2004 Supreme(SC) 533

2004(3) Supreme 637
SUPREME COURT OF INDIA
(From Kerala High Court)
V.N. Khare, CJI., S.B Sinha & S.H. Kapadia, JJ.
Vareed Jacob -Appellant
versus
Sosamma Geevarghese and Ors. -Respondents
Civil Appeal No. 2634 of 2004
(Arising out of S.L.P. (C) No. 18699/2001)
Decided on 21-4-2004
Counsel for the Parties :
For the Appellant : Fazlin Anam, E.M.S. Anam, Advocates.
For the Respondents : P. Krishnamurthy, Sr. Advocate, M.T. George, Siby Sebastian, Advocates.

IMPORTANT POINT
Interlocutory orders which have been passed before the dismissal of the suit 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.

Headnote:Civil Procedure Code, 1908-Sections 94, 151; Order 39, Rules 1 and 2-Interlocutory orders-Revival with restoration of suit-Right of Court to exercise inherent powers-Suit for partition-Final decree passed on 21-5-1964-Defendant 6, granted recovery of some items died after the decree-Third defendant filed suit for setting aside the decree-Court passed an order of temporary injunction on 25-6-1969 restraining the decree holder from executing the decree-Dismissal of suit in default-Restoration of suit-Suit ultimately dismissed on 21-3-1975-Appeal filed against the decree dismissed on 11-6-1979-Execution petition filed-Judgment debtor objected on ground that Execution Petition was barred by limitation, as it was not filed within 12 years from the date of the decree-Whether decree holder was entitled to exclude the period of 5 years 8 months and 26 days between 25-6-1969 and 21-3-1975 in computing period of limitation for execution of decree-(Yes)-Whether on restoration of a suit an order of injunction passed is automatically revived-(Yes) (Majority Opinion).

       Held : V.N. Khare, CJI and S.H. Kapadia, J. (Majority Judgment)

       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 are 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. (Para 11)

       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 re-apply 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. (Para 15)

       For all the afore-stated reasons, the decree holder in this case was entitled to exclude the period of 5 years 8 months and 26 days between 25th June, 1969 and 21st March, 1975 in computing the period of limitation for execution of the decree. (Para 22)

       Minority Judgment (S.B. Sinha, J.)

       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-a-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-a-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. (Paras 58 and 59)

       From the decisions rendered by different High Courts, therefore, the law that emerges is that there exists a distinction between ancillary orders which are required to be passed by the court in aid of or supplemental to the ultimate decision of the Court; as contradistinguished to an order passed under Part VI of the Code of Civil Procedure in terms whereof an order is passed in favour of a party to the lis which may not have a bearing on the ultimate result of the suit. An interlocutory order passed in a suit may not also have anything to do with the relief prayed for by the plaintiff. An order for injunction or appointment of receiver can be passed even at the instance of the defendant. An order which has been obtained by the defendant may not revive on restoration of the suit. Supplementary proceedings, thus, envisage that such a power must be specially conferred upon the Court which are required to be passed in the interest of justice irrespective of the fact as to whether the same would ultimately have any bearing with the reliefs claimed in the suit or not. In 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. (Para 65)

       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 the Chief Justice of India. (Paras 66 & 67)