The interim order of injunction did not revive on restoration of the suit. - if the court intends to revive such interlocutory orders an express order to that effect should be passed.
Citation
CDJ 2004 SC 693
Vareed Jacob vs sosamma Geevarghese
Head Note
Code of Civil Procedure, 1908 - Section 94, Order XXXVIII & Order XXXIX Rule 1 - Interim Orders - Whether there is automatic revival of interlocutory orders with the restoration of the suit unless the circumstances occurring during the interregnum or the orders passed by the court speak to the contrary? - Held -Under Order 38, Rule 1 an extraordinary relief is given to the plaintiff, namely, in appropriate cases where the courts finds a strong prima facie case in favour of the plaintiff and if the Court is satisfied that the defendant is likely to defeat the decree in future as and when it is passed, then the Court shall grant attachment before judgment even before final adjudication of the claim of the plaintiffs, hence it is an extraordinary relief given to the plaintiff by the Court. However, under Order 39 rule 9 the court shall order withdrawal of attachment when the suit is dismissed. Therefore, rule 9 makes it mandatory for the court to lift the attachment at the time of the dismissal of the suit. Such a provision is not there under Order 39 or under Order 40 - The scheme of Order 38 is different from Order 39 or Order 40 - Similarly, Order 21, Rule 57 indicates the duty on the courts to order whether the attachment shall continue or cease on the dismissal of the execution suit - The facts of the present case and the controversy in this case is covered by the provisions of Order 39 and not Order 38.
Para 15 & 16
AS PER HIS LORDSHIP HON'BLE MR. CHIEF JUSTICE V.N. KHARE & HIS LORDSHIP HON'BLE MR.JUSTICE KAPADIA.
The Code of Civil Procedure uses different expressions in relation to incidental proceedings and supplemental proceedings. Incidental proceedings are referred to in Part III of the Code of Civil Procedure whereas Supplement Proceedings are referred to in Part VI thereof - An order to furnish security to produce any property belonging to a defendant and to place the same at the disposal of the Court or order the attachment of any property as also grant of a temporary injunction or appointment of a receiver are supplemental in nature. The effect of such order may be felt even after decree is passed. 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 under Order 38 can be taken benefit of by the decree holder even after a decree is passed. An order of temporary injunction passed in a suit either may merge with a decree of permanent injunction or may have an effect even if a decree is passed, as, for example, for the purpose of determination as regard the status of the parties violating the order of injunction or the right of a transferee whom have purchased the property in disobedience of the order of injunction. The orders passed in supplemental proceedings may have to be treated distinctly as opposed to an order which is ancillary in nature or which has been passed in the incidental proceedings - The interim order of injunction did not revive on restoration of the suit. The Courts, however, would be well-advised keeping in view the controversy is specifically pass an order when the suit is dismissed for default stating when interlocutory orders are vacated and on restoration of the suit, if the court intends to revive such interlocutory orders an express order to that effect should be passed.
Para 6, 11 & 46
AS PER HIS LORDSHIP HON'BLE MR. JUSTICE S.B. SINHA
Cases Referred:
1883 ILR (5) All. 86; 1956 AIR(Pat.) 271; 1978 AIR(AP) 30; 1962 AIR(SC) 527; 1966 AIR(SC) 1899; 1988 AIR(Cal.) 95; 1973 AIR(All.) 67; 1965 AIR(All.) 546; 1976 AIR(All.) 264; 1968 AIR(My.) 238; 1934 AIR(Mad.) 49; 1987 (4) SCC 78; 1994 (4) SCC 225; 1985 (3) SCC 53; 1956 AIR(Pat.) 271; 1935 AIR(Mad.) 365; 1968 AIR(Mys.) 283; 1973 AIR(All.) 67; 1955 AIR(Mys.) 91; 1976 AIR(All.) 264; 1991 AIR(Raj.) 94; 1981 AIR(Pat.) 102; 1975 RLR 234; 1979 RLW 369; 1887 All WN 297; 1986 KLT 301;
Comparative Citations:
2004 (2) KLT 649 (SC), 2005 (2) LW 103, 2004 (2) RCR(Civil) 708, 2004 (2) CivCC 365, 2004 AIR(SC) 3992, 2004(2) ISJ (Banking) 441, 2004 (2) JT 165 (Supp), 2004 ILR(Kar) 3173, 2004 (3) Supreme 637, 2004 (2) WBLR 553, 2004 (2) KantLJ 641, 2004 (6) SCC 378, 2004 (1) ACJ 487,
(Full Bench)
Para 15 & 16
AS PER HIS LORDSHIP HON'BLE MR. CHIEF JUSTICE V.N. KHARE & HIS LORDSHIP HON'BLE MR.JUSTICE KAPADIA.
The Code of Civil Procedure uses different expressions in relation to incidental proceedings and supplemental proceedings. Incidental proceedings are referred to in Part III of the Code of Civil Procedure whereas Supplement Proceedings are referred to in Part VI thereof - An order to furnish security to produce any property belonging to a defendant and to place the same at the disposal of the Court or order the attachment of any property as also grant of a temporary injunction or appointment of a receiver are supplemental in nature. The effect of such order may be felt even after decree is passed. 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 under Order 38 can be taken benefit of by the decree holder even after a decree is passed. An order of temporary injunction passed in a suit either may merge with a decree of permanent injunction or may have an effect even if a decree is passed, as, for example, for the purpose of determination as regard the status of the parties violating the order of injunction or the right of a transferee whom have purchased the property in disobedience of the order of injunction. The orders passed in supplemental proceedings may have to be treated distinctly as opposed to an order which is ancillary in nature or which has been passed in the incidental proceedings - The interim order of injunction did not revive on restoration of the suit. The Courts, however, would be well-advised keeping in view the controversy is specifically pass an order when the suit is dismissed for default stating when interlocutory orders are vacated and on restoration of the suit, if the court intends to revive such interlocutory orders an express order to that effect should be passed.
Para 6, 11 & 46
AS PER HIS LORDSHIP HON'BLE MR. JUSTICE S.B. SINHA
Cases Referred:
1883 ILR (5) All. 86; 1956 AIR(Pat.) 271; 1978 AIR(AP) 30; 1962 AIR(SC) 527; 1966 AIR(SC) 1899; 1988 AIR(Cal.) 95; 1973 AIR(All.) 67; 1965 AIR(All.) 546; 1976 AIR(All.) 264; 1968 AIR(My.) 238; 1934 AIR(Mad.) 49; 1987 (4) SCC 78; 1994 (4) SCC 225; 1985 (3) SCC 53; 1956 AIR(Pat.) 271; 1935 AIR(Mad.) 365; 1968 AIR(Mys.) 283; 1973 AIR(All.) 67; 1955 AIR(Mys.) 91; 1976 AIR(All.) 264; 1991 AIR(Raj.) 94; 1981 AIR(Pat.) 102; 1975 RLR 234; 1979 RLW 369; 1887 All WN 297; 1986 KLT 301;
Comparative Citations:
2004 (2) KLT 649 (SC), 2005 (2) LW 103, 2004 (2) RCR(Civil) 708, 2004 (2) CivCC 365, 2004 AIR(SC) 3992, 2004(2) ISJ (Banking) 441, 2004 (2) JT 165 (Supp), 2004 ILR(Kar) 3173, 2004 (3) Supreme 637, 2004 (2) WBLR 553, 2004 (2) KantLJ 641, 2004 (6) SCC 378, 2004 (1) ACJ 487,
(Full Bench)
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