FAO (COMM) 137/2026 Page 1 of 21

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* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment Reserved on: 12.05.2026

Judgment pronounced on: 29.05.2026

Judgment uploaded on: As per digital signature~

+ FAO (COMM) 137/2026 CM APPL. 31934/2026 CM

APPL. 31935/2026 CM APPL. 31936/2026

M/S ILD HOUSING PROJECTS PRIVATE LIMITED

FORMERLY KNOWN AS INTERNATIONAL LAND

DEVELOPERS PRIVATE LIMITED

..... Appellant

Versus

ACRES BUILDWELL PRIVATE LIMITED

..... Respondent

Advocates who appeared in this case

For the Appellant : Mr. Mohit Arora and Mr. Paras Arora

Advocates

For the Respondent : Mr. Arav Kapoor, Mr. Nitin Saluja,

Mr. Mayank Agarwal, Ms. Pranya

Madan and Mr. Prateek Advocates

CORAM:

HON'BLE MR. JUSTICE DINESH MEHTA

HON'BLE MR. JUSTICE VINOD KUMAR

JUDGMENT

REPORTABLE

Per VINOD KUMAR , J.

1.The present first appeal under Section 13 of the

Commercial Courts Act, 2015 read with Order XLIII Rule 1(r)

FAO (COMM) 137/2026 Page 2 of 21

of the Code Of Civil Procedure, 1908 (in short “CPC”) is

directed against order dated 30.04.2026 passed by learned

District Judge, Commercial Court-02, District South, Saket (in

short “District Judge”) in CS (COMM) 460/2025.

2.For better comprehension and for the sake of

convenience, the respondent would be referred as ‘Plaintiff’

and appellant would also be referred to as ‘Defendant’.

3.Before coming to the submissions of parties, it would be

appropriate to briefly state the pleadings before the trial court.

PLAINT

4.As per the pleadings of the plaint, the respondent-

plaintiff filed a suit against the appellant-defendant stating that

plaintiff is a reputed construction company doing the business

of executing civil, contractual and finishing work for

prominent developers/builders and government projects. The

defendant is engaged in the business of real estate development

undertaking numerous residential and commercial projects.

The defendant issued a Letter of Intent dated May 14, 2024 in

favour of plaintiff awarding the work of completion of civil

works of towers at Village Dhunella, Sector-33, Sohna

District, Gurugram. It is averred in para 8 and 9 of the plaint

that the plaintiff immediately upon issuance of Letter of Intent

undertook substantial mobilization at defendant’s project site.

In order to execute the assigned civil and structural work of the

towers A, B, C and D, the plaintiff arranged, mobilized and

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deployed a wide range of machinery, scaffolding, shuttering,

tower hoists, bar cutting machines, monkey lifts, material

trolleys, cement mixers, diesel generators and allied equipment

essential for high-rise construction from reputed suppliers such

as Deesons Traders (scaffolding and shuttering materials),

Rohit Engineering Works (Monkey Crane, trolley/lifting

machinery), AS Engineering Company (Tower hoists/Material

hoist), C-MAC (Passenger Hoist), ACE (Tower Crane Model

No.5034), RRA enterprises (Bar cutting, Bar bending and ring

making machine), and Ayaan Power Tools (grinder and Hilti

hammer machines), amongst others.

5.It was averred in para 10 of the plaint that equipments

and materials mobilized by plaintiff were partly owned by

plaintiff and partly hired on a monthly rental basis from

reputed suppliers. Further the plaintiff procured large

quantities of cement shuttering wood, PPGI sheets, MS plates,

steel channels and consumables from various vendors.

6.The case of the plaintiff that the terms governing

engagement of plaintiff by defendant were crystallized in

Letter of Intent dated 14.05.2024 issued by defendant in favour

of plaintiff. It provided that the plaintiff would execute civil

and contractual works in Towers A, B, C, D and the

defendant’s project. The Letter of Intent expressly stipulated

the mode and timeline of payment, process and certification of

Running Account (RA) Bills by Engineer-in-charge/Project

Manager Consultant. In para 15 of the plaint, it is averred that

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despite certification of RA bills, the defendant not only

withheld the certified payment due under RA-8 (the final bill)

but also refused to release the machinery and material

belonging to the plaintiff at the site. Accordingly, the plaintiff

prayed for recovery of Rs.1,44,54,021.99 being certified dues

under RA-8 (final bill), and other rentals more specifically

prescribed in prayer clauses along with the interest. The

plaintiff also prayed for a mandatory injunction directing the

defendant to deliver and handover to the plaintiff the

possession of all the machinery, plant, equipments etc. as well

as the material as mentioned in the plaint.

AVERMENTS IN WRITTEN STATEMENT

7.In written statement, the defendant admitted issuing of

Letter of Intent dated 14.05.2024 and admitted that the

contractual relations between the plaintiff and the defendant

were governed by aforesaid Letter of Intent but alleged chronic

manpower shortage, failure to own commitments, execution of

barely 13 to 15 percent contracted work and inability of the

plaintiff to maintain work and construction schedules etc. The

defendant averred that these machineries were left behind by

the plaintiff upon abandoning of work and the same were

retained only with a view to secure the recovery of excess

advance made by plaintiff. It was averred that owing to

continuous non performance and slow progress, the scope and

value of work was drastically reduced, rendering a significant

portion of mobilization advance excess and recoverable. It was

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further averred that plaintiff had deliberately avoided

reconciliation of accounts. However defendant denied having

obstructed the plaintiff from removing his machinery. In para

32 of reply on merits, it was stated that the plaintiff had

executed only 13 percent of the contractual work from June

2024 to June 2025 and RA-1 to RA-7 were fully PMC certified

and were paid in entirety (Rs.2,44,75,000/-) against certified

amount of Rs.3,00,10,782/-. It was further averred that RA-8

stood certified at Rs.1,21,35,157.18 and that no certified

amount remains unpaid. Accordingly, the defendant prayed for

dismissal of suit.

APPOINTMENT OF RECEIVER

8.Vide order dated 29.11.2025, learned District Judge on

the request of the plaintiff appointed a Receiver to visit the site

of project and prepare an inventory of machinery belonging to

the plaintiff available at the project site and seal them with a

view to protect them.

THE IMUGNED JUDGMENT/ ORDER

9.Learned District Judge passed impugned order on an

application of the plaintiff filed under Order XII Rule 6 read

with Order XXXIX Rule 1 and 2, Order XXXIX Rule 10,

Order XXVI Rule 9 read with Section 75 and Section 151 of

CPC seeking directions for return and demobilization of

plaintiff’s machinery and material. After hearing the arguments

learned District judge took note of the averments in para 10 of

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the written statement wherein it was mentioned that “defendant

has never refused to return machinery or obstructed the

plaintiff from removing its equipments from the project site”.

This averment was succeeded by the words “demobilization of

machinery could be carried out in an ordinary manner after

conciliation and settlement of account particularly in view of

the excess mobilization advanced paid to the plaintiff and the

amount recoverable therefrom.” Learned District Judge duly

considered the plea of the defendant that the aforesaid

averments should not be termed as admission by the defendant

rather the aforesaid statement was a qualified statement which

means that the defendant would release the said machinery

after settlement of accounts. Learned District Judge noted that

there is admission by the defendant that the machinery

mobilized by the plaintiff was on project site and there was no

dispute on this fact. That being the status, learned District

Judge asked the defendant as to whether the defendant would

be willing to pay the rental of the machinery lying at the

project site under their possession. This question was put in

light of the situation that the plaintiff was incurring the rentals

for the said machinery without being put to any use by the

plaintiff. In para 22 of the impugned judgment learned District

Judge noted that the Counsel for the defendant refused to

accept this offer. In such situation learned District Judge

deemed it fit to decree the suit partly under Order XII Rule 6

CPC directing delivery of machinery and equipments to the

plaintiff.

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10.Thereafter in exercise of her powers under Order

XXXIX Rule 10 CPC, learned District Judge passed directions

to the Local Commissioner to de-seal the machinery lying at

the project site and handover the same to the plaintiff.

SUBMISSIONS OF THE PARTIES IN THE PRESENT

APPEAL

11.Aggrieved by said part decree under Order XII Rule 6

and directions under order XXXIX Rule 10 CPC vide

impugned judgment/order, the present appeal has been filed by

the defendant. The challenge is on two grounds; (i) the

admission in Written Statement in respect of machineries is not

straight rather it is qualified and therefore, a judgment under

Order XII Rule 6 CPC should not have been passed (ii) once a

judgment under Order XII Rule 6 CPC is passed, it is required

that proper decree should have been drawn. Only thereafter the

order of delivery of machinery could have been executed

provided Decree Holder files an execution petition praying for

the execution of the part decree. It is argued that learned

District Judge has practically ordered execution of its own

decree by taking recourse to Order XXXIX Rule 10 CPC and

usurped the execution powers, which only an Executing Court

was entitled to exercise.

12.On the contrary, learned Counsel for respondent-

plaintiff argued that there is no dispute that machinery belongs

to the plaintiff and no contractual authority is accorded to the

appellant-defendant to withhold the machinery in any of the

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terms and conditions of the Letter of Intent. Further, the

plaintiff was incurring huge losses in terms of rentals because

of withholding of the machineries by the defendant and that is

the reason learned District Judge put a proposal to the

defendant as to whether they were ready to pay the rentals of

the machineries. This proposal was declined by the defendant

without any justified reason.

13.It is argued by learned Counsel for the respondent-

plaintiff that in para 23 of the impugned order, learned District

Judge has noted that it is not in dispute that

machineries/equipments belong to the plaintiff. The plaintiff

had placed on record the bills of these machineries/

equipments. The defendant has no where stated that

machineries/equipments do not belong to the plaintiff and has

also not denied that the documents had been placed along with

the suit. Learned District Judge noted that machinery/

equipments are subject to depreciation and decay and keeping

them lying under seal and custody of court will not serve

anybody’s purpose. It is argued that in light of this observation,

learned District Judge proceeded to direct the delivery of the

machinery/equipments to the plaintiff in exercise of her powers

under Order XXXIX Rule 10 CPC. Regarding the scope of

order under Order XXXIX Rule 10 CPC, learned Counsel for

the respondent-plaintiff had drawn our attention to para 13 and

14 of the impugned judgment-order which discusses the power

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of court to deliver a thing which a party admits belong to the

another party.

ANALYSIS AND OUR VIEW

14.We have considered the submissions of the parties. The

first part of the challenge is to the judgment passed under

Order 12 Rule 6 CPC. Argument of appellant-defendant is that

the averments in Written Statement regarding withholding of

machinery are conditional and therefore the trial court erred in

passing a decree under Order XII Rule 6 CPC. This issue was

raised before the learned District Judge, who dealt with it

appropriately by referring to the admission of defendant in

Written Statement. More specifically in para 12 on merits,

where defendant writes “at no point did defendant refused

return of machinery – the defendant only sought reconciliation

and adjustment of account in accordance with the contract”.

Learned District Judge took note of the reply in para 20 of

Written Statement where defendant writes “that it was denied

that defendant ever refused access to plaintiff for mobilization

or removal of its property”. For our satisfaction we have

perused the trial court record to find out as to what are the

admissions of the defendant-appellant in written statement.

Perusal of the plaint and written statement discloses following

admissions:

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(i)The obligations between the parties in respect of

the work at the project site are governed by Letter

of Intent dated 14.05.2024.

(ii)Pursuant to the aforesaid Letter of Intent, the

plaintiff mobilized machineries/equipments at the

project site.

(iii)Letter of Intent does not authorize the defendant

to withhold the machinery till finalization of any

dispute regarding the contract.

(iv)Though there is dispute about the RA-8 bill, there

is no dispute as to whom the machineries/

equipments belong. Needless to say, the same

belong to the plaintiff. Therefore, the admission is

clear and unambiguous and the same cannot be

termed as conditional.

15.In view of the aforesaid clear and unambiguous

admissions, there remains no doubt that the plaintiff is entitled

to release his machinery and therefore in exercise of power

under Order XII Rule 6 CPC, the Trial court rightly partly

decreed the prayer made in the plaint for issuing mandatory

injunction for release of the machineries/equipments. Needless

to say, the monetary claims including the claim for RA-8 bill

would remain subject matter of the trial. Therefore, we find no

infirmity in the impugned judgment passing a part decree

under Order XII Rule 6 CPC on the basis of admissions.

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16.Now we take up the issue as to whether learned District

Judge was empowered to order delivery of the

machines/equipments under Order XXXIX Rule 10 CPC or

not. In other words, the issue is whether the Trial Court should

have first prepared the decree and thereafter the plaintiff

should have filed execution petition for getting the machinery

released and only then the trial court should have issued

direction for release of machinery/equipments. The answer to

this question lies in the language of Order XXXIX Rule 10

CPC itself. The same is reproduced as under:

“10. Deposit of money, etc., in Court. – Where the

subject-matter of a suit is money or some other thing

capable of delivery and any party thereto admits that he

holds such money or other thing as a trustee for another

party, or that it belongs or is due to another party, the

Court may order the same to be deposited in Court or

delivered to such last-named party, with or without

security, subject to the further direction of the Court.”

17.Learned District Judge specifically quoted this provision

to hold that the court had power to pass an order of delivery of

machinery/equipments in this case to the plaintiff. The reason

for passing such a direction has been dealt with by the learned

District Judge in para 22 of the impugned judgment/order,

which is reproduced as under:

“22. During the course of argument the Court asked Ld.

Counsel for defendant if the defendant would be willing to

pay the rental of the machinery lying at his premises as

the plaintiff cannot be made to pay the rental for the

machinery which continues to be lying in the property of

defendant and is not being used by the plaintiff. Ld.

Counsel for the defendant stated that defendant cannot be

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made to pay the rental as it has to recover money from the

plaintiff.

The defendant thus wants to bold on the

machinery/equipment but not pay the rental and is trying

to compel the plaintiff to keep paying the rental while the

machinery/equipment remains lying at the premises of

defendant with neither party actually using them. It is thus

a clearly loss loss situation for both the parties. I am

unable to understand as why the defendant would insist on

keeping the rented machinery which it is not using and

which cannot be sold by plaintiff or defendant for recovery

of any money from either side, it being the property of a

third party. The machinery/equipment which the plaintiff

has taken on rent and with respect to which the plaintiff

has placed the documents on record, can thus not be

allowed to be retained by the defendant under any

circumstance, whatsoever.”

18.While fully agreeing with the aforesaid view of the trial

court, we would like to elaborate on the scope of power of a

civil court under Order XXXIX Rule 10 CPC. Indisputably it

is not a case of bailment under Indian Contract Act, 1872. Here

we would like to refer to a judgment of Division Bench of our

own High Court, namely, Nokia Technologies OY vs.

Guangdong Oppo Mobile Telecommunications Corp. Ltd.

and Ors. MANU/DE/4140/2023 (a judgment dated

03.07.2023), in which the Division Bench was considering as

to whether the test applicable for passing a judgment under

Order XII Rule 6 CPC can be imported into Order XXXIX

Rule 10 CPC. The relevant paras of the judgment are

reproduced as under:

“64. This Court is of the view that the impugned judgment

incorrectly holds that the scope of Nokia's application

under Order XXXIX Rule 10 is narrower than under

Order XII Rule 6 CPC.

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65. This is because Order XII CPC deals with

"Admissions" whereas Order XXXIX CPC deals with

"Temporary Injunctions and Interlocutory Orders". The

language of Order XII Rule 6 CPC requires an "admission

of fact", whereas Order XXXIX Rule 10 CPC only requires

a party to admit that money is due to other party. Further,

the Court is entitled under Order XII Rule 6 CPC to pass a

judgment on admission as the Legislature itself

conceptualized Order XII Rule 6 CPC to be applicable on

an admission "of fact" where no further trial is required

by the court to deliver its judgment, whereas the Court is

entitled under Order XXXIX Rule 10 CPC to pass interim

orders.

66. The said admission though sufficient for an interim

deposit order under Order XXXIX Rule 10 CPC, is further

subject to the outcome of trial. Thus, as Order XXXIX Rule

10 CPC has been enacted for passing interim orders

pending the final outcome of the suit only, the threshold

for admissions necessarily has to be different than that

under Order XII Rule 6 CPC.

67. Had the scope been narrower, or even identical, then

the Legislature in its wisdom, would not have enacted two

separate provisions of law to cater to two different

situations.

68. The Division Bench of the High Court of Bombay in

Rajul Manoj Shah vs. Navin Umarshi Shah (supra) has

rightly held that the threshold of admission required for

applicability of the two provisions is different and

applying a strict standard of Order XII Rule 6 CPC would

make the existence of Order XXXIX Rule 10 CPC otiose.

This Court is also in agreement with the view of the

Bombay High Court in Rajul Manoj Shah vs. Navin

Umarshi Shah (supra) to the extent it disagrees with the

ratio of the judgment of the learned Single Judge of this

Court in Harish Ramchandani vs. Manu Ramchandani

(supra) and holds that the test applicable for passing a

judgment on admission under Order XII Rule 6 cannot be

imported in Order XXXIX Rule 10 CPC which empowers

the Court to pass an interim order. The relevant portion of

the judgment in Rajul Manoj Shah (supra) is reproduced

hereinbelow:-

22. ..... The power under Rule 10 of Order XXXIX

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is a power to pass an interim order pending suit.

But the power under Rule 6 of Order XII is a

drastic power of passing a decree on admission

without conducting trial. The standards

applicable to a provision conferring power to

pass a decree on admission cannot be applied to

Rule 10 of Order XXXIX which empowers the

Court to pass an interim order. Therefore, in our

view, the test applicable for passing the judgment

on admission under Rule 6 of Order XII of the

said Code cannot be imported in Rule 10 of

Order XXXIX...

69. This Court is further of the opinion that the judgment

of the Supreme Court in Karan Kapoor v. Madhuri Kumar

(supra) does not hold that the test of Order XII Rule 6

CPC has to be applied while deciding an application

under Order XXXIX Rule 10 CPC.

…………………………………………………………..

70. …………….................................................

71. …………………………………………………..

72. …………………………………………………..

In any event, court can exercise powers under Section 151

CPC read with Order XII Rule 6 or Order XXXIX Rule 10

CPC may not be applicable for purpose of doing justice.

73. In any event, this Court is of the view that in exercise

of its inherent power under Section 151 CPC as an interim

measure, it can pass a pro-tem order for balancing the

equities with a view to aid a party.

74. ………………………………………………….

75. ………………………………………………….

76. A learned Single Judge of this Court in Sanjay Gupta

vs. Cottage Industries Exposition Ltd.,

MANU/DE/0044/2008 quoted with approval the decision

in Surjit Singh vs. H.N. Pahilaj, MANU/DE/1189/1996,

wherein it was held that every Court is constituted for the

purpose of doing justice according to law and must be

FAO (COMM) 137/2026 Page 15 of 21

deemed to possess by virtue of Section 151 CPC, as a

necessary corollary and as inherent in its very

constitution, all such powers as may be necessary to do

the right and to undo a wrong in the course of the

administration of justice. In the said case, it was further

held that in appropriate cases, the Court can exercise

powers under Section 151 CPC where Order XII Rule 6 or

Order XXXIX Rule 10 CPC may not be applicable for the

purpose o doing justice or to prevent abuse of the process

of the Court.

77. A Division Bench of the High Court of Bombay

(Nagpur) in Chandrakant Shankarrao Deshmukh vs.

Haribhau Tukaramji Kathane & Ors.,

MANU/MH/0519/1982 has also held that whereas the

principle and provisions of Section 151 CPC can be

exercised and utilised in aid and in furtherance of the

provisions expressly made in the CPC, they cannot be

employed as against the said provisions.

78. Consequently, a combined result of Section 151, Order

XII Rule 6, Order XXXIX Rule 10 CPC is that the Courts

have the power to pass orders for deposit of money

pending decision in a suit, if the facts so warrant. Section

151 CPC can be called in aid to cover cases which are

analogous to these principles but may not be directly

covered by the express words in the Code.”

19.The perusal of the aforesaid judgment would show that

Order XII Rule 6 CPC and Order XXXIX Rule 10 CPC

sometimes may be overlapping as both the provisions play on

‘admission’ but their applicability works in different domains.

Order XXXIX deals with temporary injunction and

interlocutory orders which may be passed during pendency of

a suit. Therefore, if a suit is partly decreed and on remaining

issues, the trial is pending, a civil court would have full power

to exercise power under Order XXXIX Rule 10 CPC to direct

delivery of a thing to the appropriate party. There may be

situations where there is no part decree on admissions under

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Order XII Rule 6 CPC, still a civil court has power to deliver a

thing to another party in the given conspectus of facts. As an

example, we may envisage a situation in which there a dispute

about the truck load of bananas withheld by a party. A civil

court would be fully entitled to pass an order under Order

XXXIX Rule 10 CPC to direct its delivery to a party lest such

huge quantity of bananas gets rotten and becomes unsalable

and unfit for human consumption. Similar is the situation here

in which the machinery/equipments are lying at the project site

since October 2025 giving no earning to the plaintiff and are of

no benefit to the defendant and are also depreciating.

Therefore, learned District Judge took a right decision by

passing the order of release of the machineries/equipments to

the plaintiff who either owned the same or arranged the same

on rentals. In the present case, the machines and equipments

were already in control of the court as the same had been

seized by its order. This situation warranted that these

machines and equipments should be released at the earliest to

the entitled party.

20.To our mind, there may be situations which do not

strictly fall under Order XXXIX Rule 10 CPC or Order XII

Rule 6 CPC but if interest of justice demands, appropriate

order for delivery of a property should be passed or an interim

measure should be ordered. In Nokia Technologies OY

(Supra), the coordinate Bench of this Court clearly held that in

such situation, the civil court is not powerless and in

FAO (COMM) 137/2026 Page 17 of 21

appropriate cases it can pass a pro tem order for balancing the

equities in exercising of its inherent powers under Section 151

CPC with a view to aid a party.

CONCLUSION

21.The conclusion is that a direction under Order XXXIX

Rule 10 CPC is not dependent upon passing a part decree

under Order XII Rule 6 CPC. In the given facts of the present

case, the trial court could have passed an order under Order

XXXIX Rule 10 CPC for delivery of machines even without

passing a part decree under Order XII Rule 6 CPC. Therefore,

non preparation of a part decree under Order XII Rule 6 CPC

and non filing of execution petition for executing the said

decree are not the factors to be taken in account while

considering validity of a direction passed under Order XXXIX

Rule 10 CPC. When there is necessity or urgency, a civil court

can order release of an article from one’s custody to another’s

custody. Therefore, we find no substance in the argument that

instead of passing a direction under Order XXXIX Rule 10

CPC, the court should have waited for the filing of an

execution petition by the plaintiff.

22.We would like to add here that entire purpose of Order

XXXIX CPC is to take care of the immediate needs,

necessities and urgencies. These provisions cast a

responsibility upon the civil courts to act with alacrity and rise

to the occasion to protect the properties and proprietary rights

FAO (COMM) 137/2026 Page 18 of 21

of the litigants. Yes, in anxiety to recover outstanding dues,

sometimes a party may resort to the tactics of withholding the

machinery of the other party, but such anxiety cannot be

allowed to result in depletion of the value and condition of the

property. It should not be forgotten that the vehicles, the

machineries and equipments are national wealth. These may

belong to an individual or a company but at the same time

these are assets of the nation and society and keeping them in

operation is necessary for national economy, societal needs

and development projects. Similarly, the eatables and

consumables including medicines and food items must be

released as soon as possible, otherwise same would result in

national wastage.

23.In conclusion, we hold as under:

(i) Though Order XII Rule 6 CPC as well as Order

XXXIX Rule 10 CPC spring out from admission of a

fact by a party, both work in different spheres.

(ii) A civil court can pass an order of delivery of a

thing to another in cases covered under Order XXXIX

Rule 10 CPC independent of any judgment/ decree

under Order XII Rule 6 CPC.

(iii) At the time of passing an order of delivery of an

article to a party under Order XXXIX Rule 10 CPC, the

court can take measures for getting such order complied

with, if so required in view of specific facts and

FAO (COMM) 137/2026 Page 19 of 21

circumstances of the case considering the urgency or

necessity.

(iv) There may be situations where a case may not fall

within four corners of Order XXXIX Rule 10 CPC in

the sense that there may not be any admission on the

part of the opposite party. In such situation as held in

Nokia Technologies OY (Supra), the court is not

powerless, rather it can use its power under Section 151

CPC and in exercise of its inherent powers, can pass

appropriate directions or interim measures and can get it

executed also without following the procedure under

Order XXI CPC, like in the example of huge quantity of

bananas cited above, which is likely to be wasted soon if

immediate order is not passed.

(v) If the contract between the parties contains

clauses of custody, control, seizure etc., of machinery

etc., the court will give effect to the same as far as

possible, but if there is no such clause or the clause is

vague, the court can look into the facts and

circumstances of the case and pass a best option order in

interest of justice under Section 151 CPC ensuring that

machinery is put to best use.

(vi) In suitable cases, the civil courts should seek

security from the person to whom such delivery of

article is being made.

(vii) If a vehicle, machinery is owned by one party and

is hypothecated to another party, the court can pass an

FAO (COMM) 137/2026 Page 20 of 21

order of delivery to the owner or to the party to whom

such vehicle is hypothecated and can take proper

security from any of them to protect the interest of the

owner or the party to whom such vehicle, machineries

have been hypothecated.

(viii) Thus the scope of application of Order XXXIX

Rule 10 CPC is broader than Order XII Rule 6 CPC.

Further, the scope of inherent powers of the court under

Section 151 CPC for delivery of an article during the

pendency of a suit is further more wider than that under

Order XXXIX Rule 10 CPC. However, these powers

should be exercised with due caution and

circumspection.

24.Accordingly, we are of the considered opinion that

learned District Judge has judiciously exercised her powers

under Order XXXIX Rule 10 CPC.

25.At this juncture, we would like to point out that the

plaintiff had filed an omnibus application under Order XII

Rule 6 CPC, Order XXXIX Rule 10 CPC and other provisions

of CPC before the trial court. In our opinion, the plaintiff

should have filed two separate applications, one application

under Order XII Rule 6 CPC and the second application under

Order XXXIX Rule 10 CPC. This could have enabled learned

District Judge to pass the judgment on admission and part

decree under Order XII Rule 6 CPC and a separate order under

Order XXXIX Rule 10 CPC. The difference between

FAO (COMM) 137/2026 Page 21 of 21

‘judgment’ and ‘order’ is that a ‘judgment’ partly or finally

determines the rights of parties whereas an ‘order’ is any other

adjudication which is not a ‘decree’. We refer to Section 2(9)

and (14) of CPC which define “judgment” and “order”.

Learned District Judge has decided an application under Order

XII Rule 6 CPC and application under Order XXXIX Rule 10

CPC under the heading “order”, which is not correct. At the

cost of repetition, a ‘judgment’ and ‘decree’ is passed under

Order XII Rule 6 CPC whereas a direction under Order

XXXIX Rule 10 CPC would be termed as ‘order’. As learned

District Judge has passed a judgment under Order XII Rule 6

CPC partly decreeing the suit, she shall draw a formal decree

in accordance with Section 33 read with Order XX CPC.

26.Needless to say, we find no infirmity in the impugned

judgment and order. The appeal is dismissed.

27.Pending applications are also disposed of.

VINOD KUMAR, J

DINESH MEHTA, J

MAY 29, 2026

VB