Orders Given By A Court Amid The Pendency Of A Proceeding: Interim Orders

It is a well known fact that Civil Procedure Code, 1908 or CPC contains 158 sections and 51 orders. It is a consolidated law and it contains procedural as well as substantial provisions. In this assignment, provisions of “Interim Orders” have been covered. Interim Order is like a temporary order which is passed by a judicial body while a trial or a proceeding is still going on, so as to provide an instant relief or to maintain the status quo of the case. For example, in a suit regarding ownership of a property, court can grant an interim order to prohibit the sale of that property if one party to the suit is trying to sell it of. An interim order remains in existence till the final decision of a case is given by the court. Once a final judgment is passed, the interim order ceases to have an effect.

Introduction

‘Interim’ in its literal meaning stands for ‘for the time being’, ‘in the meantime’, ‘meanwhile’, ‘not final’, ‘temporary’, ‘provisional’, ‘for the moment’, etc. When used as a noun, the word ‘interim’ means ‘intervening’ and as an adjective, it means ‘temporary’ or provisional’. Therefore, it can be said that interim orders are those orders which are passed by a court during the pendency of a suit or a proceeding, which do not serve as a final order, and they do not determine the final substantive rights and liabilities of the parties to the suit. ‘Interlocutory’ is something that DOES NOT decide the cause, but it settles some intervening matter which is in relation to that cause. It could be a decree, a judgment which has been given provisionally during the course of a legal action. After the suit is instituted by the plaintiff and before it is finally disposed of, the court may make such interlocutory orders as may appear to the court to be just and convenient. They are made in order to assist the parties to the suit in the prosecution of the case or in order to protect the subject matter of the suit. Courts are made in order to give justice to people and it must be having all the powers necessary to do what is right and reverse the effect of anything wrong in the course of administration of justice.

Interim orders are required for the protection of rights of the parties during the interval between the commencement of a proceeding till the final adjudication is made. It gives such powers to a court as may be necessary to grant relief. They also prevent any abuse of the process during the pendency of a proceeding. Therefore, interim or interlocutory orders play an important part during the litigation between the parties to a suit.

Payment in court: order XXIV

According to this order, a defendant in a suit for debt or damages, may deposit in court at any stage of the suit, such amount of money as he considers satisfactory in full of the plaintiff’s claim. This provision is only applicable in a suit for debt or damages, and the amount would be given by the defendant in accordance with the plaintiff’s claim, in the court during the litigation, i.e., before the announcement of the final judgment. Notice of the deposit shall be given through the court, by the defendant to the plaintiff, and the amount of the deposit shall (unless the court otherwise directs) be paid to the plaintiff on his application. No interest shall be allowed to the plaintiff on the sum deposited by the defendant. But if such amount is deposited at the stage of final arguments only to save payment of interest, the application can be rejected.If the plaintiff accepts such sum as payment in full satisfaction of his claim, the court shall record his statement to that effect and pronounce the judgment accordingly. But, if the plaintiff accepts such payment as satisfaction in part of his claim, he is entitles to prosecute the suit for whatever balance is left. However, if it is found that the deposit by the defendant was satisfactory to the plaintiff’s claim, the plaintiff shall pay all costs incurred by the defendant after such deposit.

Illustration

i. A owes B Rs.10,000. B sues A for the amount, having made no demand for payment and having no reason to believe that the delay caused by making a demand would place him at a disadvantage. On the plaint being filed, A pays the money into Court, B accepts it in fullsatisfaction of his claim, but the Court should not allow him any costs as the litigation would be groundless on his part.

ii. A sues B to recover Rs.15,000. B deposits Rs. 10,000 in full satisfaction of the plaintiff’s claim. If A accepts the amount as satisfaction in full of his claim, the court shall pronounce the judgment to that effect. But if A accepts the amount as satisfaction in part only of his claim, he may prosecute his suit for the balance. But if the Court ultimately decides that A is entitled only to Rs !0,000, he will have to pay the costs incurred by B after depositing Rs. 10,000 in the court.

Security for costs: order XXV

Applicability: Rule 1

This provision states for the taking of security for the costs of the suit. At any stage of a suit, the Court may, either on the application of the defendant or suo moto, order the plaintiff to give within the time fixed by it, security for the payment of all costs incurred and likely to be incurred by any defendant. Provided that such an order shall be made in all cases in which it appears to the Court that: a sole plaintiff is, or (when there are more plaintiffs than one) that all the plaintiffs are residing out of India; and that such plaintiff does not possesses or that none of such plaintiffs possess any sufficient immovable property within India other than the property in suit.

Failure to furnish security: Rule 2

If the security is not being furnished within the time fixed, the court shall make an order dismissing the suit unless the plaintiff or plaintiffs are permitted to withdraw therefrom. If a suit is dismissed under this rule, the plaintiff may apply for an order to set the dismissal aside and, if it is proved to the satisfaction of the court that he was prevented by any sufficient cause from furnishing the security within the time period permitted, the court shall set aside the dismissal upon such terms as to security, costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.

Commissions: order XXVI

Sections 75 to 78 deal with the powers of the court to issue commissions. The power is discretionary and it may be exercised by the court in order to give justice to the parties. According to section 75, a court may issue commission in order to:

• examine witness
• make local investigation
• adjust accounts
• make partition
• hold investigation
• conduct sale
• perform ministerial act

To examine witness: Sections 76-78; Order 26 Rules 1-8

Evidence by a person as a witness in a case, whether he is a party to the suit or not, is to be taken in a open court and is open to cross-examination. However, if that person unable to attend a certain hearing on the account of infirmity or sickness or the like, court has the power to issue a commission and that person can be examined on such commission. The court may issue a commission for the examination of a person if: (i) any person, residing within the jurisdiction of the court, is from sickness or infirmity unable to attend the court. A commission for examination shall be issued when the witness has given a certificate of a registered medical practitioner as evidence of the sickness or infirmity he is suffering from; or (ii) if he resides beyond the local limits of the jurisdiction of the court; or (iii) if he is about to leave the jurisdiction of the court; or(iv) if he is a government servant and cannot attend without detriment to the public service; or(v) if he is residing out of India and the court is satisfied that his evidence is necessary.

To make local investigation: Rules 9 and 10

In any suit, the court may issue a commission to such a person as it thinks fit, directing him to make local investigation and to report for the purpose of elucidating or clarifying any matter in dispute, or it would ascertain the market value of any property or the amount of any mesne profits or damages or annual net profits. The object of local investigation is obtain evidence which from its very peculiar nature can be taken only from the particular spot. Such evidence enables the court to properly understand and assess the evidence on record and determine and clarify any doubts in its regard. It also helps the court in deciding question in dispute pending before it, e.g., whether the suit premises is really occupied by the tenant or by strangers.

To adjust accounts: Rules 11 and 12

In any suit in which an examination or adjustment of accounts is necessary, the court may issue a commission to such person, as it thinks fit, directing him to make such examination or adjustment. The court, for this purpose, shall issue necessary instructions to the Commissioner. The proceedings and the report (if any) of the Commissioner shall be evidence in the suit.

To make partition: Rules 13 and 14

Where a preliminary decree for partition of immovable property has been passed, the court may issue a commission to such person as it thinks fit, to make a partition or separation according to the rights declared in such decree. The Commissioner shall, after such inquiry as may be necessary, divide the property into the required number of shares and allot them to the parties. He will then prepare a report appointing the share of each party and distinguishing the same by metes and bounds and transmit it to the court. The court shall, after hearing the objections of different parties, make the final allotment.

To hold investigation: Rule 10-A

Where any question arising in a suit involves any scientific investigation which cannot, in the opinion of the court, be conveniently conducted before the court, the court may, if it thinks it necessary or expedient in the interest of justice so to do, issue a commission to such person as it thinks fit, directing him to inquire into such question and report thereon to the court.

To sell property: Rule 10-C

Where, in any suit, it becomes necessary to sell any movable property which is in the court’s custody pending the determination of the suit and which cannot be conveniently preserved, the court may, if, for reasons to be recorded, is of opinion that it is necessary, so as to give justice, issue a commission to such person as it thinks fit, directing him to conduct such sale and report it to the court.

To perform ministerial act: Rule 10-B

Where any question arising in a suit involves the performance of any ministerial act which cannot, in the opinion of the court, be conveniently performed before the court, the court may, if for reasons to be recorded, is of opinion that it is necessary or expedient in the interest of justice so to do, issue a commission to such person as it thinks fit, directing him to perform that ministerial act and report thereon to the court. By the Amendment Act of 1976, Rules 10-A to 10-C have been inserted to provide for issue of commissions for scientific investigation, sale of movable property or performance of a ministerial act. Ministerial work means not the office work of the court but work like accounting, calculation and other work of a like. The Commissioner appointed by the court does not perform any judicial functions.