ENQUIRIES AND ORDER IN INTERLOCUTORY

APPLICATIONS, TEMPORATY INJUNCTIONS,

ATTACHMENTBEFORE JUDGMENT,
APPOINTMENT OF COMMISSIONERS AND
RECEIVERS

PAPER PRESETNED BY:

G.MANOHARA REDDY,
II ADDITIONAL DISTRICT JUDGE,
KADAPA AT PRODDATUR
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INTERLOCUTORY APPLICATIONS
Interlocutory Application:
Interlocutory Application is not defined in the Civil Procedure Code.
According to Rule 2 (j) of Civil rules of Practice “ interlocutory application “
means an application to the court in any suit, appeal or proceedings already
instituted in such court, other than a proceeding for execution of a decree of order”
Sec 141 CPC miscellaneous proceedings:- The procedure provided in this code in
regard to a suit shall be followed as far as it can be made applicable, in all
proceedings in any court of civil Jurisdiction, including the proceedings under
Order IX but does not include any proceedings under Art 226 of Constitution of
India.
The Civil Rules of Practice- Relevant Rules:
Form of Interlocutory application – Rule 53: Interlocutory applications shall be
headed with the cause title of the plaint, original petition, or appeal as in Form No.
13.
Contents – Rule 54: Except where otherwise provided by these rules or by any law
for the time being in force, an Interlocutory Applications shall state the provision of
law under which it is made and the order prayed for or relief sought in clear and
precise terms. The applications shall be signed by the applicant or his Advocate,
who shall enter the date on which such signature is made. Every application in
contravention of this rule shall be returned for amendment or rejected.
Separate Application for each distinct prayer –Rule55: There shall be separate
application in respect of each distinct relief prayed for. When several reliefs are
combined in one application, the court may direct the applicant to confine the
application only to one of such reliefs unless the reliefs are consequential and to file
a separate application in respect of each of the others.
When the I.A may be rejected – Rule 56: Every application which does not pray
for a substantive order but prays merely that any other application may be
dismissed, and every application which prays for an order which ought to be applied
for on the day fixed for the hearing of any suit, appeal, or matter, may be rejected
with costs.
Proof of facts by affidavit: Rule 60: Any fact required to be proved upon an
interlocutory proceeding shall unless otherwise provided by these rules, or ordered
by the court, be provided by affidavit but the judge may, in any case, direct
evidence to be given orally, and thereupon the evidence shall be recorded, and
exhibits marked, in the same manner as in a suit and lists of the witness and exhibits
shall be prepared and annexed to the Judgment.
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Three days notice: (Rule 58): (1) Unless the court otherwise orders, notice of an
interlocutory application shall be given to the other parties to the suit or matter or
their Advocate, not less than three days before the day appointed for the hearing of
the application.
“interlocutory” means not that decides the cause but which only settles some
intervening matter relating to the cause. After the suit is instituted by the plaintiff
and before it is finally disposed off, the court may make interlocutory orders as may
appear to the court to be just and convenient. The process to execute interlocutory
orders can be traced under section 94 of C.P.C. The detailed procedure has been set
out in the I schedule of the C.P.C. which deals with orders and Rules.
Frequently the court is called upon to make a decision on questions regarding
grant or temporary injunction, receivers and commissions and amendment of
pleadings than other interim orders.
The granting of perpetual injunctions is regulated by the specific Relief act,
while temporary injunctions are regulated by the C.P.C.
TEMPORARY INJUNCTION
Injunctions can be divided in to two types basing on their nature and time.
Basing on the nature the injunction orders can be divided in two types
(1) Prohibitory (2) Mandatory.
Basing on the time injunction can be divided in to two types.
(1) “ Temporary” and (2) “ Permanent”.
Prohibitory injunction is an order of the court restraining a party to do an act.
Mandatory injunction is an order of the court compelling a party to do an act.
Temporary or interim injunction on the other hand restrains a party
temporarily from doing or restraining from doing a specified act and can be granted
for a specified time or till disposal of the suit. It is regulated by the provisions of
order 39 code of civil procedure and it may be granted at any stage of the suit.
Permanent Injunction restrains a party for ever from doing or not doing a
specified act and the same can be granted only on merits at the conclusion of the
trial after hearing both the parties to the suit. It is governed by Sections 38 to 42 of
the Specific Relief act, 1963.
The object of the interlocutory injunction:
Grant of injunction is to meet the ends of justice. Injunction should not be lightly
granted as adversely affects the other side. The grant of injunction is in the nature of
equitable relief and the court has undoubtedly power to impose such terms and
conditions as it thinks fit.
ORDER XXXIX-TEMPORARY INJUNCTIONS AND INTERLOCUTORY
ORDERS:
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Temporary injunctions:
1. Cases in which temporary injunction may be granted- where in any suit it is
proved by affidavit or otherwise-
(a) That any property in dispute in a suit is in danger of being wasted,
damaged or alienated by any party to the suit, or wrongfully sold in a
execution of a decree, or
(b) That the defendant threatens, or intends, to remove or dispose of his
property with a view to defrauding his creditors.
(c) That the defendant threatens to dispossess, the plaintiff or otherwise
cause injury to the plaintiff in relation to any property in dispute in the
suit.
The court may by order grant a temporary injunction to restrain such act,
or make such other order for the purpose of staying and preventing the
wasting, damaging, alienation, sale, removal or disposition of the property or
dispossession of the plaintiff, or otherwise causing injury to the plaintiff in
relation to any property in dispute in the suit as the court thinks fit until the
disposal of the suit or until further orders.
2. Injunction to restrain repetition or continuance of breach-
(1) In any suit for restraining the defendant from committing a breach of
contract or other injury of any kind, whether compensation is claimed in
the suit or not, the plaintiff may, at any time after the commencement of
the suit, and either before or after judgment, apply to the court for a
temporary injunction to restrain the defendant from committing the
breach of contract or injury complained, of, or any breach of contract or
injury of a like kind arising out of the same contract or relating to the
same property or right.
(2) The court may by order grant such injunction, on such terms as to the
duration of the injunction, keeping an account, giving security, or
otherwise, as the court thinks fit.
2A. Consequence of disobedience or breach of injunction-
(1) In the case of disobedience of any injunction granted or other order made
under rule 1 or 2 or breach of any of the terms on which the injunction was
granted or the order made, the court granting the injunction or making the
order, or any court to which the suit or proceeding is transferred, may order
the property of the person guilty of such disobedience or breach to be
attached, and may also order such person to be detained in the civil prison
for a term not exceeding three months, unless in the meantime the court
directs his release.
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(2) No attachment made under this rule shall remain in force for more than one
year, at the end of which time if the disobedience or breach continues, the
property attached may be sold and out of the proceeds, the court may award
such compensation as it thinks fit to the injured party and shall pay the
balance, if any, to the party entitled thereto.

(3) Before granting injunction, court to direct notice to opposite party-

The court shall in all case, except where it appears that the object of granting
the injunction would be defeated by the delay, before granting an injunction,
direct notice of the application for the same to be given to the opposite party:
Provided that, where it is proposed to grant an injunction without giving
notice of the application to the opposite party, the court shall record the
reasons for its opinion that the object of granting the injunction would be
defeated by delay, and require the applicant-
(a) To deliver to the opposite party, or to send to him by registered post,
immediately after the order granting the injunction has been made, a copy
of the application for injunction together with
(i) A copy of the affidavit filed in support of the application;
(ii) A copy of the plaint; and
(iii) Copies of documents on which the applicant relies, and
(b) To file, on the day on which such injunction is granted or on the day
immediately following that day, an affidavit stating that the copies
aforesaid have been so delivered or sent.
3A. Court to dispose of application for injunction within thirty days:-
Where an injunction has been granted without giving notice to the
opposite party, the court shall make an endeavour to finally dispose of the
application within thirty day from the date on which the injunction was
granted, and where it is unable so to do, it shall record its reasons for such
inability.
IN THE STATE OF ANDHRA PRADESH
3A. In any case where a temporary injunction is granted the court may, at the time
of the order, or at any time during the pendency of the injunction, call upon the
applicant to furnish security for the amount of damages that the court may
determine as payable by the party obtaining the injunction to the other party as
compensation for any injury or loss that may be sustained by the letter by reason of
the injunction.
3B. The court shall on application made after the disposal of the suit, determine the
amount payable under rule 3A and make an order awarding it to the applicant.
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4. Order for injunction may be discharged, varied or set aside:-

Any order for an injunction may be discharged, or varied, or set aside by the court,
on application made thereto by any party dissatisfied with such order:
Provided that if in an application for temporary injunction or in any affidavit
support such application a part has knowingly made a false or misleading statement
in relation to a material particular and the injunction was granted without giving
notice to the opposite party, the court shall vacate the injunction unless, for reasons
to be recorded, it considers that it is not necessary so to do in the interests of justice:
Provided further that where an order for injunction has been passed after giving to a
party an opportunity of being heard, the order shall not be discharged, varied or set
aside on the application of that party except where such discharge, variation or
setting aside has been necessitated by a change in the circumstances, or unless the
court is satisfied that the order has caused under hardship to that party.
Principles governing grant of ad-interim injunction:
Prima Facie case:
“Prima facie case” means that the Court should be satisfied that there is a
serious question to be tried at the hearing, and there is a probability of
plaintiff obtaining the relief at the conclusion of the trial on the basis of
the material placed before the court. “Prima facie case” is a substantial
question raised bonafidely which needs investigation and a decision on
merits. The court, at the initial stage, cannot insist upon a full proof case
warranting an eventual decree. If a fair question is raised for
determination, it should be taken that a prima facie case is established.
The real thing to be seen is that the plaintiff’s claim is not frivolous or
vexatious.
Balance of convenience:
The applicant must prove that the Balance of convenience is in his
favour. The Applicant must prove that if injunction is not granted
hardship will cause to him and if injunction is granted no hardship will
cause to the other party/ Defendant.
Irreparable Injury:
Irreparable injury means the injury which can not be compensated in-
terms of money. The Plaintiff/ Applicant must prove that if injunction is
not granted it will cause irreparable loss to him from an expected act of
the other party.

Conclusion:
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Injunction means ‘It is an order of court by which an individual is

required to perform, or is restrained from performing, a particular act. It
is judicial process. The courts should exercise their power to issue
injunctions judiciously, and only when necessity exists.
The Hon’ble Supreme Court was pleased to issue guidelines to the trial courts in
Ramrameshwari Devi & Ors vs Nirmala Devi & Ors on 4 July, 2011. ( Civil
Appeal Nos. 4912 – 4913)
The courts should be extremely careful and cautious in granting ex-parte ad interim
injunctions or stay orders. Ordinarily short notice should be issued to the defendants
or respondents and only after hearing concerned parties appropriate orders should
be passed.
Litigants who obtained ex-parte ad interim injunction on the strength of false
pleadings and forged documents should be adequately punished. No one should be
allowed to abuse the process of the court.
The principle of restitution be fully applied in a pragmatic manner in order to do
real and substantial justice.
Every case emanates from a human or a commercial problem and the Court must
make serious endeavour to resolve the problem within the framework of law and in
accordance with the well settled principles of law and justice.
If in a given case, ex parte injunction is granted, then the said application for grant
of injunction should be disposed of on merits, after hearing both sides as
expeditiously as may be possible on a priority basis and undue adjournments should
be avoided.
At the time of filing of the plaint, the trial court should prepare complete schedule
and fix dates for all the stages of the suit, right from filing of the written statement
till pronouncement of judgment and the courts should strictly adhere to the said
dates and the said time table as far as possible. If any interlocutory application is
filed then the same be disposed of in between the said dates of hearings fixed in the
said suit itself so that the date fixed for the main suit may not be disturbed.
Important citations deciding injunction petitions:
(1) Colgate Palmolive (India) Ltd VS. Hindustan Lever Ltd., AIR 1999 SC
3105.
(2)DALPATKUMAR AND OTHERS VS. PRAHALAD SINGH AND
OTHERS reported IN 1992 (1) SCC 719.
(3) DORAB CAWASJI WARDEN VS COOMI SORAB WARDEN AND
OTHERS reported in 1990 (2) SCC 117.
(4)GLAXO SMITHKLINE CONSUMER HEALTHCARE LIMITED,
REGISTERED OFFICE, GRGAON THROUGH ITS MANAGING
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DIRECTOR AND OTHERS VS. ALL STORES THROUGH ITS

PROPRIETOR S.M. ABDUL GANI reported in 2009 (8) MLJ 845.
(5) MARTIN BURN LTD., vs R.N. BANERJEE reported in AIR 1958 SC 79.
(6) Gujarat Electricity Board, Gandhinagar v. Maheshkumar and Co.,
Ahmedabad (1995(5) SCC 545.
The discretion however should be exercised reasonably, Judiciously and on sound
legal principles.
Relevant legal provisions from Civil Procedure code:
Sec.94 CPC – Supplementary proceedings: In order to prevent the ends of Justice
from being defeated the court may, if it is so prescribed-
(a) Issue warrant to arrest the defendant and bring him before the court to show
cause why he should not give security for his appearance, and if he fails to
comply with any order for security commit him to the civil prison;
(b) Direct the defendant to furnish security to produce any property belonging to
him and to place the same at the disposal of the court or order the attachment
of any property;
(c) Grant a temporary injunction and in case of disobedience commit the person
guilty thereof to the civil prison and order that his property be attached and
sold;
(d) Appoint a receiver of any property and enforce the performance of his duties
by attaching and selling his property;
(e) Make such other interlocutory order as may appear to the court to be just and
convenient.
SECTION 95 C.P.C
1) Where, in any suit in which an arrest or attachment has been effected or a
temporary injunction granted under the last preceding section,
(a) It appears to the Court that such arrest, attachment or injunction was
applied for an insufficient grounds; or
(b) The suit of the plaintiff fails and it appears to the court that there was no
reasonable or probable ground for instituting the same,
The defendant may apply to the court, and the court may, upon such
application, award against the plaintiff by its order such amount, not exceeding
(Fifty thousand rupees), as it deems a reasonable compensation to the defendant for
(the expense or injury(including injury to reputation) caused to him):
Provided that a court shall not award, under this section, an amount exceeding
the limits of its pecuniary jurisdiction.
2) An order determining any such application shall bar any suit for
compensation in respect of such arrest, attachment or injunction.
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Attachment before Judgment

Order XXXVIII Rule 5 of the Code reads as under:
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.
As far as the mode of making an attachment before Judgment it shall be in
the same manner as prescribed for the attachment of property in execution of
a decree. It would mean that the provision contained in order 21 Rule 54
C.P.C. has to be followed.
As per the provisions of Order 38 Rule (8) where any claim is preferred
to the property attached before Judgment, such claim shall be adjudicated in
the same manner as provided under Order 21 Rule 58 of C.P.C.
The court can pass conditional order of attachment even before the
notice and if the defendant fails to show cause why he need not furnish
security the court can order the conditional attachment be made absolute.
Attachment before Judgment can also be ordered in respect of the
property situate outside the jurisdiction of the court in such a case the
procedure under Section 136 of C.P.C. has to be followed. An order of
attachment passed under Order 38 of the Code of Civil Procedure would be
operative even after the decree is passed. Such an order of attachment passed
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under Order 38 can be taken benefit of by the decree holder even after a
decree is passed.
Important citations under order XXXVIII Rule 5:
(1) Nandipati Rami Reddi V.Nandipati Padma Reddy AIR 1978 AP 30
(2) SARDAR GOVINDRAO MAHADIK & ANR VS. DEVI SAHAI &
ORS. Reported in 1982 SCC (1) 237.
(3) Nancy John Lyndon v. Prabhati Lal Chow-dhury reported in
1987(4) SCC 78.
(4) Vareed Jacob vs Sosamma Geevarghese & ors reported in 2004 Law
suit (SC) 509.
(5) Raman Tech. & Process Engg. Co., v. Solanki Traders reported in
(2008) 2 SCC 302
According to section 64 of the code of civil procedure “ 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”.
According to Under order XXXVIII rule 11 (A) sub rule (2) of C.P.C.
which provides that attachment before Judgment in a suit which is
dismissed for default shall not be revived merely because by reason of the
fact that the order for the dismissal of the suit for default has been set
aside and the suit has been restored.
APPOINTMENT OF ADVOCATE-COMMISSIONER
An Advocate commissioner can be appointed under Order XXVI Rule 9 of the
Code of Civil Procedure 1908 to conduct local investigation for the purpose of
elucidating any matter in dispute.
Section 75. Power of Court to issue commissions:
Subject to such conditions and limitations as may be prescribed, the court may
issue a commission:-
a) To examine any person;
b) To make a local investigation;
c) To examine or adjust accounts; or
d) To make a partition;
e) To held a scientific, technical, or expert investigation;
f) To conduct sale of property which is subject to speedy and natural decay
And which is in the custody of the court pending the determination of the
suit;
g) To perform any ministerial act”
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In Sarala Jain and others vs. Sangu Gangadhar in CRP 5837/ 2015 our
Hon’ble High Court held that to appoint an advocate commissioner, court
has to keep in mind the following:
1) Total pleadings of both parties;
2) Relief claimed in suit;
3) Appointment of advocate commissioner for specific purpose at
interlocutory stage shall not amount to grant pre-trial decree; and
4) Necessity to appoint advocate commissioner to decide real controversy
between parties.
It is not the business of the court to collect evidence in favour of one
party:-
In Padam Sen and another vs. The State of U.P. AIR 1961 SC 218, the
Hon’ble Supreme Court has held that court has no inherent power under
section 151 to appoint an Advocate –Commissioner to seize account
books in the possession of the plaintiff, upon an application by the
defendant that he has apprehension that they would be tampered with.
The Hon’ble Apex Court further held that the court cannot seize them
forcibly by appointing an Advocate-Commissioner, but it can summon
them and if not produced, it can penalise the party and also draw adverse
presumption against him. If the documents are forged, while in the
possession of the plaintiff, the defendant can prove the forgeries and
dispute the entries. The Hon’ble Supreme Court has categorically
ruled that it is not the business of the court to collect evidence in
favour of one party.
Appointment of Receivers
Legal Provisions from Civil Procedure Code.
Or 40 Rule 1- Appointment of Receivers
(1) Where it appears to the Court to be just and convenient, the Court may by
order-
(a) Appointment a receiver of any property, whether before or after decree;
(b) Remove any person from the possession or custody of the property;
(c) Commit the same to the possession, custody or management of the receiver;
and
(d) Confer upon the receiver all such powers, as to bringing and defending suits
and for the realization, management, protection, preservation and
improvement of the property, the collection of the rents and profits thereof,
the application and disposal of such rents and profits, and the execution of
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documents as the owner himself has, or such those powers as the Court
thinks fit.
(2) Nothing in this rule shall authorize the court to remove from the possession or
custody of property any person whom any party to the suit has not a present
right so to remove.
Relevant Civil Rules of Practice:-
Rules 286 to 293 are the ancillary provisions to the to Order XXXX of
C.P.C.
Who is a Receiver:- A receiver is an impartial person appointed by the
Court to collect and receive, pending the proceedings, the rents, issues and profits of
land, or personal estate, which it does not seem reasonable to the Court that either
party should collect or receive, or for enabling the same to be distributed among the
persons entitled.
In Krishnaswamy Chetty v. Tangavelu Chetty reported in AIR 1955 Mad
430 for appointment of receiver it was held that following five requirements have to
be fulfilled:
 The appointment of a receiver pending a suit is matter resting in the
discretion of the court.
 The court should not appoint a receiver except upon proof by the plaintiff
that prima facie he has a very excellent chance of succeeding in the suit.
 Not only the plaintiff must show a case of adverse and conflicting claims to
property, but, he must show some emergency or danger or loss demanding
immediate action and of his own right he must be reasonably clear and free
from doubt. The element of danger is an important consideration.
 An order appointing a receiver will not be made where it has the effect of
depriving a defendant of ‘de facto’ possession since that might cause
irreparable wrong. It would be different where the property is shown to be
‘in medio’, that is to say, in the enjoyment of no one, and
The Court, on the application made for the appointment of a receiver, looks
to the conduct of the party who makes the application and will usually refuse to
interfere unless his conduct has been free from blame.
Relevant Citations:
1.K. Mangamma vs. K. Brahma Reddy 1989 (1) LS 30.
2. Chelikam Rajamma vs. Padilete Venkataswamy Reddy 1993 (2) ALT 154
AMENDMENT OF PLEADINGS: UNDER ORDER VI RULE 17 CPC
The Court may at any stage of the proceedings allow either party to alter or
amend his pleadings in such manner and on such terms as may be just, and all such
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amendments shall be made as may be necessary for the purpose of determining the
real questions in controversy between the parties.
Provided that no application for amendment shall be allowed after the trial has
commenced, unless the court comes to the conclusion that inspite of due diligence,
the party could not have raised the matter before the commencement of trial.
As per the Judgment of Ajendraprasadji N. Pande and another v Swami
Keshavprakeshdasji N. and others reported in 2007 (2) ALD 93 (SC). In which their
Lordships held that date of settlement of issues is the date of commencement of
trial by referring the Judgment in (Kailash v. Nankhu and others 2005(3) ALD
102 (SC))
As per the Judgment of Hon’ble Supreme Court in Ramniranjan Kajaria vs.
Sheo Prakash Kajaria and others which was reported in 2016(1) ALD 79 (SC) in
which their Lordships rejected the application for amendment withdrawing
admission made in written statement on relinquishment of claim to suit
property by defendants.

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