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CASE NO.:
Appeal (civil) 2634 of 2004
PETITIONER:
VAREED JACOB
RESPONDENT:
SOSAMMA GEEVARGHESE & ORS.
DATE OF JUDGMENT: 21/04/2004
BENCH:
S.B. Sinha.
JUDGMENT:
J U D G M E N T
(@ S.L.P. (CIVIL) NO. 18699 OF 2001)
S.B. SINHA, J :
Leave granted.
The short question involved in this appeal which arises
out of a judgment and order dated 27.7.2001 in C.R.P. No.
2003 of 1998-B passed by the High Court of Kerala at
Ernakulam is as to
whether on restoration of a suit an order
of injunction passed is automatically revived or not.
An order of injunction can be passed under Order 39,
Rules 1 and 2 of the Code of Civil Procedure. Such an order
can also be passed by the Court in exercise of its inherent
jurisdiction in the event the prayer for grant of injunction
does not fall within the scope of Section 94 of the Code of
Civil Procedure read with Order 39, Rules 1 and 2 thereof.
An order of injunction can be granted by the Court only
when there exists any power therefor.
In Morgan Stanley
Mutual Fund Vs. Kartick Das [(1994) 4 SCC 225]
this Court
has held that having regard to the scheme of the Consumer
Protection Act, the consumer courts do not have any power to
issue injunction. The jurisdiction to issue an order of
injunction, appointment of a receiver or to pass an order of
attachment before attachment would, therefore, depend upon
the scheme of the statute and the powers conferred on the
Court thereby.
This may be one of the factors which is
required to be taken into consideration for making a
distinction between a supplemental proceedings and
incidental proceedings.
A court or a tribunal entitled to adjudicate upon an
issue arising in a lis between the parties has the requisite
jurisdiction to pass orders which are incidental thereto so
as to enable it to effectively adjudicate the same. Such a
power of a Court or a Tribunal to do all things necessary to
effectively adjudicate upon the lis need not, in other
words, be specifically conferred by the statute; such power
being ancillary to the power of the court. It is adjunct to
the court’s/tribunal’s power of adjudication.
The Code of Civil Procedure uses different expressions
in relation to incidental proceedings and supplemental
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proceedings.
Incidental proceedings are referred to in Part
III of the Code of Civil Procedure
whereas Supplemental
Proceedings are referred to in Part VI thereof.
Is there any difference between the two types of
proceedings?
A distinction is to be borne in mind keeping in view
the fact that the incidental proceedings are in aid to the
final proceedings. In other words an order passed in the
incidental proceedings will have a direct bearing on the
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.
Such a supplemental proceeding is initiated with a view
to prevent the ends of justice from being defeated.
The
supplemental proceedings may not be taken recourse to 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. There are well-defined
parameters laid down by the Court from time to time as
regards the applicability of the supplemental proceedings.
Incidental proceedings are, however, taken recourse to
in aid of the ultimate decision of the suit which would mean
that any order passed in terms thereof, subject to the rules
prescribed therefor, would have a bearing on the merit of
the matter. Any order passed in aid of the suit are
ancillary powers. Whenever an order is passed by the Court
in exercise of its ancillary power or in the incidental
proceedings, the same may revive on revival of the suit.
But so far as supplemental proceedings are concerned, the
Court may have to pass a fresh order.
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 question must, therefore, be considered having
regard to the aforementioned legal principles in mind. We
may at this juncture notice those decisions wherein it has
been held that the interlocutory order is automatically
revived on restoration of suits.
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In Bankim Chandra and Others Vs. Chandi Prasad [AIR
1956 Patna 271] the Court was concerned with the revival of
an order of stay. It was held, having regard to the scheme
of law laid down in the Code of Civil Procedure that
interlocutory orders like one of ’stay’ are nothing but
ancillary orders and they are all meant to aid and
supplement the ultimate decision arrived at in the main suit
or appeal. Even in such a situation when there is any other
factor on the record or in the order passed to show to the
contrary even an order of stay shall not automatically
revive. This decision, therefore, is an authority for the
proposition that the Code of Civil Procedure lays down two
different schemes, one in relation to the ancillary orders
which would aid and supplement the decisions arrived at in
the main appeal and the one which may not have to do
anything therewith.
In Tavvala Veeraswamy Vs. Pulim Ramanna and Others [AIR
1935 Madras 365]
a Full Bench of the Madras High Court held
that even an order of attachment before judgment would
automatically revive on restoration of a suit.
In that
case, Beesley, CJ speaking for the Full Bench, however,
erroneously proceeded on the basis that an order of
attachment is also an ancillary order and in that view of
the matter held:
"...It does not seem to me reasonable
that the plaintiff in a suit who has got
an attachment before judgment should
have again, after the restoration of the
suit after its dismissal for default, to
apply to the Court for a fresh
attachment and that having done so the
defendant should have to apply to raise
the attachment by producing a surety or
sureties. The common sense view of the
matter is that all ancillary orders
should be restored on the suit’s
restoration without any further
orders."
The question as to
whether an order of attachment is a
supplemental order or not was not at all considered therein.
In Shivaraya and Others Vs. Sharnappa and Others [AIR
1968 Mysore 283], a learned Single Judge followed Bankim
Chandra and Others (supra) and Tavvala Veeraswamy (supra)
which considered such interlocutory orders to have been
passed in exercise of the Court’s ancillary powers.
In Ganesh Prasad Sah Kesari and Another Vs. Lakshmi
Narayan Gupta [(1985) 3 SCC 53], this Court was concerned
with a case as regard the power of the court to extend the
time for depositing rent by the defendant. Interpreting
Section 11A of Bihar Buildings (lease, Rent and Eviction)
Control Act, 1947, it was held that the Court had such
power; differing with the view of the High Court as regard
interpretation of such a provision as directory in stead and
in place of being mandatory.
However, an observation had been made that the Learned
Trial Judge did grant relief to the tenant by refusing to
strike off the defence on an erroneous view that the
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direction did not revive after setting aside of the ex parte
order.
The said observation is obiter in nature and in any
event, no detailed discussions as regard the nature of the
power of the Court under Section 148 of the Code of Civil
Procedure had been made.
The jurisdiction of the court
under Section 148 of the Code of Civil Procedure is an
ancillary power and not a supplementary one.
In Smt. Radhey Bai Vs. Smt. Savitri Sharma [1975 RLR
234], Delhi High Court was concerned with an ancillary power
of a court as would appear from the following observations:
"7...It is, therefore, obvious that on
setting the dismissal aside, the court
has to appoint a day for proceeding with
the suit and not for trying the suit de
novo. This indicates that the further
proceedings in the suit have to start
from the stage and point where they were
pending before the suit was dismissed
and there is no requirement of law that
upon such restoration the entire
proceedings must be reached again.
Consequently on the restoration of a
dismissed suit, all the previous
proceedings and the interim orders
revive and do not require a fresh order
to give them vigour."
In Kishan Lal Vs. Smt. Kamla Devi Sharma [1979 RLW
369], the Court while again dealing with a rent control
matter held that when an order has been passed under Sub Section (3) of Section 13 of the Act as existed at the
relevant time, no fresh order is required to be passed.
In Ulahannan Chacko Vs. Mathai [1986 KLT 301]
the Court
was concerned with an application for amendment of plaint in
relation whereto a contention was raised that the said
application could not have been brought into life as the
appeal was dismissed holding:
"...When restoration of the suit or
appeal is allowed, the parties are to be
restored to the same position in which
they were situated when the court
dismissed the suit or appeal. Then on
restoring the appeal dismissed for
default, the ancillary matters disposed
of in consequence of such dismissal must
also get restored and the consequential
orders passed on dismissal of the suit
or appeal should automatically get
vacated."
In Abdul Hamid Vs. Karim Bux and Others [AIR 1973 All
67], a Full Bench of the Allahabad High Court noticing a
large number of decisions including some of which have been
referred to hereinbefore held:
"17. The language of Order 38, R.9 no
doubt is capable of both the
interpretations but the well-recognised
rule of interpretation is that where the
language is capable of two
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interpretations and where the section of
the Act has received a judicial
construction and the said construction
has long been acted on without any
alteration in the statute, the
interpretation so recognised and acted
on is to be accepted on the principle of
stare decisis because it is the general
maxim that even a point of law has been
settled by decision it forms a precedent
which is not afterwards to be departed
from. The latter part of the rule which
requires that the attachment shall be
removed when the suit is dismissed is
either directory or mandatory. If it is
directory the attachment is removed
automatically in spite of no order of
the Court. If it is mandatory, then the
duty of the Court is to pass an order
and a party cannot be penalised where
the consequences for the dismissal
appear to be the witdrawal of the
attachment before judgment. The Lower
appellate Court in these circumstances
was right in upholding respondent No.
1’s claim based on the transfer in his
favour and rejecting the plaintiff appellant’s contentions."
The question before us, however, had received the
attention of the Court as would appear from a long line of
decisions.
In Chunni Kuar Vs. Dwarka Prasad [1887 All WN 297], it
was held:
"That temporary injunction came to an
end on the passing of the decree, and
nothing has happened to revive or keep
alive the order for the temporary
injunction. Dwarka Prasad was not left
without his remedy. He might have
applied to this Court for an injunction
pending the determination of his appeal.
No such application has been made to
this Court, and therefore, I am of
opinion that Musammat Chunni Kuar was
and is entitled to have the money paid
out of Cour to her and to have this
appeal allowed with Costs. The view I
take is fortified by the judgment in
Sheikh Moheeooddeen Vs. Sheikh Ahmed
Hossein (14 W.R. 384)"
As far back in 1887, the Allhabad High Court while
considering the provisions of Sections 311 of the Old Code
of Civil Procedure which is in pari materia with Order 38
Rule 5 of the Code of Civil Procedure, 1908 and referring to
Chunni Kuar Vs. Dwarka Prasad [1887 All WN 297] noticed a
contention which is in the following terms:
"On the other hand, Mr. Colvin relies
upon the last part of s.488 to show that
an attachment before judgment comes to
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an end "when the suit is dismissed;"
and the learned counsel also lays stress
upon the provisions of s. 490, and
argues that the words of that section
contemplate that it is only when a
decree is given in favour of the
plaintiff that re-attachment in
execution of such decree is dispensed
with, implying that such attachment is
necessary where the suit ended in
dismissal of the plaintiff’s claim. For
this contention the learned counsel also
relies upon the ruling of the learned
Chief Justice in Chunni Kuar Vs. Dwarka
Prasad where it was held that a
temporary injunction under s. 492,
notwithstanding the use of the phrase
"till further orders," comes to an end
on the termination of the suit in which
such injunction was passed, although no
express order had been made by the Court
withdrawing or setting aside such
injunction."
Mahmood, J. agreeing with the said contention observed:
"I am of opinion that this contention
is sound, and that the case last cited,
though relating to temporary injunction,
proceeds upon a principle analogous to
attachments before judgment, both being
ad interim proceedings which naturally
cease to have any force as soon as the
suit itself, in respect of which they
were taken, comes to a close. In other
words, an attachment before judgment
under s.488, like a temporary injunction
under s.492, becomes functus officio as
soon as the suit terminates."
This decision, therefore, is an authority for two
propositions, namely, (i) an order of attachment before
judgment does not entail an automatic revival upon
restoration of a suit which is dismissed for default; and
(ii) for that purpose an order of injunction would be
treated at par with an order of attachment before judgment.
In Gangappa Vs. Boregowda [AIR 1955 Mysore 91], a Full
Bench of the Madras High Court by referring such proceeding
as a supplemental proceeding required for grant of
extraordinary relief as contra-distinguished from an
ancillary order which is granted in the aid of a proceeding,
held:
"10. An attachment before judgment is
in the nature of an interlocutory order.
It is an extra ordinary relief granted
to a plaintiff even before his claim is
adjudicated upon and found to be true
and if a suit is dismissed either for
default or on its merits by the trial
Court and the attachment before judgment
has therefore to cease, he can certainly
have not as much grievance as a person
who has obtained a decree and attached
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property of the judgment-debtor whose
attach property has been questioned and
decided in summary proceedings and which
are made expressly subject to a decision
in a regular suit. Moreover, it cannot
also be urged that all interlocutory
orders like say those passed on
applications for temporary injunction
the operation of which would have to
cease on the dismissal of a suit, would
automatically be revived or can be
deemed to be in force without any
further orders by an appellate court or
by the same Court after the suit is
dismissed. To hold so would lead to
obvious and real difficulties. It is
not also as though the plaintiff in such
a case has no remedy. He could always
apply to the same Court if a suit which
has been dismissed for default is
restored to file or to an appellate
court which has also ample powers to
grant an order of attachment before
judgment under the provisions of S.
107(2), Civil P.C. In any event the
possibility of hardship cannot warrant
the ignoring of the express provisions
of O.38, R.9 by which it is specifically
laid down that an attachment before
judgment shall cease by the dismissal of
a suit."
It will, therefore, be seen that the Court has in that
case also equated the order of injunction with an order of
attachment.
Yet again in Nagar Mahapalika, Lucknow Vs. Ved Prakash
[AIR 1976 All 264] it was held:
"4. As long ago as 1887 a question of
similar nature arose for consideration
before this Court in Chunni Kuar Vs.
Dwarka Prasad (1887 All WN 297). It was
observed therein that an attachment
before judgment like a temporary
injunction becomes functus officio as
soon as the suit terminates. Again, a
question pertaining to attachment before
judgment came up for consideration
before this Court in Ram Chand Vs. Pitam
Mal (1888) ILR 10 All 506. Relying on
Chunni Kuar’s case (supra) that
principle was reiterated with approval.
The other High Courts also considered
this question in a number of cases.
Finally, the question was raised in
Abdul Hamid Vs. Karim Bux before this
Court as to whether on the dismissal of
a suit in default in atttachment before
judgment automatically lapsed and a
fresh attachment was necessary on the
restoration of the suit, or whether on
the restoration of the suit the
attachment previously made is revived or
is survived. This question was referred
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to a Full Bench of the Court. The
majority view was that on the dismissal
of suit in default the attachment before
judgment automatically ceases and a
fresh attachment is necessary on the
restoration of the suit."
In Kanchan Bai Vs. Ketsidas and others [AIR 1991 Raj.
94], it was held:
"6. The only question for consideration
in this application is
whether on the
setting aside of the order of rejection
of the plaint and its remand by the
appellate court, the temporary
injunction issued by the trial Court
stood revived?
It is well settled law
that interlocutory orders which are
meant to aid and supplement the ultimate
decision arrived at in the main suit or
appeal would be ancillary order and such
order would stand revived automatically
on the restoration of the suit. Orders
granting temporary injunction do not aid
and supplement the ultimate decision of
the suits. As such they cannot be said
to be ancillary orders."
In Ranjit Singh Vs. Dr. Sarda Ranjan Prasad Sinha [AIR
1981 Patna 102] following Bankim Chandra (supra), the Patna
High Court holding that an order striking off of tenant’s
defence for non deposit of rent automatically revived, L.M.
Sharma, J. (as learned Chief Justice of India then was),
however, noticed that by restoration of the suit, the order
dated 13.1.1978 whereby an order directing to deposit the
arrears of rent did not revive, stated the law thus:
"The order in regard to striking off
the defence is vitally different from
the order directing the arrears of rent
to be deposited. I, therefore, hold
that in the present case, the order
dated 6.2.1979 revived automatically on
the restoration of the suit and the view
taken by the court below is correct."
The Parliament consciously used two different
expressions ’incidental proceedings’ and ’supplemental
proceedings’ which obviously would carry two different
meanings.
The expression ’ancillary’ means aiding, auxiliary;
subordinate; attendant upon; that which aids or promotes a
proceeding regarded as the principal.
The expression ’supplementary proceeding’ on the other
hand, would mean a separate proceeding in an original
action, in which the court where the action is pending is
called upon to exercise its jurisdiction in the interest of
justice.
The expression ’incidental’ may mean differently in
different contexts. While dealing with a procedural law, it
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may mean proceedings which are procedural in nature but when
it is used in relation to an agreement or the delegated
legislation, it may mean something more; but the distinction
between an incidental proceeding and a supplemental
proceeding being obvious cannot be ignored.
Indisputably, the effect of an order passed under
different provisions of Section 94 of the Code of Civil
Procedure would be different. They have been so legislated
keeping in view different exigencies of circumstances but it
must not be forgotten that the power thereunder is to be
exercised in the interest of justice. The statutory scheme
therefor is that supplemental proceeding should be taken
recourse to only when the interest of justice is required to
be sub-served, although the interlocutory order may not have
anything to do with the ultimate decision of the court.
The consequences of an order of attachment before
judgment as also, an order of injunction can be grave. By
reason of such an order, a right of a party to the lis may
be affected or remained under animated suspension. By reason
of an interlocutory order whether in terms of Order 38,
Order 39 or Order 40, a person’s right to transfer a
property may remain suspended as a result whereof he may
suffer grave injury. When the suit is dismissed for
default, he may exercise his right. If it is to be held
that on restoration of the suit the order of attachment
before judgment or an order, an injunction is automatically
revived, as a result whereof the status of the parties would
be in the same position as on the date of passing of the
initial interlocutory order, they may be proceeded with for
violation of the order of injunction or an order of
attachment before judgment. The right of subsequent
purchaser may also be affected. By reason of taking
recourse to a supplemental proceedings, the rights of the
parties and in some cases the right of even a third party
cannot be allowed to be taken away.
In this case, this Court is not concerned with the
question as to whether substantive changes have been made in
Order 38 Rule 5 by Code of Civil Procedure, 1908 vis-‘-vis
Code of Civil Procedure, 1859. The question is as to
whether the power of the court to pass an order of
attachment before judgment is an ancillary power or a
supplemental power. The provisions of Order 38 and Order 39
have been equated by the court presumably not on the ground
that they provide for different interlocutory reliefs but
having regard to the nature of the proceedings vis-‘-vis the
reliefs which can ultimately be granted. It would also not
be correct to hold that the attachment proceeding is in
effect and substance different from an order of injunction
on the ground that the former is a part of execution
process.
The provisions of Order 38 Rule 9 of the Code of Civil
Procedure, in my considered opinion, are not of much
importance. The rule confers an independent and substantive
statutory right on a defendant to bring it to the notice of
the court that he is in a position to furnish security to
meet the claim of the plaintiff and as such an order of
attachment need not continue. The order of attachment also
comes to an end in terms of the aforementioned provision
when the suit is dismissed. The very nature of an order of
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attachment entails that in the event of dismissal of suit,
the order comes to an end. Such a provision has been made
by the legislature by way of abundant caution. Although it
is of not much importance but we may notice that there
exists a conflict of opinion as regard consequences of an
order of attachment upon reversal of a judgment of dismissal
of suit in appeal, namely, as to whether in the event the
suit is decreed by the appellate court, an order of
attachment would automatically be restored or not.
It is also of some importance that there exists a view
that an order of dismissal of a suit does not render an
order of attachment void ab initio as a sale of property
under order of attachment would be invalid even after the
date of such sale and the attachment is withdrawn.
A converse case may arise when the property is sold
after the suit is dismissed for default and before the same
is restored. Is it possible to take a view that upon
restoration of suit the sale of property under attachment
before judgment becomes invalid? The answer to the said
question must be rendered in the negative. By taking
recourse to the interpretation of the provisions of the
statute, the court cannot say that although such a sale
shall be valid but the order of attachment shall revive.
Such a conclusion by reason of a judge-made law may be an
illogical one.
A construction which preserves the rights of the
parties pending adjudication must be allowed to operate vis-
‘-vis the privilege conferred upon a plaintiff to obtain an
interlocutory order which loses its force by dismissal of
suit and, thus, may not revive, unless expressly directed,
on restoration of the suit.
A suit or a proceeding which is barred by limitation
would oust the jurisdiction of the court to entertain the
same. When a proceeding is barred by limitation, it
culminates in a right to the non-suitor. Such a right can
be curtailed only by express terms of a statute. A statute
may furthermore provide for extension of a period of
limitation in certain situation. The Code of Civil
Procedure is silent as to the effect of revival of the
interlocutory order on restoration of a suit. This case
demonstrates as to how a person for no fault on his part
would suffer prejudice when such a right is being taken
away. Such a provision which would confer jurisdiction of a
court to entertain a proceeding which it otherwise would not
have in terms of the Limitation Act, 1963, in my opinion,
should be strictly construed.
From the decisions rendered by different High Courts,
therefore, the law that emerges is that there exists a
distinction between ancillary orders which are required to
be passed by the court in aid of or supplemental to the
ultimate decision of the Court; as contra distinguished to an
order passed under Part VI of the Code of Civil Procedure in
terms whereof an order is passed in favour of a party to the
lis which may not have a bearing on the ultimate result of
the suit. An interlocutory order passed in a suit may not
also have anything to do with the relief prayed for by the
plaintiff. An order for injunction or appointment of
receiver can be passed even at the instance of the
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defendant. An order which has been obtained by the
defendant may not revive on restoration of the suit.
Supplementary proceedings, thus, envisage that such a power
must be specially conferred upon the Court which are
required to be passed in the interest of justice
irrespective of the fact as to whether the same would
ultimately have any bearing with the reliefs claimed in the
suit or not. In absence of any statutory provisions such a
power cannot be exercised whereas a power which is ancillary
or incidental, can always be exercised by the Court in aid
of and supplemental to the final order that may be passed.
Furthermore, a jurisdiction expressly conferred by a statute
and an inherent power, subject to just exceptions, must be
treated differently.
I am, therefore, of the opinion that 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 to 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.
I respectfully dissent with the opinion of Hon’ble
theChief Justice of India.
I will, therefore, set aside the impugned order and
allow the appeal. No costs.
