Alange’s Law Classes 1 Judicial Examination Seminar 2021

ALANGE’S LAW CLASSES, MAHARASHTRA

Interim Orders :-
Commission (Sec. 75 and Order 26) :-
According to Sec.75, the Court may issue a commission for any of the following
purposes :-
1) To examine witnesses,
2) To make local investigation,
3) To examine accounts,
4) To make partition,
5) To hold scientific investigation,
6) To conduct sale or (Through Commission),
7) To perform a ministerial act or work.
Ministerial work means not the office work of the Court but the work like
accounting, calculation and other work of a like nature which Courts are not likely to take
up without unnecessary waste of time.
Powers of Commissioners:-
The commissioner may:-
1) Summon and procure the attendance of parties and their witnesses and examine
them.
2) Call for and examine documents.
3) Enter into any land or building mentioned in the order.
4) Proceed ex-party if the parties do not appear before him inspite of the Court’s order.
Expenses :-
The Court may order the parties requiring the commission to deposit the necessary
expenses within the fixed period.

Commissions issued at the instance of Foreign Courts:-

If a High Court is satisfied that a Foreign Court wishes to obtain the evidence of a
witness residing within its appellate jurisdiction in a proceeding of a Civil Nature, it may
issue a commission for the examination of such witness.
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Court Commissioner cannot be appointed to Collect Evidence:- Generally for

collection of evidence like showing actual possession of land etc. Court Commissioner
cannot be appointed. Thus parties must prove such facts by adducing oral and
documentary evidence.
Dhondiram Nivrutti Pawar and Ors. Vs. Laxman Khashaba Pawar and Ors. Citation:
2018(2) MH L J 255.
There is nothing to be elucidated by appointment of 'Court Commissioner', as it is for
the Respondents-Plaintiffs to prove the existence of the plots and also the water chambers
and they can very well do so by producing necessary documentary evidence on record; like
the 'N.A. Permission' obtained for making of the plots and they can also prove separate
water chambers for such plots by producing 'Water Bills', or, the documents showing that
such separate water chambers were obtained. They cannot seek appointment of 'Court
Commissioner' for the purpose of proving their case and for collection of evidence.
 ARREST BEFORE JUDGEMENT(Order 38, Rule 1 to 4)
Object :-
Generally a creditor having a claim against his debtor has first to obtain a decree
against him and then execute the said decree by having him arrested or his property
attached in execution of decree.
Under the special circumstances, the creditor can move for the arrest of the debtor
or for the attachment of his property even before the judgment. The object is to prevent any
attempt on the part of the Defendant to defeat the execution of the decree that may be
passed against him.
Grounds :-
Where, at any stage of the suit, the Court is satisfied, either by affidavit or otherwise:
1) That the Defendant with intent to delay the Plaintiff or to avoid any process of Court
or to obstruct or delay the execution of any decree that may be passed against him -
a) Has absconded or left the local limits of the jurisdiction of the Court.
b) Is about to abscond or leave the local limits of the jurisdiction of the Court
or
c) Has disposed off or removed from the local limits of the jurisdiction of the
Court his property or
2) That the Defendant is about to leave India under the circumstances that the Plaintiff
will or may thereby be obstructed or delayed in the execution of any decree that may
be passed against the Defendant in the suit.
Alange’s Law Classes 3 Judicial Examination Seminar 2021

The Court may issue a warrant to arrest the Defendant and bring him before the
Court to show cause why he should not furnish security for his appearance.
The Defendant shall not be arrested if he pays to the officer executing warrant any
sum specified in the warrant as sufficient to satisfy the Plaintiff’s claim.
Security :-
1) When the Defendant fails to show cause why he should not furnish security for his
appearance, the Court shall order him either to deposit in Court money or other
property sufficient to answer the claim against him or to furnish security for his
appearance at any time when called upon.
2) Every surety for the appearance of a Defendant shall bind himself, in default of such
appearance, to pay any sum of money which the Defendant may be ordered to pay
in the suit.
3) Where the Defendant fails to furnish security or find fresh security after the original
surety has been discharged from his obligation by the Court, the Court may commit
him to civil prison until the decision of the suit or where a decree is passed against
him, until the decree has been executed.
 ATTACHMENT BEFORE JUDGEMENT (Order 38 Rule 5 to 12)
Object :-
The primary object for attachment before judgment is to prevent any attempt on the
part of the Defendant to defeat realisation of decree that may be passed against him.
Grounds :-
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 off of the whole or any part of his property or
b) is about the 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 to appear and
show – cause why he should not furnish security.
Where the Defendant fails to show-cause why he should not furnish security or fails
to furnish the security required within the time fixed by the Court, the Court may order that
the property specified be attached.
Alange’s Law Classes 4 Judicial Examination Seminar 2021

Other Provisions :-
1) The Court cannot order the attachment of any agricultural produce in possession of
an agriculturist.
2) The attachment shall be made in the manner provided for the attachment of property
in execution of a decree.
3) Where any claim is preferred to property attached before judgment, such claim shall
be adjudicated upon.
4) An attachment before judgment does not affect the rights of persons, existing prior
to the attachment, if they are not parties to the suit.
5) Where the property is under attachment and a decree is subsequently passed in
favour of the Plaintiff, it is not necessary to apply for fresh attachment of the
property in execution.
6) An order of attachment will be withdrawn if the Defendant furnishes security or the
suit is dismissed.

 TEMPORARY INJUNCTIONS (Order 39 Rule 1 to 5)

Meaning of Injunction:-
An injunction is a judicial process whereby a party is required to do, or to refrain
from doing, any particular act.
Kinds of Injunction:-
There are two kinds:-
1) Permanent Injunction or Perpetual Injunction:-
A permanent injunction restrains a party forever from doing the specified act and
can be granted only on merits at the conclusion of the trial after hearing both the parties to
the suit.
2) Temporary Injunction :-
A temporary injunction restrains a party temporarily from doing the specified act
and can be granted only until the disposal of the suit or until the further orders of the Court.
Alange’s Law Classes 5 Judicial Examination Seminar 2021

Differences
Temporary Injunction Perpetual Injunction

1·For a specified time and may be granted at 1·By the decree of the Court, by the
any point during the suit. examination on merits of the case.

2·Order 39 (Rules 1 to 5) of CPC governs 2·Sections 38 to 42 of SRA governs

temporary injunctions. perpetual Injunctions.

3·Is Final, Conclusive and Long Run.

3·Is non-conclusive and short run.

4·Focuses on the Plaintiff as well as the

4·May only focus on the Plaintiff side. Defendant.

5·May be revoked by the Court 5·Is non-revocable by the Court, though

appealable.

Object of Temporary Injunction :-

A primary object of granting temporary injunction is to maintain and preserve
status-quo at the time of institution of the proceedings and to prevent any change in it until
the final determination of the suit.
Temporary Injunction may be granted by the Court at any stage of the proceedings.
Grounds :-
Temporary injunction may be granted by the Court when it is proved by affidavit or
otherwise, at any stage of the suit :-
1) Where 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.
2) Where the Defendant threatens or intends to remove or dispose off his property with
a view to defrauding his creditors.
3) Where the Defendant threatens to dispossess the Plaintiff or otherwise cause injury
to the Plaintiff in relation to any property in dispute in the suit.
4) Where the Defendant is about to commit a breach of contract or other injury of any
kind.
5) Where the Court is of opinion that interest of justice requires.
Alange’s Law Classes 6 Judicial Examination Seminar 2021

Principles Governing Temporary Injunction :-

The power to grant temporary injunction is in the discretion of the Court. This
discretion should be exercised reasonably, judicially and on sound legal principles.
Generally before granting the temporary injunction, the Court must be satisfied
about the following aspects :-
1) Prima-facie Case :-
The applicant must make out a prima-facie case in support of the right claimed by
him. The Court must be satisfied that there is a bonafied dispute raised by the applicant and
on the facts before the Court there is a probability of the applicant being entitled to the
relief claimed by him.
2) Irreparable injury :-
The applicant must further satisfy the Court that he will suffer irreparable injury, if
the injunction as prayed is not granted and that there is no other remedy open to him by
which he can protect himself from the consequences of apprehended injury.
3) Balance of Convenience:-
The balance of convenience must be in favour of the applicant. The Court must be
satisfied that the comparative mischief or inconvenience which is likely to be caused to the
applicant by withholding the injunction will be greater than which is likely to be caused to
the opposite party by granting it.
Notice:-
Before granting an injunction, the Court shall give notice to the opposite party
expect where it appears that the object of granting Temporary injunction would be defeated
by the delay.
When an ex-parte injunction is granted, the Court has to record reasons and the
Court shall order the applicant to send a copy of the application and other documents
immediately to the opposite party. The Court shall make disposal of such application within
30 days from the date on which the ex-parte injunction was granted otherwise the reasons
are to be recorded.
Disobedience or breach of injunction:-
For disobedience or breach of an order of injunction issued by the Court, the penalty
may be either arrest or attachment of the property of the opposite party who has committed
such breach or disobedience.
The detention in Civil prison shall not exceed three months and the attachment of
property shall not remain enforce for more than one year. If the disobedience or breach
Alange’s Law Classes 7 Judicial Examination Seminar 2021

continues, the property attached may be sold and out of the proceeds, the Court may award
reasonable compensation to the injured party.
Consequence of disobedience or breach of injunction (Rule 2A)
(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.
(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.

 RECEIVER (Order 40)

Definition:-
The term Receiver has not been defined in Civil Procedure Code but he 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.
Appointment of Receiver:-
Where it appears to the Court to be just and convenient may appoint a receiver.
The following principles must be taken in to consideration before a receiver is
appointed:-
1) The appointment is a discretionary power of Court.
2) The object is preservation of the property pending suit.
3) A receiver should not be appointed unless the Plaintiff proves prima-facie case.
4) An order appointing receiver will not be made where it has the effect of depriving
the Defendant of a defacto possession.
5) The Court should look at the conduct of the party who makes an application. He
must come with clean hands.
Where it appears to the Court to be just and convenient, the Court may by order: :-
a) Appoint a receiver of any property whether before or after decree.
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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 confer upon the receiver necessary powers.
Powers of Receiver:-
A Receiver is an officer or representative of Court and he functions under its
directions. The Court may confer upon the receiver any of the following powers:-
1) To institute and defend suits.
2) To realize, manage, protect, preserve and improve the property.
3) To collect, apply and dispose of the rents and profits.
4) To execute documents like owner and
5) Such other powers as the Court thinks fit.
The Court may by order fix the amount to be paid as remuneration for the service
of the receiver.
Duties of Receiver:-
Every receiver shall:-
1) Furnish security as the Court directs, duly to account for what he shall receive in
respect of the property.
2) Submit his accounts at such periods in such form as the Court directs.
3) Pay the amount due from him as the Court directs.
4) Be responsible for any loss occasioned to the property by his willful default or gross
negligence.
Liabilities of Receiver:-
Where a Receiver:-
1) Fails to submit his accounts or
2) Fails to pay the amount or
3) Occasions loss to the property by his willful default or gross negligence,
The Court may direct his property to be attached and may sale and apply the
proceeds to make good the loss and shall pay the balance if any to the receiver.