The effectiveness of interim measures for injunctions and attachment under CPC, 1908

Nishant Rewalia , Yashodhra Singh

January 5, 2024

The effectiveness of Interim Measures for Injunctions and Attachment under CPC, 1908

Interim measures in civil litigation refer to temporary legal remedies that a court can order to preserve the rights of parties during the course of a legal proceeding. These measures include injunctions, attachment, etc. that aim to prevent irreparable harm or loss to the parties before the final resolution of a case. The Civil Procedure Code, 1908 (“CPC”) provides for these interim measures in various stages of civil litigation, but the effectiveness of these measures remains a matter of debate.

Black’s Law Dictionary defines “Interim” as “in the meantime; meanwhile”. Accordingly, interim or interlocutory orders are orders made by a court while a lawsuit is pending but before the parties actual rights and obligations with regard to the case's subject matter have been determined. “The court may issue interlocutory orders that it deems to be just and practical after the plaintiff files a suit and before it is ultimately resolved.”[1] They are created either for the aim of protecting the lawsuit's subject matter or to aid the parties in the case's prosecution. For example, if the lawsuit involves the demolition of a building, an interim order may be made to halt the work and maintain status quo until a final decision is made regarding the property.

Since courts are set up to administer justice, they should have all the authority necessary to right the wrongs and prevent future ones while doing so. Between the start of the proceedings and the decision at hand, interim orders are required to deal with issues and safeguard the parties’ rights. They give the court the ability to dispense any relief or issue any orders that may be required, just, or equitable. Additionally, they stop any abuse of the legal system while the case is pending.

“The Latin proverb Actus curiae neminem gravabit—which translates to “an act of the court shall prejudice no one[2]—best explains the justification for such court decrees. Therefore, the court may issue an interim injunction to guarantee that none of the parties interests are compromised. “The Court's directive largely determines the type of the order, and on this basis, they may be categorised as follows:

  • Restraining orders, also known as injunction orders and stay orders, prevent either party from conducting themselves in a specific way while the civil case is pending. These were crucially enforced by the court to avoid scenarios in which one party would incur injury as a result of the other party's act, which was the subject of the dispute, and
  • Directive orders are passed to act in a specific way up until the trial is over or until further directions are given. If the non-continuation of the act would injure the other party, these may be passed.” [3]

Section 151 of the CPC lists the inherent powers of the courts, which the court may utilise to uphold the rule of law and avoid misuse of the legal system.[4] Courts have the authority to issue temporary orders with the primary goal of preventing injustice to the innocent. The Supreme Court's interest in protecting justice is demonstrated by the fact that no organ has the authority to ignore the provisions of Section 151 of the Code due to a superior role or procedure. “In order to prevent any abuse of the court system or process, the court may use its inherent powers to grant interim orders.”[5] The purpose of the court is to uphold justice, and one aspect of this can be observed in the way the court issues temporary orders.

An "injunction" is a legal remedy that forbids somebody from carrying out a specific action or orders them to make right some wrong or harm. It is known as a restrictive injunction in the first instance and an obligatory injunction in the second. Injunctions can be either permanent (i.e., those determining and concluding the rights of the parties in a case) or temporary, interim, or interlocutory (i.e., orders until the hearing of an action or additional orders).

Sections 94 and 95, as well as Orders XXXVIII  and XXXIX, of the CPC regulate injunctions in the CPC.[6] According to Sections 94 and 95 of the CPC, rules must be developed and imposed under Order XXXIX in order for a court to order injunctive relief in a particular situation.[7] “Ex parte ad interim and permanent injunctions”[8] are covered by Order XXXIX Rules (1) and (2), whereas interim measures which could either be interim injunctions or not are covered by Order XXXVIII, particularly under its Rule 5.

As per Order XXXVIII Rule 5 of the CPC, “a person seeking such relief must satisfy three parameters - a prima facie case, balance of convenience, and imminent prospect of permanent harm or injury.”[9] The decision or the entire court process would be considered void if the relief requested under Order 38 Rule 5 is not granted.[10] In certain extraordinary circumstances, the court requires the opposing party to keep particular assets or to provide security. “This is done to ensure that once a decree is passed, it is properly monetised and does not remain a paper decree.” [11]

This can occur if the party against whom the injunction was issued has alienated his property. The courts must also guarantee that such a remedy does not result in the creation of an unsecured debt. “Ex parte interim remedy” is the focus of Order 39(1) and (2)[12]. Ex parte ad interim remedy is when a temporary injunction is required so that the opposing party is not alerted. This can happen if the person, against whom the injunction was filed has alienated their property. Additionally, the courts must ensure that this remedy won't lead to an occurrence of unsecured debt. Proviso to Order XXXIX Rule 3 clearly states that in these circumstances, the reasons must be mentioned.[13] The court must take into account the plaintiff's conduct, the plaintiff's prima facie averments, and whether the same are supported by documents on record in addition to the three parameters that serve as the foundation for injunctions, such as whether the plaintiff approached the court within a reasonable time etc. When all of these arguments are considered, a judge will decide whether to grant or refuse such relief. After getting ex parte relief, the Plaintiff is required to deliver a copy of the plaint and all other papers filed in the case as well as quick notice to the opposing party that an ex parte injunction has been granted against that party.

From the discussion it can be ascertained that a temporary measure used to maintain the status quo is an injunction. Its objective is to prevent the dissolution of the plaintiff's rights. The key justification for requesting a temporary injunction is that such applicant requires immediate relief. According to Section 94(c) and (e) of the CPC, the Court may issue a temporary injunction or any other interlocutory order that, in the Court's opinion, is reasonable and convenient to prevent the goals of justice from being defeated. According to Section 95 of the CPC, the Court may grant reasonable compensation on the defendant's application up to the extent of the Court's pecuniary jurisdiction if a temporary injunction is granted. Additionally, the court has the power to impose a temporary injunction at it's discretion. However, this discretion should be exercised with care, wisdom, and respect for solid legal principles. Given that they have a negative effect on the other party, injunctions shouldn't be granted recklessly. An injunction is an equitable remedy, and the court has the authority to set any conditions and restrictions it sees fit. However, such limitations must be reasonable so as not to prevent the party from complying with them and denying him the relief to which he would otherwise be entitled.

Section 51 of CPC lays down the modes of execution of a decree and attachment of property is one of them. An attachment is an official process provided in Order 38 of the CPC whereby a court can seize and keep a defendant's property as security for a pending litigation in the context of the CPC. A judgement or order that has been issued or is expected to be issued in favour of the Plaintiff can be enforced through attachment. A variety of assets, including movable and immovable property, bank accounts, stocks, and other assets, may be attached. Depending on the facts of the case, the court may order attachment before or following the judgement. An attachment of property prior to judgement delivery is an extraordinary remedy that needs to be used with extreme care and attention. Even before a judgement is rendered against the defendant, such an attachment stops him from using his property. Therefore, before taking such harsh measures, the court must be convinced that the defendant will hinder or delay the decree's execution if such action is not taken.

The court must be convinced that the following requirements have been met before issuing an order of property attachment: (i) the defendant is about to dispose of the entirety of his property; and (ii) such disposition is done with the intent of preventing or delaying the execution of any judgement that may be rendered against him.

Between the commencement of proceedings and the conclusion, interim orders are required to deal with issues and safeguard the parties' rights. They give the court the ability to dispense any relief or issue any orders that may be required, just, or equitable. Additionally, they stop any abuse of the legal system while the case is pending. Therefore, interim or interlocutory proceedings are very important in how the litigation between the parties is conducted. On the basis of preliminary, prima facie evidence, an interim order is made. Such an order is made as a temporary measure to maintain the status quo until the subject is fully adjudicated, preventing the issue from becoming moot or a fait accompli prior to the final hearing. The court would provide an interim relief only if it believed that not doing so would be unfair and go against the court's moral principles, resulting in injustice during the trial and rendering the court powerless to ensure justice in the end.



[1] G. Manohara Reddy, Enquiries and Order in Interlocutory Applications, Temporary Injunctions, Attachment Before Judgment, Appointment of Commissioners and Receivers (2d ed., Kadapa at Proddatur, 20XX).

[2] Srivastava, N. (2016, August 23) Temporary Injunctions in India: Overview and Procedure. iPleaders Blog. https://blog.ipleaders.in/temporary-injunctions-india/

 

[3] Gupta, V., "Interim Orders," LawyersClubIndia (May 12, 2008), https://www.lawyersclubindia.com/articles/interim-orders-1756.asp#_ftnref45.

[4] Section 151, Code of Civil Procedure, 1908 (India).

[5] S. K. Srivastava, The Inherent Powers of the Court, Legal Services India, https://www.legalservicesindia.com/article/1736/The-Inherent-Powers-of-the-Court.html

[6] Section 94, Code of Civil Procedure, 1908 (India).

[7] Section 95, Code of Civil Procedure, 1908 (India).

[8] Code of Civil Procedure, Order 39(1) and (2).

[9]  Gupta, Shreya, Injunction Under CPC: An Overview, TaxGuru, November 5, 2020, https://taxguru.in/corporate-law/injunction-cpc-overview.html.

[10] Code of Civil Procedure, Order 38, Rule 5.

[11] Gupta, Shreya, Injunction Under CPC: An Overview, TaxGuru, November 5, 2020, https://taxguru.in/corporate-law/injunction-cpc-overview.html.

[12] Code of Civil Procedure, Order 39(1) and (2).

[13] Code of Civil Procedure, Order 38, Rule 3.

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