Vareed Jacob v. Sosamma Geevarghese And Others

V.N Khare, C.J and S.H Kapadia, J. Leave granted.

2. Suit No. 332/1122 (NE) was a suit for partition filed in the Munsif Court, Kottarakara, in which final decree was passed on 21-5-1964. Under the decree, Defendant 6 (since deceased) was granted recovery of Items 10-16. Defendant 6 died after the decree. The third defendant in the said Suit No. 332/1122 (NE) in turn filed Suit No. 209 of 1969 on 25-6-1969 against Defendant 6 (decree-holder) and others for setting aside the decree dated 21-5-1964 in Suit No. 332/1122 (NE). On 25-6-1969, the Court passed an order of temporary injunction restraining the decree-holder from executing the decree dated 21-5-1964 in Suit No. 332/1122 (NE). On 2-4-1973, Suit No. 209 of 1969 filed by the third defendant was dismissed for default. Thereafter application was moved for restoration of Suit No. 209 of 1969 and that suit was ultimately restored to file on 20-12-1974. However, ultimately on merits, Suit No. 209 of 1969 was dismissed on 21-3-1975. The above facts show that the decree-holder was prevented from executing the decree dated 21-5-1964 in Suit No. 332/1122 (NE), during the period 25-6-1969 up to 21-3-1975 when Suit No. 209 of 1969 was pending and ultimately dismissed on merits. Further, against the dismissal of Suit No. 209 of 1969 the matter was taken in appeal before the first appellate court which also dismissed the appeal of the plaintiff in Suit No. 209 of 1969. Being aggrieved, the plaintiff in Suit No. 209 of 1969 carried the matter in appeal before the High Court, which appeal was finally dismissed on 11-6-1979. In other words, the decree in Suit No. 332/1122 (NE) could not be executed during the period 25-6-1969 up to 11-7-1979. On 18-3-1981, execution petition was filed and the decree dated 21-5-1964 in Suit No. 332/1122 (NE) was put in execution to which the judgment-debtor (the petitioner herein) objected on the ground that the execution petition was barred by limitation, as it was not filed within 12 years from the date of the decree i.e 21-5-1964. The executing court as also the High Court in revision held that the decree-holder in Suit No. 332/1122 (NE) was precluded from executing the decree during the period 25-6-1969 to 21-3-1975, when Suit No. 209 of 1969 filed by the judgment-debtor came to be finally dismissed on merits and if that period was excluded, the execution petition was well within time. Being aggrieved by the decision of the High Court dated 25-7-2001, in Civil Revision Petition (CRP) No. 2003 of 1998-B, the judgment-debtor has come by way of special leave petition under Article 136 of the Constitution of India.

3. Mr Fazlin Anam, learned counsel appearing on behalf of the judgment-debtor (petitioner) contended that the suit filed by the judgment-debtor being Suit No. 209 of 1969 was dismissed for default on 2-4-1973. That during the pendency of Suit No. 209 of 1969, there was an order of temporary injunction dated 25-6-1969, but with the dismissal of the suit for default on 2-4-1973 the order of temporary injunction dated 25-6-1969 came to an end and that order did not revive even after restoration of Suit No. 209 of 1969 on 20-12-1974, and consequently nothing prevented the decree-holder from executing the decree dated 21-5-1964, after the restoration of the suit. In this connection, learned counsel placed reliance on the judgment of the Allahabad High Court in the case of Raj Chander Gupta v. Ramesh Kishore AIR 1965 All 546 in which it has been held that with the dismissal of the suit, either on merit or for default, the attachment before judgment comes to an end and even if the suit is restored subsequently the order of attachment before judgment will not revive automatically. In deciding the matter the Allahabad High Court placed reliance on its earlier judgment in the case of Ram Chand v. Pitam Mal ILR (1888) 10 All 506, (1888) 8 AWN 195.

4. Per contra, Mr P. Krishnamoorthy, learned Senior Counsel appearing on behalf of the respondent decree-holder contended that on the restoration of the suit dismissed for default all ancillary orders passed therein stood automatically revived. He, therefore, contended that in the present case when the dismissed Suit No. 209 of 1969 came to be restored on 20-12-1974, the order of temporary injunction dated 25-6-1969 stood revived and consequently, the decree-holder could not have executed the decree and, therefore, he was entitled to exclude the period between 25-6-1969 to 21-3-1975 (when the suit was dismissed on merits) in computation of the period of limitation of 12 years for the purposes of executing the decree dated 21-5-1964, which was finally put in execution on 18-3-1981 after the judgment-debtor had exhausted all his remedies by way of the appeals. In this connection reliance was placed on the judgment of the Madras High Court in the case of Tavvala Veeraswami v. Pulim Ramanna AIR 1935 Mad 365. Reliance was also placed on the judgment of the Patna High Court in the case of Bankim Chandra v. Chandi Prasad AIR 1956 Pat 271, 1956 BLJR 454. Similarly, reliance was placed on the judgment of the Andhra Pradesh High Court in the case of Nandipati Rami Reddi v. Nandipati Padma Reddy AIR 1978 AP 30, (1977) 2 APLJ 64 in which it has been laid down that when the dismissed suit is restored, the interim orders and their operation during the period of interregnum are revived and the plaintiff must be restored to the position in which he was situated when the court dismissed the suit for default and consequently all interlocutory orders passed before the order of dismissal would also revive along with the suit when the order of dismissal is set aside and the suit is restored, unless the court expressly or by implication excludes the operation of interlocutory orders during the period between the dismissal and the restoration.

5. In view of the aforestated arguments, the point which arises for determination is: whether there is automatic revival of interlocutory orders with the restoration of the suit unless the circumstances occurring during the interregnum or the orders passed by the court speak to the contrary.

Analysis of the provisions of CPC, 1908

6. The Civil Procedure Code, 1908 applies to all proceedings in courts of civil jurisdiction, subject to any special or local law or any special jurisdiction under any other law for the time being in force. The main feature of the Code is its division into two parts. The main body of the Code consists of sections which create jurisdiction while the rules indicate the manner in which the jurisdiction has to be exercised.

7. Section 9 states that the courts shall have the jurisdiction to try all suits of civil nature except suits which are expressly or impliedly barred. Section 9 falls in Part I CPC which deals with suits in general. Part II deals with execution. Part II CPC covers Sections 51 to 64. Under Section 51 CPC, subject to limitations and conditions as may be prescribed, the court may order execution of the decree by delivery of any property specifically decreed; by attachment and sale; by arrest and detention; by appointment of receiver or in such a manner as the nature of the relief granted may require. Therefore, attachment is a part of execution process (see Mahadeo Dubey v. Bhola Nath Dichit ILR (1883) 5 All 86, (1882) 2 AWN 186). Part III CPC deals with incidental proceedings like power of the court to issue commission, letter of request, etc. Part VI CPC deals with supplemental proceedings which cover Section 94 which inter alia empowers the court to pass interim orders depending upon the circumstances prescribed by the rules.

8. In the case of Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal AIR 1962 SC 527, 1963 All LJ 169 it has been held that the effect of the expression “if so prescribed” in Section 94 CPC is to prescribe the circumstances in which courts can exercise or grant a particular relief and ordinarily the court is not to use its inherent powers to make the necessary orders in the interest of justice, but to see whether the circumstances of the case come within the prescribed rule. Therefore, in a case where the plaintiff seeks temporary injunction courts have to ascertain whether the facts of the case fall under Order 39. That it is in the incidence of exercise of power of the court to issue temporary injunction that Section 94 has a role to play and that Section 94, however, does not take away the right of the court to exercise its inherent power. In the same judgment, Section 151 CPC is also analysed. The Apex Court in the same judgment has held that inherent power has not been conferred upon the court by Section 151 CPC. It is a power inherent in the court by virtue of its duty to do justice between the parties before it. That Section 151 merely recognises the existence of the inherent power of the court, therefore, even if in a given case circumstances do not fall within Order 39 CPC, the courts have inherent jurisdiction to issue temporary injunction if the court is of the opinion that interest of justice requires issue of such interim injunction.

9. In the case of Ram Chand & Sons Sugar Mills (P) Ltd. v. Kanhayalal Bhargava AIR 1966 SC 1899 it has been held by this Court that the inherent power of the court under Section 151 CPC is in addition to and complementary to the powers expressly conferred under CPC, but that power will not be exercised in conflict with any of the powers expressly or by implication conferred by other provisions of CPC. If there is express provision covering a particular topic, then Section 151 CPC cannot be applied. Therefore, Section 151 CPC recognises inherent power of the court by virtue of its duty to do justice and which inherent power is in addition to and complementary to powers conferred under CPC, expressly or by implication.

10. In the case of Jagjit Singh Khanna v. Dr. Rakhal Das Mullick AIR 1988 Cal 95, (1988) 92 CWN 190 it has been held that a temporary injunction may be granted under Section 94(c) only if a case satisfies Order 39 Rule 1 and Rule 2. It is not correct to say that the court has two powers, one to grant temporary injunction under Section 94(c) and the other under Order 39 Rules 1 and 2. That Section 94(c) CPC shows that the court may grant a temporary injunction thereunder, only if it is so prescribed by Rule 1 and Rule 2 of Order 39. The court can also grant temporary injunction in exercise of its inherent powers under Section 151, but in that case, it does not grant temporary injunction under any of the powers conferred by CPC, but under powers inherent in the constitution of the court, which is saved by Section 151 CPC.

11. The above discussion shows that the source of power of the court to grant interim relief is under Section 94. However, exercise of that power can only be done if the circumstances of the case fall under the rules. Therefore, when a matter comes before the court, the court has to examine the facts of each case and ascertain whether the ingredients of Section 94 read with the rules in an order are satisfied and accordingly grant an appropriate relief. It is only in cases where circumstances do not fall under any of the rules prescribed that the court can invoke its inherent power under Section 151 CPC. Accordingly, the courts have to grant relief of attachment before judgment, if the circumstances fall under Order 38 CPC. Similarly, courts will grant temporary injunction if the case satisfies Order 39. So depending on the circumstances falling in the prescribed rules, the power of the court to grant specified reliefs would vary. Therefore, each set of rules prescribed is distinct and different from the other and therefore, one cannot equate rules of temporary injunction with rules of attachment before judgment although all are broadly termed as interlocutory orders.

Analysis of the judgments cited before us

12. In the case of Abdul Hamid v. Karim Bux AIR 1973 All 67, 1972 All LJ 892 it has been held that on the dismissal of the suit in default, attachment before judgment automatically ceases and does not revive on the restoration of the suit. In coming to this conclusion, the Allahabad High Court placed reliance on the earlier judgment of the Allahabad High Court in the case of Ram Chand v. Pitam Mal ILR (1888) 10 All 506, (1888) 8 AWN 195.

13. Similarly, in the case of Raj Chander Gupta v. Ramesh Kishore AIR 1965 All 546 it has been held that on the dismissal of the suit either on merit or for default attachment before judgment shall cease and it shall not revive automatically on restoration of the suit. Here also reliance has been placed by the Allahabad High Court on the earlier judgment in the case of Ram Chand v. Pitam Mal ILR (1888) 10 All 506, (1888) 8 AWN 195.

14. In the case of Nagar Mahapalika v. Ved Prakash AIR 1976 All 264 the same view has been taken in that matter. In that matter it was held that interim injunction came to an end on dismissal of the suit for default and it would not automatically revive on restoration. Here also reliance has been placed by the Allahabad High Court on its earlier judgment in the case of Ram Chand v. Pitam Mal ILR (1888) 10 All 506, (1888) 8 AWN 195. However, this is the only judgment which has equated order of temporary injunction with attachment before judgment as interlocutory orders without considering provisions of Order 38 Rule 9 and Rule 11.

15. At the outset, we may point out that the case of Ram Chand v. Pitam Mal ILR (1888) 10 All 506, (1888) 8 AWN 195 was under the provisions of the earlier Civil Procedure Code of 1859. In this case we are concerned with the Civil Procedure Code of 1908, which has made substantial changes with regard to the attachment before judgment. Under Order 38 Rule 1 an extraordinary relief is given to the plaintiff, namely, in appropriate cases where the court finds a strong prima facie case in favour of the plaintiff and if the court is satisfied that the defendant is likely to defeat the decree in future as and when it is passed, then the court shall grant attachment before judgment even before final adjudication of the claim of the plaintiff, hence it is an extraordinary relief given to the plaintiff by the court. However, under Order 38 Rule 9 the court shall order withdrawal of attachment when the suit is dismissed. Therefore, Rule 9 makes it mandatory for the court to lift the attachment at the time of the dismissal of the suit. Such a provision is not there under Order 39 or under Order 40. This has not been noticed by the Allahabad High Court in the case of Nagar Mahapalika v. Ved Prakash AIR 1976 All 264. All the earlier judgments of the Allahabad High Court related to Order 38 and not to Order 39. Moreover, as stated above, attachment is a part of execution process. It is granted to protect the decree. Under Order 38 Rule 11 it is further provided that when the suit is decreed the courts will continue attachment before judgment and the plaintiff is not required to reapply for attachment. The scheme of Order 38 is different from Order 39 or Order 40. Hence, we cannot compare attachment under Order 38 with power of the court to grant temporary injunction under Order 39 as interlocutory orders. Similarly, Order 21 Rule 57 indicates the duty on the courts to order whether the attachment shall continue or cease on the dismissal of the execution suit.

16. The facts of the present case and the controversy in this case are covered by the provisions of Order 39 and not Order 38.

17. In the case of Shivaraya v. Sharnappa AIR 1968 Mys 283, (1967) 1 Mys LJ 414 it has been held that the question whether the restoration of the suit revives ancillary orders passed before the dismissal of the suit depends upon the terms in which the order of dismissal is passed and the terms in which the suit is restored. If the court dismisses the suit for default, without any reference to the ancillary orders passed earlier, then the interim orders shall revive as and when the suit is restored. However, if the court dismisses the suit specifically vacating the ancillary orders, then restoration will not revive such ancillary orders. This was a case under Order 39.

18. In the case of Saranatha Ayyangar v. Muthiah Moopanar AIR 1934 Mad 49 it has been held that on restoration of the suit dismissed for default all interlocutory matters shall stand restored, unless the order of restoration says to the contrary. That as a matter of general rule on restoration of the suit dismissed for default, all interlocutory orders shall stand revived unless during the interregnum between the dismissal of the suit and restoration, there is any alienation in favour of a third party.

19. A similar view has been taken by the Patna High Court in the case of Bankim Chandra v. Chandi Prasad AIR 1956 Pat 271, 1956 BLJR 454 in which it has been held that orders of stay pending disposal of the suit are ancillary orders and they are all meant to supplement the ultimate decision arrived at in the main suit and, therefore, when the suit, dismissed for default, is restored by the order of the court all ancillary orders passed in the suit shall revive, unless there is any other factor on record or in the order of dismissal to show to the contrary. This was also a matter under Order 39.

20. In the case of Nandipati Rami Reddi v. Nandipati Padma Reddy AIR 1978 AP 30, (1977) 2 APLJ 64 it has been held by the Division Bench of the Andhra Pradesh High Court that when the suit is restored, all interlocutory orders and their operation during the period between dismissal of the suit for default and restoration shall stand revived. That once the dismissal is set aside, the plaintiff must be restored to the position in which he was situated, when the court dismissed the suit for default. Therefore, it follows that interlocutory orders which have been passed before the dismissal would stand revived along with the suit when the dismissal is set aside and the suit is restored unless the court expressly or by implication excludes the operation of interlocutory orders passed during the period between dismissal of the suit and the restoration.

21. In the case of Nancy John Lyndon v. Prabhati Lal Chowdhury (1987) 4 SCC 78 it has been held that in view of Order 21 Rule 57 CPC it is clear that with the dismissal of the title execution suit for default, the attachment levied earlier ceased. However, it has been further held that when the dismissal was set aside and the suit was restored, the effect of restoring the suit was to restore the position prevalent till the dismissal of the suit or before dismissal of the title execution suit. We repeat that this judgment was under Order 21 Rule 57 whose scheme is similar to Order 38 Rule 11 and Rule 11-A CPC and therefore, we cannot put all interlocutory orders on the same basis.

22. For all the aforestated reasons, the decree-holder in this case was entitled to exclude the period of 5 years 8 months and 26 days between 25-6-1969 and 21-3-1975 in computing the period of limitation for execution of the decree.

23. For aforestated reasons the appeal is dismissed. No costs.

S.B Sinha, J. (dissenting)— Leave granted.

25. The short question involved in this appeal which arises out of a judgment and order dated 25-7-2001 in CRP 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.

26. 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.

27. An order of injunction can be granted by the court only when there exists any power therefor. In Morgan Stanley Mutual Fund v. 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 judgment 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 supplemental proceedings and incidental proceedings.

28. 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.

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

30. Is there any difference between the two types of proceedings?

31. 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.

32. 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 sometimes 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.

33. 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 orders 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.

34. 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 regards the status of the parties violating the order of injunction or the right of a transferee who has 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.

35. 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.

36. In Bankim Chandra v. Chandi Prasad AIR 1956 Pat 271, 1956 BLJR 454 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.

37. In Tavvala Veeraswami v. Pulim Ramanna AIR 1935 Mad 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, C.J 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: (AIR p. 366)

“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.”

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

39. In Shivaraya v. Sharnappa AIR 1968 Mys 283, (1967) 1 Mys LJ 414 a learned Single Judge followed Bankim Chandra AIR 1956 Pat 271, 1956 BLJR 454 and Tavvala Veeraswami AIR 1935 Mad 365 which considered such interlocutory orders to have been passed in exercise of the Court's ancillary powers.

40. In Ganesh Prasad Sah Kesari v. Lakshmi Narayan Gupta (1985) 3 SCC 53 this Court was concerned with a case as regards the power of the Court to extend the time for depositing rent by the defendant. Interpreting Section 11-A of the 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 regards interpretation of such a provision as directory in stead and in place of being mandatory.

41. 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 regards 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.

42. In Radhey Bai v. Savitri Sharma 1975 RLR 234 the 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.”

43. In Kishan Lal v. Kamla Devi Sharma 1979 RLW 369, (1979) 2 Rent LR 388 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.

44. In Ulahannan Chacko v. 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 to life as the appeal was dismissed, holding: (KLT p. 302, para 3)

“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.”

45. In Abdul Hamid v. Karim Bux AIR 1973 All 67, 1972 All LJ 892 a Full Bench of the Allahabad High Court noticing a large number of decisions including some of which have been referred to hereinbefore held: (AIR p. 69, para 17)

“17. The language of Order 38 Rule 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 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 if 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 withdrawal of the attachment before judgment. The lower appellate court in these circumstances was right in upholding Respondent 1's claim based on the transfer in his favour and rejecting the plaintiff-appellant's contentions.”

46. The question before us, however, had received the attention of the Court as would appear from a long line of decisions.

47. In Chunni Kuar v. Dwarka Prasad 1887 AWN 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 the opinion that Musammat Chunni Kuar was and is entitled to have the money paid out of court to her and to have this appeal allowed with costs. The view I take is fortified by the judgment in Sk. Moheeooddeen v. Sk. Ahmed Hossein (1870) 14 WR 384.”

As far back as in 1887, the Allahabad High Court while considering the provisions of Section 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 v. Dwarka Prasad 1887 AWN 297 noticed a contention which is in the following terms:

“On the other hand, Mr Colvin relies upon the last part of Section 488 to show that an attachment before judgment comes to an end ‘when the suit is dismissed’; and the learned counsel also lays stress upon the provisions of Section 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 reattachment 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 v. Dwarka Prasad 1887 AWN 297 where it was held that a temporary injunction under Section 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 Section 488, like a temporary injunction under Section 492, becomes functus officio as soon as the suit terminates.”

48. 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.

49. In Gangappa v. Boregowda AIR 1955 Mys 91 (FB) a Full Bench of the Mysore High Court by referring to such proceeding as a supplemental proceeding required for grant of extraordinary relief as contradistinguished from an ancillary order which is granted in the aid of a proceeding, held: (AIR p. 95, para 10)

“10. An attachment before judgment is in the nature of an interlocutory order. It is an extraordinary 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 right to attached 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 Section 107(2) of the Civil Procedure Code. In any event the possibility of hardship cannot warrant the ignoring of the express provisions of Order 38 Rule 9 by which it is specifically laid down that an attachment before judgment shall cease by the dismissal of a suit.”

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

51. Yet again in Nagar Mahapalika v. Ved Prakash AIR 1976 All 264 it was held: (AIR p. 265, para 4)

“4. As long ago as 1887 a question of similar nature arose for consideration before this Court in Chunni Kuar v. Dwarka Prasad 1887 AWN 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 v. Pitam Mal ILR (1888) 10 All 506, (1888) 8 AWN 195. Relying on Chunni Kuar case 1887 AWN 297 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 v. Karim Bux AIR 1973 All 67, 1972 All LJ 892 before this Court as to whether on the dismissal of a suit in default an attachment 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 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.”

52. In Kanchan Bai v. Ketsidas AIR 1991 Raj 94 it was held: (AIR p. 95, para 6)

“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.”

53. In Ranjit Singh v. Dr. Sarda Ranjan Prasad Sinha AIR 1981 Pat 102, 1981 BLJR 367 following Bankim Chandra AIR 1956 Pat 271, 1956 BLJR 454 the Patna High Court holding that an order striking off the 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: (AIR p. 103, para 4)

“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.”

54. Parliament consciously used two different expressions “incidental proceedings” and “supplemental proceedings” which obviously would carry two different meanings.

55. The expression “ancillary” means aiding; auxiliary; subordinate; attendant upon; that which aids or promotes a proceeding regarded as the principal.

56. 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.

57. The expression “incidental” may mean differently in different contexts. While dealing with a procedural law, it may mean proceedings which are procedural in nature but when it is used in relation to an agreement or delegated legislation, it may mean something more; but the distinction between an incidental proceeding and a supplemental proceeding being obvious cannot be ignored.

58. 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 subserved, although the interlocutory order may not have anything to do with the ultimate decision of the court.

59. 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 remain 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 an order of attachment before judgment or an order of 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 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.

60. 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 the Code of Civil Procedure, 1908 vis-à-vis the 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-à-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.

61. 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 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 regards 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.

62**. 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 order of attachment is withdrawn.

63. 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.

64. A construction which preserves the rights of the parties pending adjudication must be allowed to operate vis-à-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.

65. 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 situations. 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 on 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.

66***. 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 on 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.

67. 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.

68. I respectfully dissent with the opinion of the Hon'ble the Chief Justice of India.

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

Order of the Court

70. In view of the majority opinion delivered by the Hon'ble the Chief Justice, on behalf of Himself and Hon'ble Mr Justice S.H Kapadia, the appeal is dismissed after granting leave. No costs.