http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 11

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 11

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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 11

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 11

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 11

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 11

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 11

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 11

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 11

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 11

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 11

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.