Volume 1 Chapter 1 Part L

Chapter 1
PART L.—INCIDENTAL PROCEEDINGS
{(a)Attachment before Judgment, temporary injunctions and
appointment of receiver etc.”}
{The heading is amended vide C.S. No. 84 Rules/II.D4 dated 21.11.2022}

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1. Attachments or arrest before judgment:- If at the time of filing the
plaint, or at any other stage of the suit, an application is made by the plaintiff,
under Order XXXVIII of the Code, for the arrest of the defendant or for the
attachment of his property before judgment, the Court should proceed to
consider the application with reference to the provisions of the Code and the
following instructions.
2. Attachment or arrest before judgment:- Orders for arrest or attachment
before judgment ought not to be made on insufficient grounds. The
circumstances which justify a Court in passing an order of this nature are
distinctly stated in Order XXXVIII of the Code of Civil Procedure. The Court
should, in every such case, be satisfied (Order XXXVIII, Rules 1 and 5) that
the defendant has or is about to dispose of or remove the property from
its jurisdiction or that he has or is about to leave its jurisdiction,
3. Temporary injunction:- It has been noticed that temporary injunctions
are frequently issued ex-parte by subordinate Courts, without realising fully
their consequences. The following instructions in respect of such orders should
therefore be ordinarily followed :—
(i) The Court should scrutinise carefully the plaint, the application and the
affidavit before interfering with the defendants' rights and should satisfy
itself that some recent happenings have justified the interference without
notice to the defendant.

(ii) Court should use the rules in Order XXXIX, Civil Procedure Code, with
great discrimination, and should not overlook the significance of the
word "may" wherever it occurs. It should not treat the exception in
Rule 3 as the normal procedure. Interlocutory injunctions should be
granted ex- parte only in very exceptional circumstances, and only
when the plaintiff can convince the Court that by no reasonable diligence
could he have avoided the necessity of applying behind the
defendants' back.

(iii) Such injunctions, when granted, should be limited to a week or less,

i.e., the minimum time within which a defendant can come before the
Court, assuming that to get rid of the injunctions, he will be prepared to
use the greatest expedition possible.

(iv) The Court should state clearly what acts it has restrained. Vague orders
such as 'Issue of temporary injunctions as prayed' should be avoided.
Where only some of the acts mentioned in the petition need to be
urgently restrained the ex-parte order should be confined to these only.
The plaint or petition should not merely be copied out.

(v) When the defendant appears and files his affidavit, the plaintiff should
be given only a few days to answer it. The contested application should
then he heard, as soon as possible, and if the Judge cannot dispose it
of at once, should, for the term of the adjournment, which should be as
short as possible, either grant an ad interim injunction, or obtain an
undertaking from the defendant not to do any acts complained against.

(vi) After the plaintiff has obtained an interim or ex parte order, the court
should take care to see that he does not abuse the advantage by
resorting to the usual dilatory tactics; such as delay in deposit of
process fees, evasion of service of summons on a pro-forma defendant
interested with the plaintiff in delaying the suit or in other manners.

4. Exparte injunctions:- The above instructions are not intended to restrict the

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discretion of Courts, but every application for an exparte injunction should be

very carefully considered in the light of these instructions and should not be
granted unless sufficiently good grounds are made out.

5. {Appointment of Receiver:- Under Order XL Rule 1 of CPC the Court may

appoint receiver to monitor the status of the property in question as custodial
legis (in custody of law) for proper adjudication of the matter specifying as to
whether receiver shall take actual physical or symbolic possession thereof.}
{Rule 5 inserted vide C.S. No. 84 Rules/II.D4 dated 21.11.2022}

6. {Ensuring satisfaction of decree:- In suit for payment of money, the Court

may in appropriate cases at any stage of the suit demand security from the
defendant to ensure satisfaction of decree exercising the powers under Section
151 CPC}
{Rule 6 inserted vide C.S. No. 84 Rules/II.D4 dated 21.11.2022}

(b) Death, Marriage or Insolvency of Parties.—

Death, Marriage or Insolvency of parties - Abatement.- The procedure to be
followed in the event of death, marriage, or insolvency of parties is laid down in
Order XXII, Civil Procedure Code. Proper steps must be taken to bring the legal
representatives of the person concerned (the Receiver in the case of a person
who is declared an insolvent) on the record within the period of limitation.
Otherwise the suit is liable to abate wholly or partly in certain cases. The
abatement takes place automatically and a formal order of abatement, though
not essential, should be usually recorded. The abatement can be set aside on an
application by the 'aggrieved party, if sufficient cause is shown (Order XXII, Rule
9).
There is no abatement if a party dies after the conclusion of the case
but before judgment. In such cases judgment may be pronounced and will
take effect as though it had been pronounced while the party was alive.
In certain cases, the abatement of a suit as against one defendant
results in the dismissal of the whole suit. Reference may be made in this
connection to I.L.R. X, Lah. 7F.B.

(c) Compromise or Adjustment Of Suits.

Compromise:- Where a Court is satisfied that a claim has been adjusted by
any lawful agreement or compromise or the claim has been satisfied wholly
or in part, the Court shall order such agreement, compromise or satisfaction
to be recorded and shall pass a decree accordingly so far as it relates to the suit,
in cases where the compromise goes beyond the subject matter of the suit, the
directions given in 46- 1-A 240, 244 and I. L. R. 1$ Cal, 485 should be followed in
preparation of decrees.
When a minor is concerned, the Court should consider and record a
finding as to whether the compromise or adjustment is for the benefit of the
minor, and pass an express order granting or refusing leave, for the purpose as
it may think fit.
As to compromises in cases of minors see Chapter 1-M. (d).
As to forms of decrees based on compromises see Chapter 11-B,
paragraph 5.
As to stay of hearing on the ground of compromise see Chapter 1-K,
paragraph 11.
(d) Amendment and Review
Amendment and Review.—When a case is decided on the merits, the Court has
no power to vary the judgment or decree, except by way of amendment under
Sections 151 and 152 or by review under Order XLVII, Civil Pro- cedure Code. The
scope of amendment is very limited, being confined to clerical or arithmetical errors,
accidental slips, etc. Review can be granted only on the grounds specified in Order
XLVII. The words "any other sufficient cause" occurring in Rule 1 of Order XLVII
have been held by their Lordships of the Privy Council to mean "a reason sufficient
on grounds at least analogous to those specified immediately previously." (See I.
L. R. III, Lahore 127-P C.).

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(e) Inherent Powers under Section 151, Civil Procedure Code

Section 151, Civil Procedure Code.—The scope of Section 151, Civil

Procedure Code, is frequently misunderstood and applications are made under
that section, which do not properly fall within its purview. The section is
widely worded to enable Courts to do justice in proper cases, but it cannot be
used so as to over ride the express provisions of Statute. For instance, a suit
which is barred by limitation, cannot be heard in the exercise of inherent
powers under Section 151. But where there is no express provision of law on
a particular point inherent powers may be used in proper cases in the
interests of justice. For instance, it has been held that when an application for
execution is dismissed in default, it may be restored in the interests of justice
on sufficient cause being shown, although there is no express provision of
law for restoration of such an application dismissed in default (I.L.R. II Lahore
66).

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