SUPPLEMENTAL PROCEEDINGS

Khakare VikasAsso. Prof.

Narayanrao Chavan Law College, Nanded, India

S.94. Supplemental Proceedings

• In order to prevent the ends of justice from being, defeated the Court may, if it is to prescribed,—

• (a) issue a 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 orders as may appear to the Court to be just and convenient.

• For such supplemental proceedings application should be made containing required grounds, along with affidavit in support.

• court gives notice to defendant and after considering say, court pass suitable order.

• ORDER XXXVIII-ARREST AND ATTACHMENT BEFORE JUDGMENT

• Arrest before judgment

• This is to prevent any attempt on the part of the defendant to defeat the realisation of the decree that may eventually be passed against him.

R 1 . Where defendant may be called upon to furnish security for appearance

• Where at any stage of a suit, other than a suit of the nature referred to in section 16, clauses (a) to (d), the Court is satisfied, by affidavit or otherwise,—

• (a) that the defendant, with intent to delay the plaintiff, or to avoid any process of the Court or to obstruct or delay the execution of any decree that may be passed against him—

• (i) has absconded or left the local limits of the jurisdiction of the Court, or• (ii) is about to abscond or leave the local limits of the jurisdiction of the Court or• (iii) has disposed off or removed from the local limits of the jurisdiction of the court

his property or any part thereof,• (b) that the defendant is about to leave India under circumstances affording

reasonable probability 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,

• 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:

• Provided that the defendant shall not be arrested if he pays to the officer entrusted with the execution of the warrant any sum specified in the warrant as sufficient to satisfy the plaintiff's claim; and such sum shall be held in deposit by the Court until the suit is disposed of or until the further order of the Court.

R 2 . Security

• (1) Where the defendant fails to show such cause the Court shall order him either to deposit in Court money or other property sufficient answer the claim against him, or to furnish security for his appearance at any time when called upon while the suit is pending and until satisfaction of any decree that may be passed against him in the suit, or make such order as it thinks fit in regard to the sum which may have paid by the defendant under the provision to the last preceding rule.

• (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.

R 4 . Procedure where defendant fails to furnish security or find fresh security

• Where the defendant fails to comply with any order under rule 2 or rule 3, the Court may commit him to the civil prison until the decision of the suit or, where a decree is passed against the defendant, until the decree has been satisfied:

• Provided that no person shall 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:

• Provided also that no person shall be detained in prison under this rule after he has complied with such order.

Attachment before judgment

R 5 . 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.

R 6 . Attachment where cause not shown or security not furnished

• (1) 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, or such portion thereof as appears sufficient to satisfy any decree which may be passed in the suit, be attached.

• (2) Where the defendant shows such cause of furnishes the required security, and the property specified or any portion of it has been attached, the Court shall order the attachment to be withdrawn, or make such other order as it thinks fit.

R 9 . Removal of attachment when security furnished or suit dismissed

• Where an order is made for attachment before judgment, the Court shall order the attachment to be withdrawn when the defendant furnishes the security required, together with security for the cost of the attachment, or when the suit is dismissed.

• R 10 . Attachment before judgment not to affect rights of strangers, nor bar decree-holder from applying for sale—

• Attachment before judgment shall not affect the rights, existing prior to the attachment, of persons not parties to the suit, nor bar any person holding a decree against the defendant from applying for the sale of the property under attachment in execution of such decree.

• 12 . Agricultural produce not attachable before judgment— Nothing in this Order shall be deemed to authorize the plaintiff to apply for the attachment of any agricultural produce in the possession of an agriculturist, or to empower the Court to order the attachment or production of such produce.

• ORDER XXXIX-TEMPORARY INJUNCTIONS AND INTERLOCUTORY ORDERS

• Temporary injunction is an order by which a party to an action is required to do or refrain from doing a particular thing until the suit is disposed of or until further orders of the court.

• A temporary injunction is interim in nature granted on an interlocutory application.

• Either party can make application for temporary injunction.

R 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.

R 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.

• Grant of injunction is a matter of discretion of the court. • This should be exercised judicially and according to well

settled principles. • Court should follow the principle of natural justice.• Plaintiff must show prima facie case, balance of convenience,

and irreparable loss.

Prima facie case

• The court must be satisfied that the applicant has a prima facie case to go to trial i.e. There is a probability of the plaintiff getting the relief asked for by him.

• Plaintiff don't need to prove or establish his case.

Balance of convenience

• The court will first see that there is a bonafide contention between the parties and then on which side in the event of success will lie the balance of convenience if the injunction does not issue.

• Court considers the loss, inconvenience or annoyance to plaintiff if injunction is not granted to that of loss, inconvenience or annoyance to defendant if injunction is granted.

Irreparable loss/injury

• The court must be satisfied that there is likelihood of the plaintiff suffering from an irreparable injury which could not be adequately remedied by damages if the injunction is not granted.

• Injury to property is considered as irreparable injury.• Where permanent injunction can not be granted, temporary

injunction is also not granted.

Ad interim temporary injunction

• Generally court grant injunction only after considering say of opponent (defendant).

• But some time there is urgent need of the time so that plaintiff cannot wait till appearance of the defendant and request for ad interim temporary injunction in the absence of defendant.

• Subject to R. 3 court grant Ad Interim Temporary Injunction if delay defeat the very object of suit.

R 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.

R 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.

R 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 party 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.

Interlocutory orders

• 6 . Power to order interim sale• 7 . Detention, preservation, inspection, etc., of subject-matter

of suit• 9 . When party may be put in immediate possession of land

the subject-matter of suit• 10 . Deposit of money, etc. in Court

• ORDER XL- APPOINTMENT OF RECEIVERS

R 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 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.

• 2 . Remuneration— The Court may by general or special order fix the amount to be paid as remuneration for the services of the receiver.

R 3 . Duties

• Every receiver so appointed shall—• (a) furnish such security (if any) as the Court thinks fit, duly to account

for what he shall receive in respect of the property;• (b) submit his accounts at such periods and in such form as the Court

directs;• (c) pay the amount due from him as the Court directs; and• (d) be responsible for any loss occasioned to the property by his wilful

default or gross negligence.

R 4 . Enforcement of receiver's duties

• Where a receiver—• (a) fails to submit his accounts at such periods and in such form as the Court

directs, or• (b) fails to pay the amount due from him as the Court directs, or• (c) occasions loss to the property by his wilful default or gross negligence, the

Court may direct his property to be attached and may sell such property, and may apply the proceeds to make good any amount found to be due from his or any loss occasioned by him, and shall pay the balance (if any) to the receiver.

R 5 . When Collector may be appointed receiver

• Where the property is land paying revenue to the Government, or land of which the revenue has been assigned or redeemed, and the Court considers that the interests of those concerned will be promoted by the management of the Collector, the Court may, with the consent of the Collector appoint him to be receiver of such property.