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TMI Blog2004 (4) TMI 571X X X X Extracts X X X X X X X X Extracts X X X X ..... 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/tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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. 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 interloc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgment. 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 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 orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 contradistinguished 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 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 abs ..... X X X X Extracts X X X X X X X X Extracts X X X X
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