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CASE NO.: Appeal (civil)  2634 of 2004

PETITIONER: VAREED JACOB

RESPONDENT: SOSAMMA GEEVARGHESE & ORS.

DATE OF JUDGMENT: 21/04/2004

BENCH: S.B. Sinha.

JUDGMENT: J U D G M E N T

(@ S.L.P. (CIVIL) NO. 18699 OF 2001)

S.B. SINHA, J :

       Leave granted.

       The short question involved in this appeal which arises  out of a judgment and order dated 27.7.2001 in C.R.P. No.  2003 of 1998-B passed by the High Court of Kerala at  Ernakulam is as to whether on restoration of a suit an order  of injunction passed is automatically revived or not.   

       An order of injunction can be passed under Order 39,  Rules 1 and 2 of the Code of Civil Procedure.  Such an order  can also be passed by the Court in exercise of its inherent  jurisdiction in the event the prayer for grant of injunction  does not fall within the scope of Section 94 of the Code of  Civil Procedure read with Order 39, Rules 1 and 2 thereof.

       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/tribunal’s power of adjudication.

       The Code of Civil Procedure uses different expressions   in relation to incidental proceedings and supplemental

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proceedings.  Incidental proceedings are referred to in Part  III of the Code of Civil Procedure whereas Supplemental  Proceedings are referred to in Part VI thereof.     

       Is there any difference between the two types of  proceedings?

       A distinction is to be borne in mind keeping in view  the fact that the incidental proceedings are in aid to the  final proceedings.  In other words an order passed in the  incidental proceedings will have a direct bearing on the  result of the suit.  Such proceedings which are in aid of  the final proceedings cannot, thus,  be held to be at par  with supplemental proceedings which may not have anything to  do with the ultimate result of the suit.

       Such a supplemental proceeding is initiated with a view  to prevent the ends of justice from being defeated. The  supplemental proceedings may not be taken recourse to as a  routine matter but only when an exigency arises therefor.  The orders passed in the supplemental proceedings may some  time cause  hardships to the other side and, thus, are  required to be taken recourse to when a situation arises  therefor and not otherwise.  There are well-defined  parameters laid down by the Court from time to time as  regards the applicability of the supplemental proceedings.

       Incidental proceedings are, however, taken recourse to  in aid of the ultimate decision of the suit which would mean  that any order passed in terms thereof, subject to the rules  prescribed therefor, would have a bearing on the merit of  the matter.  Any order passed in aid of the suit are  ancillary powers.  Whenever an order is passed by the Court  in exercise of its ancillary power or in the incidental  proceedings, the same may revive on revival of the suit.   But so far as supplemental proceedings are concerned, the  Court may have to pass a fresh order.

       An order to furnish security to produce any property  belonging to a defendant and to place the same at the  disposal of the Court or order the attachment of any  property as also grant of a temporary injunction or  appointment of a receiver are supplemental in nature.  The  effect of such order may be  felt even after decree is  passed.  An order of attachment passed under Order 38 of the  Code of Civil Procedure would be operative even after the  decree is 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.

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       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  interlocutory orders like one of ’stay’ are nothing but  ancillary orders and they are all meant to aid and  supplement the ultimate decision arrived at in the main suit  or appeal.  Even in such a situation when there is any other  factor on the record or in the order passed to show to the  contrary even an order of stay shall not automatically  revive.  This decision, therefore, is an authority for the  proposition that the Code of Civil Procedure lays down two  different schemes, one in relation to the ancillary orders  which would aid and supplement the decisions arrived at in  the main appeal and the one which may not have to do  anything therewith.

       In Tavvala Veeraswamy Vs. Pulim Ramanna and Others [AIR  1935 Madras 365] a Full Bench of the Madras High Court held  that even an order of attachment before judgment would  automatically revive on restoration of a suit.  In that  case, Beesley, CJ speaking for the Full Bench, however,  erroneously proceeded on the basis that an order of  attachment is also an ancillary order and in that view of  the matter held:

"...It does not seem to me reasonable  that the plaintiff in a suit who has got  an attachment before judgment should  have again, after the restoration of the  suit after its dismissal for default, to  apply to the Court for a fresh  attachment and that having done so the  defendant should have to apply to raise  the attachment by producing a surety or  sureties.  The common sense view of the  matter is that all ancillary orders  should be restored on the suit’s  restoration without any further  orders."

       The question as to whether an order of attachment is a  supplemental order or not was not at all considered therein.   

       In Shivaraya and Others Vs. Sharnappa and Others [AIR  1968 Mysore 283], a learned Single Judge followed Bankim  Chandra and Others (supra) and Tavvala Veeraswamy (supra)  which considered such interlocutory orders to have been  passed in exercise of the Court’s ancillary powers.

       In Ganesh Prasad Sah Kesari and Another Vs. Lakshmi  Narayan Gupta [(1985) 3 SCC 53], this Court was concerned  with a case as regard the power of the court to extend the  time for depositing rent by the defendant.  Interpreting  Section 11A of Bihar Buildings (lease, Rent and Eviction)  Control Act, 1947, it was held that the Court had such  power; differing with the view of the High Court as regard  interpretation of such a provision 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

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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 must be reached again.   Consequently on the restoration of a  dismissed suit, all the previous  proceedings and the interim orders  revive and do not require a fresh order  to give them vigour."

       In Kishan Lal Vs. Smt. Kamla Devi Sharma [1979 RLW  369], the Court while again dealing with a rent control  matter held that when an order has been passed under Sub- Section (3) of Section 13 of the Act as existed at the  relevant time, no fresh order is required to be passed.

       In Ulahannan Chacko Vs. Mathai [1986 KLT 301] the Court  was concerned with an application for amendment of plaint in  relation whereto a contention was raised that the said  application could not have been brought into life as the  appeal was dismissed holding:

"...When restoration of the suit or  appeal is allowed, the parties are to be  restored to the same position in which  they were situated when the court  dismissed the suit or appeal. Then on  restoring the appeal dismissed for  default, the ancillary matters disposed  of in consequence of such dismissal must  also get restored and the consequential  orders passed on dismissal of the suit  or appeal should automatically get  vacated."

       In Abdul Hamid Vs. Karim Bux and Others [AIR 1973 All  67], a Full Bench of the Allahabad High Court noticing a  large number of decisions including some of which have been  referred to hereinbefore held:

"17. The language of Order 38, R.9 no  doubt is capable of both the  interpretations but the well-recognised  rule of interpretation is that where the  language is capable of two

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interpretations and where the section of  the Act has received a judicial  construction and the said construction  has long been acted on without any  alteration in the statute, the  interpretation so recognised and acted  on is to be accepted on the principle of  stare decisis because it is the general  maxim that even a point of law has been  settled by decision it forms a precedent  which is not afterwards to be departed  from.  The latter part of the rule which  requires that the attachment shall be  removed when the suit is dismissed is  either directory or mandatory.  If it is  directory the attachment is removed  automatically in spite of no order of  the Court.  If it is mandatory, then the  duty of the Court is to pass an order  and a party cannot be penalised where  the consequences for the dismissal  appear to be the witdrawal of the  attachment before judgment.  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 of the Code of Civil Procedure, 1908 and referring to  Chunni Kuar Vs. Dwarka Prasad [1887 All WN 297] noticed a  contention which is in the following terms:

"On the other hand, Mr. Colvin relies  upon the last part of s.488 to show that  an attachment before judgment comes to

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an end "when the suit is dismissed;"  and the learned counsel also lays stress  upon the provisions of s. 490, and  argues that the words of that section  contemplate that it is only when a  decree is given in favour of the  plaintiff that re-attachment in  execution of such decree is dispensed  with, implying that such attachment is  necessary where the suit ended in  dismissal of the plaintiff’s claim.  For  this contention the learned counsel also  relies upon the ruling of the learned  Chief Justice in Chunni Kuar Vs. Dwarka  Prasad where it was held that a  temporary injunction under s. 492,  notwithstanding the use of the phrase  "till further orders," comes to an end  on the termination of the suit in which  such injunction was passed, although no  express order had been made by the Court  withdrawing or setting aside such  injunction."

       Mahmood, J. agreeing with the said contention observed:

"I am of opinion that this contention  is sound, and that the case last cited,  though relating to temporary injunction,  proceeds upon a principle analogous to  attachments before judgment, both being  ad interim proceedings which naturally  cease to have any force as soon as the  suit itself, in respect of which they  were taken, comes to a close.  In other  words, an attachment before judgment  under s.488, like a temporary injunction  under s.492, becomes functus officio as  soon as the suit terminates."

       This decision, therefore, is an authority for two  propositions, namely, (i) an order of attachment before  judgment does not entail an automatic revival upon  restoration of a suit which is dismissed for default; and  (ii) for that purpose an order of injunction would be  treated at par with an order of attachment before judgment.

       In Gangappa Vs. Boregowda [AIR 1955 Mysore 91], a Full  Bench of the Madras High Court by referring such proceeding  as a supplemental proceeding required for grant of  extraordinary relief as contra-distinguished from an  ancillary order which is granted in the aid of a proceeding,  held:

"10. An attachment before judgment is  in the nature of an interlocutory order.   It is an extra 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

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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  judgment under the provisions of S.  107(2), Civil P.C.  In any event the  possibility of hardship cannot warrant  the ignoring of the express provisions  of O.38, R.9 by which it is specifically  laid down that an attachment before  judgment shall cease by the dismissal of  a suit."

       It will, therefore, be seen that the Court has in that  case also equated the order of injunction with an order of  attachment.

       Yet again in Nagar Mahapalika, Lucknow Vs. Ved Prakash  [AIR 1976 All 264] it was held:

"4. As long ago as 1887 a question of  similar nature arose for consideration  before this Court in Chunni Kuar Vs.  Dwarka Prasad (1887 All WN 297).  It was  observed therein that an attachment  before judgment like a temporary  injunction becomes functus officio as  soon as the suit terminates.  Again, a  question pertaining to attachment before  judgment came up for consideration  before this Court in Ram Chand Vs. Pitam  Mal (1888) ILR 10 All 506.  Relying on  Chunni Kuar’s case (supra) that  principle was reiterated with approval.   The other High Courts also considered  this question in a number of cases.   Finally, the question was raised in  Abdul Hamid Vs. Karim Bux before this  Court as to whether on the dismissal of  a suit in default in atttachment before  judgment automatically lapsed and a  fresh attachment was necessary on the  restoration of the suit, or whether on  the restoration of the suit the  attachment previously made is revived or  is survived.  This question was referred

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to a Full Bench of the Court.  The  majority view was that on the dismissal  of suit in default the attachment before  judgment automatically ceases and a  fresh attachment is necessary on the  restoration of the suit."

       In Kanchan Bai Vs. Ketsidas and others [AIR 1991 Raj.  94], it was held:

"6. The only question for consideration  in this application is whether on the  setting aside of the order of rejection  of the plaint and its remand by the  appellate court, the temporary  injunction issued by the trial Court  stood revived? It is well settled law  that interlocutory orders which are  meant to aid and supplement the ultimate  decision arrived at in the main suit or  appeal would be ancillary order and such  order would stand revived automatically  on the restoration of the suit.  Orders  granting temporary injunction do not aid  and supplement the ultimate decision of  the suits.  As such they cannot be said  to be 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 the other  hand, would mean a separate proceeding in an original  action, in which the court where the action is pending is  called upon to exercise its jurisdiction in the interest of  justice.  

The expression ’incidental’ may mean differently in  different contexts. While dealing with a procedural law, it

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may mean proceedings which are procedural in nature but when  it is used in relation to an agreement or the delegated  legislation, it may mean something more; but the distinction  between an incidental proceeding and a supplemental  proceeding being obvious cannot be ignored.

Indisputably, the effect of an order passed under  different provisions of Section 94 of the Code of Civil  Procedure would be different.  They have been so legislated  keeping in view different exigencies of circumstances but it  must not be forgotten that the power thereunder is to be  exercised in the interest of justice.  The statutory scheme  therefor is that supplemental proceeding should be taken  recourse to only when the interest of justice is required to  be sub-served, although the interlocutory order may not have  anything to do with the ultimate decision of the court.   

       The consequences of an order of attachment before  judgment as also, an order of injunction can be grave.  By  reason of such an order, a right of a party to the lis may  be affected or remained under animated suspension. By reason  of an interlocutory order whether in terms of Order 38,  Order 39 or Order 40, a person’s right to transfer a  property may remain suspended as a result whereof he may  suffer grave injury.  When the suit is dismissed for  default, he may exercise his right.  If it is to be held  that on restoration of the suit the order of attachment  before judgment or an order, an injunction is automatically  revived, as a result whereof the status of the parties would  be in the same position as on the date of passing of the  initial interlocutory order, they may be proceeded with for  violation of the order of injunction or an order of  attachment before judgment.  The right of subsequent  purchaser may also be affected.  By reason of taking  recourse to a supplemental proceedings, the rights of the  parties and in some cases the right of even a third party  cannot be allowed to be taken away.   

In this case, this Court is not concerned with the  question as to whether substantive changes have been made in  Order 38 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 order of  

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attachment entails that in the event of dismissal of suit,  the order comes to an end.  Such a provision has been made  by the legislature by way of abundant caution.  Although it  is of not much importance but we may notice that there  exists a conflict of opinion as regard consequences of an  order of attachment upon reversal of a judgment of dismissal  of suit in appeal, namely, as to whether in the event the  suit is decreed by the appellate court, an order of  attachment would  automatically be restored or not.

       It is also of some importance that there exists a view  that an order of dismissal of a suit does not render an  order of attachment void ab initio as a sale of property  under order of attachment would be invalid even after the  date of such sale and the attachment is withdrawn.   

A converse case may arise when the property is sold  after the suit is dismissed for default and before the same  is restored.  Is it possible to take a view that upon  restoration of suit the sale of property under attachment  before judgment becomes invalid?  The answer to the said  question must be rendered in the negative.  By taking  recourse to the interpretation of the provisions of the  statute, the court cannot say that although such a sale  shall be valid but the order of attachment shall revive.   Such a conclusion by reason of a judge-made law may be an  illogical one.            

       A construction which preserves the rights of the  parties pending adjudication must be allowed to operate vis- ‘-vis the privilege conferred upon a plaintiff to obtain an  interlocutory order which loses its force by dismissal of  suit and, thus, may not revive, unless expressly directed,  on restoration of the suit.  

A suit or a proceeding which is barred by limitation  would oust the jurisdiction of the court to entertain the  same.  When a proceeding is barred by limitation, it  culminates in a right to the non-suitor.  Such a right can  be curtailed only by express terms of a statute.  A statute  may furthermore provide for extension of a period of  limitation in certain situation.  The Code of Civil  Procedure is silent as to the effect of revival of the  interlocutory order on restoration of a suit.  This case  demonstrates as to how a person for no fault on his part  would suffer prejudice when such a right is being taken  away.  Such a provision which would confer jurisdiction of a  court to entertain a proceeding which 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

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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 absence of any statutory provisions such a  power cannot be exercised whereas a power which is ancillary  or incidental, can always be exercised by the Court in aid  of and supplemental to the final order that may be passed.   Furthermore, a jurisdiction expressly conferred by a statute  and an inherent power, subject to just exceptions, must be  treated differently.   

       I am, therefore, of the opinion that the interim order  of injunction did not revive on restoration of the suit.   The Courts, however, would be well-advised keeping in view  the controversy to specifically pass an order when the suit  is dismissed for default stating when interlocutory orders  are vacated and on restoration of the suit, if the court  intends to revive such interlocutory orders, an express  order to that effect should be passed.

       I respectfully dissent with the opinion of Hon’ble  theChief Justice of India.

       I will, therefore, set aside the impugned order and  allow the appeal.  No costs.