocutory order, the court would then have power to make an order prescribed by the rules
itself.
16)State Bank of Patiala vs. Manishkumar Bhasain 2010 (3) ALL MR 981 ( SC ).
17 Venkatsubbiah Naidu vs. S. Chellappan and Ors. AIR 2000 SC 3032.

18)Vascon Engineers Ltd. vs. Sansara Hotels India Pvt. Ltd. 2009 (4) Mh.L.J. 859.
19)Dinkar Tippanna Mirajkar vs. Bank of India : 2002 (3) Mh.L.J. 791.

19)Thus, the power of the court under Section 94 ( e ) cannot be exercised as an inherent power of the court under Section 151 of the Code.
@31

i. Status quo---:Section 94 ( e ) r/w. O. XXXIX, Rules 1 and 2 of the Code empowers the court to pass an order of statusquo.
Term statusquo is not defined in the Code. Statusquo is an order of injunction whereby parties to the suit are restrained from doing the act which may bring change in the position of parties or in the nature or character of the property forming subject matter of the suit. However, primary purpose of injunction is to preserve the matter in statusquo.
Therefore, statusquo should not be granted where there is no primafacie case.

20. Generally when court orders for statusquo, court should specify the contents in which or condition subject to which such statusquo direction is issued.
@32

21) Interim sale :Section 94 ( e ) r/w. O. XXXIX, Rule 6 of the Code empowers the court on the application of any party to the suit to sell a movable property which is a subject matter of the suit or attached before judgment in such suit and which is subject of speedy and natural decay or when for any other just and sufficient cause it is desirable to sell the same at once. The purpose of interim sale is to secure the property which will otherwise deteriorate in value. Where court is 20 Nagorao vs. Nagpur Improvement Trust AIR 2001 Bombay 402.
22 )  convinced of evil intention of the borrower to defraud the creditor, recourse of the above provision can be taken. Generally in a suit for recovery of loan granted by the bank to the defendant for purchase of vehicles where the vehicle is hypothecated with the plaintiff bank, the plaintiff uses to make such kind of application for interim sale of the vehicle.
@33

             iii. Order in respect of detention, preservation, inspection of the subjectmatter of suit :Section 94 ( e ) r/w. O. XXXIX, Rule 7 of the Code empowers the court to make an appropriate order for detention, preservation or inspection of the property which is subject matter of such suit or in respect of which any question may arise therein. It also empowers the court for above purpose to authorize any person to enter upon or into any land or building in possession of any other party to such suit and to take sample or to have observation etc. The above power is generally exercised for detention and preservation of the suit property.
The object of inspection of suit land is to find out its condition where assistance of the court would be necessary where the party requiring the assistance is incapable of having the knowledge in view of the nature of suit land. Under this Rule the court can appoint the commissioner for inspection of the property in order to protect the rights of the party or in the ends of justice. The court may pass the order under above Rule if the court feels that such action is necessary for the purpose of obtaining full information.
There may be a situation where the party seeking the assistance
of the court is not allowed to have the inspection in self or through his agent or where the court feels that local investigation would help in assessing the facts properly, court can order local investigation.
@34

Difference between O. XXXIX, Rule 7 and O. XXVI, Rule 9 :These provisions serve different objects. Object of holding a local inspection under O. XXXIX, R. 7 of the Code is to keep on record the existing condition of the property so that if the same is subjected to any change later on, on any deterioration or mischief by any party that can be known by the court wherever required. Thus, it is generally issued for preservation of the suit property or the property in respect of which any question may arise therein. The order under above Rule is not by way of investigation as contemplated under O. XXXIX, Rule 9 and there is no question of tendering report of commissioner as evidence as provided under O. XXVI, Rule 10 of the Code. The commission under O. XXXIX, Rule 7 is issued for a limited purpose as the court is concerned with preservation of the property and inspection of the property for the purpose of maintaining statusquo. On the other hand, issuance of commission under O. XXVI, Rule 9 clearly indicates that the commission is for purpose of investigation and for the purpose of elucidating the matter in dispute. That is why under O. XXVI, Rule 10 ( 2 ) it is expressly stated that the report of the
commissioner and the evidence taken by him shall be evidence in suit.

@35

23. O. XXXIX, Rule 8 of the Code empowers the court to pass order 21 Kishor H. Desai vs. Leelavati Virji Chheda and Ors 1990 (1) Bombay CR 160.
under Rule 6 or 7 of O. XXXIX of the Code exparte where it appears to the court that the object of making such order would be defeated by the delay. However, issuance of notice to the opposite party is rule and grant of exparte order is an exception. Its object is to prevent the ends of justice from being defeated.
iv. Order to put other party in possession of suit property :Section 94 ( e ) r/w. O. XXXIX, Rule 9 empowers the court to put a party not in possession in immediate possession of land which is subject matter of suit in cases where land liable to pay the revenue to government or the rent to the proprietor of the tenure as the case may be, is subject matter of suit and the party in possession of such land or tenant neglects to pay the government revenue or rent and consequently such land is ordered to be sold, if the other party makes payment of revenue or rent previous to its sale. The object of the Rule is to prevent the sale of subject matter of suit for neglect of a party to the suit to pay revenue or rent during the pendency of suit.
@36

v. Order of deposit of money etc :Section 94 ( e ) r/w. O. XXXIX, Rule 10 empowers the court, where the subject matter of the suit is money or some other thing capable of delivery and the party to the suit admits in clear, unambiguous and unqualified manner that he holds such money or other thing as trustee for another party or that it belongs or is due to other party, to direct a party during the pendency of suit to deposit in
the court or deliver to any party the money or other thing capable of delivery.
@37

vi. Order to deposit Rent or License fees : Order XVA which is applicable to the area comprising under the State of Maharashtra ensures the recovery of amount of arrears of rent
or license fees as well as amount arising during pendency of suit for possession of premises by way of eviction of licensee or lessee therefrom.
It deals with the subject to striking of defence of lessee in a suit
filed by a lessor. The same provides that in any suit by lessor against the lessee or licensor against the licensee as the case may be for his eviction and future mesne profits the defendant shall deposit such amount as the Court may direct on account of arrears up to the date of the order (within such time as the Court may fix) and thereafter continue to deposit in each succeeding month the rent claimed in the suit as the Court may direct. The defendant shall unless otherwise directed to continue to deposit such amount till the decision of the suit and in the event of making default in making the deposit as aforesaid, the Court may subject to the provisions of Subrule 2 strike off the defence.
Considering the provisions of Order XVA and Rule 10 of Order
XXXIX of the Code, Hon'ble Bombay High Court22 observed that, it is well settled law that when specific provisions are made for specific purposes in the CPC, the Courts are expected to take resort of those provisions of law and not to exercise their jurisdiction under some 22 Bharat Petroleum Corporation vs Mr. Thakorbhai Ranchhodji Desai 2003 (6) BomCR 337: 2003 (3) MhLj 617 26
@38

other provision of law. Therefore, when the interim relief can be granted in terms of Order XVA of the Code, the provisions of Rule 10 of Order XXXIX of the Code cannot be invoked.
vii. Restoration of possession :Where  after obtaining temporary injunction by misrepresentation of facts in the garb of injunction the plaintiff dispossess the defendant, in such situation the court in exercise of its powers either under Section 94 or Section 151 of C.P.C. can always pass order of restoration of possession to meet the ends of justice .
@39

viii. Interlocutory Orders under Section 151 C.P.C. :In exercise of its inherent powers which are expressed by S. 151 of the Code, Civil Courts can make any such order as may be necessary for the ends of justice or to prevent abuse of process of the court.
However, only in cases where the circumstances for grant of interim/interlocutory relief do not fall under any of the other
provisions of the Code the Court can invoke its inherent power under s. 151 of the Code of Civil Procedure.
. Other interim/interlocutory orders : Apart from the orders that may be passed by the Civil Courts in exercise of various provisions enumerated above and contained under the title of supplemental proceedings, various other interlocutory / interim orders can be passed by the Civil Courts in exercise of powers
conferred by the Code. Some instances of the same are stated as under 23 Harishchandra Narayan Mourya vs. Rajendraprasad Dargahi Verma : 1997 (1) Bombay CR 28.
@40

i. Stay of suit :Section 10 of the Code provides for res subjudice.
Its object is to prevent the courts of concurrent jurisdiction from simultaneously trying two parallel cases in respect of same matter in issue for avoiding conflicting decisions and for avoiding wastage of court resources. For applicability of the powers to stay a suit vide section 10 of the Court, the order can be passed by the Court suomotu or on application of the party to the suit. However, the conditions specified in the section need to be satisfied.
When it is necessary, having regard to the nature of the suit and controversy involved therein, to stay the proceeding of any suit, and the matter does not fall under any of the provision or the situation is not expressly dealt with by any of the provision, the Court can stay the proceeding of the suit by exercising inherent powers ensured by section 151 of the Code.
In view of provisions of Subrule (1) of Rule 5 of O. XLI of the Code, when an appeal is preferred against the decree or order, that in itself would not operate as a stay to the proceeding in which the decree or order appealed has been passed. However, appellate court can stay such proceeding for any sufficient cause. As per Subrule (2) of Rule 5 of O. XLI of the Code, the Court which passed the decree, if it is appealable, can on application being made therefor, order the execution thereof to be stayed. For exercise of the powers under the provisions of SubRule (1) and (2) the conditions enumerated under subRule (3) thereof shall be satisfied.

1)Pertinently, the order that can be passed under SubRule (2) of Rule 5 of O. XLI of the Code is interim in nature in as much as it applies for a limited period to enable the aggrieved party to approach the appellate Court for seeking relief against the decree passed.

However, it is an exception to the general rule that the interim /
interlocutory orders can be passed during pendency of a suit or
proceeding, as, the order under this provision can be passed after decree in the suit is passed.
@41

ii. Other Orders :It is neither feasible nor practical to enumerate an exhaustive list of interlocutory orders that can be passed in connection with civil proceedings. Illustratively, following orders can be stated as interlocutory orders which the courts deal with in day to day work.
They are, orders on application for hearing during vacation, intervention applications, leave to proceed as an indigent person,  service, substituted service, adding parties, application for transposition, enlargement of time, correction of mistakes in the judgment, permission for withdrawal of amount, adjournment, order for costs, permission to file additional documents, application for inspection of file, return of document, other orders that can be under section 151 of the Code for securing ends of justice etc.. Interim Orders by superior courts – whether have precedential value :
Interim orders have no precedential value and an applicant can
not claim grant of interim relief on the ground that in similar matters .

@42

interim relief has been granted by the Court

24. Appealability of Interim/ interlocutory orders :
Section 104 of the Code provides that the appeal shall lie only against such orders which are enumerated in said provision. No appeal shall lie against any other orders unless it is so specifically provided in the body of the Code or by any other law for the time being in force.
Order XLIII of the Code enumerates the list of orders which are appealable. In view of Section 105 of the Code, other orders are not appealable save as otherwise expressly provided. However, when the decree is appealed, any error, defect or irregularity in any order, affecting the decision of the suit, may be set forth as a ground of objection in the memorandum of appeal.
@43

Conclusion :
Any relief given by the courts, whether temporary or permanent, to the parties to the litigation, is outcome of its orders. Orders of the courts may not always be determining the issues before it finally. In civil proceedings, for the purpose of ensuring ultimate administration of civil justice, courts are bound to grant interim reliefs. So also, until a lis is finally decided, Court need to pass various interlocutory orders.
Two expressions, 'interim reliefs' and 'interlocutory orders' used in the Code can not be differentiated in their contentment. They are so interconnected and interlinked that it is not desirable to distinguish the same based on meaning and purport they carry. In fact, the Code
24)Empire Industries Limited V. Union of India AIR 1986 SC 665 : (1985) 3 SCC 314.
30  
obliges the Courts to ensure that ends of justice are secured. For that  end the Code empowered the Courts to grant various types of interim reliefs and to pass different interlocutory orders. The courts would be failing in their duties if they fail to ensure timely interim reliefs and other orders. This would serve many purposes. It avoids multiplicity of proceedings, safeguards the rights of litigants and ensures the execution of decree to be passed. Thus, the objects of the Code can be served by adhering to its provisions to pass suitable orders not only for
the finality of the lis but for ensuring justice to the litigants, for which principles of natural justice and equity are always guiding factors.
Thank You, 

Comments

Popular posts from this blog

How long a Will is valid after the Death?

SUCCESSION CERTIFICATE

Probate In India: Definition, Importance & Application