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“This belongs to me” “No! This belongs to me” A dispute was going on between two persons. Party A was asking Party B
to abandon the premises and stop construction activities because that property is their ancestral property and after the
death of their father it should belong to them. Likewise, Party B was declaring that the property had been sold to him by
the father of Mr A so he has ownership of that property and he will not stop construction activities. Since the dispute was
unresolvable by mere discussion or meeting so party A filed the case in the court. The court to protect both the parties
from incurring any loss passed an order to stop construction activities on the disputed property with an immediate effect.
This order has been passed to protect parties from any irreparable loss till the final judgment will be passed by the court.
In the language of the law, this order is known as an interim order.
1. Directive Order– The courts issue a directive order to instruct either party to act in a specific way until the trial
ends or a further order is issued. If not continuing the action would harm the other party then the courts can issue
a directive interim order.
2. Restraining Order– The courts issue a restraining order to prevent any of the parties from acting in a specific
way while the civil lawsuit is pending. The courts issue these orders to prevent any party from being harmed
because the other party may have continued acting upon the issue involved in the suit.
The granting of interim order depends on the scope and nature of the facts and circumstances of each case because it is
impossible to provide a single formula for the calculation of the same. In certain situations where the defendant can use
the property involved in the dispute in such a way that the situation becomes irreparable, these temporary reliefs should
be granted by the court.[3] Three basic principles have been laid down by courts based on which interim orders can be
granted viz.
1. There should be a prima facie case in favour of the party who is seeking the interim order,
2. The balance of convenience should lie with the party who is requesting the interim order,
3. If the interim order will not be passed by the court then the party will have to face irreparable damage or loss and
also it will be troublesome to ascertain the loss in terms of money.[4]
It is the responsibility of the court to strike a balance between the two extreme positions. On the one hand, if the interim
order is rejected, will the petition itself become fruitless and on the other hand, if the interim order is granted, then the
other party may suffer huge losses and hardships, considering that the losses suffered by the affected party, in this case,
are irreparable.[5] So, various other conditions have also been laid down which courts can weigh while deciding petitions
demanding grant of interim relief-
i. The scope of compensation should be sufficient as a remedy.
ii. Protect the interests of the plaintiff from infringement of their rights, considering the harm that may be suffered by
the defendant as a result of it.
iii. In handling these applications, the court should not ignore that one party has stronger factum strength of the case
than the other party.
iv. While granting injunctions, there should not be any fixed rule or concept, but granting should be based on the
facts and circumstances pertaining to each case (the relief should remain flexible).
v. One should consider whether the plaintiff will or will not suffer irreparable losses and injuries if the injunction will
be refused, keeping in mind the strength of the litigants.
vi. Even if there are serious problems or preliminary evidence to support the grant, the balance between
convenience and inconvenience should be considered a principal requisite.
vii. Whether the grant or rejection of an injunction will adversely affect the interest of the public which can or cannot
be compensated.[6]
The court in Deoraj vs. State of Maharashtra & Ors[7] has said that, only when it is satisfied that the withholding of
interim order will prick the court’s conscience and violently violate judicial justice, causing injustices to persist throughout
the hearing, and the court will not be able to maintain justice, the court can grant such temporary relief.
i. The plaintiff lives outside of India, or there are two or more plaintiffs, and they all live outside of India; and
ii. The sole plaintiff or no plaintiff owns sufficient real estate other than litigation property in India.[12]
The purpose of this rule is to provide protection to defendants in some instances, where if the case became successful
from the side of the defendant, they may have difficulty in realizing their costs from the plaintiff.[13]
3. Commissions: Order 26
Section 75 to 78 of the CPC deals with the power of the court to issue a commission, which has been further detailed in
Order 26 of the Code. The power of the court to issue commissions can be exercised by the court on its discretion. The
court establishes complete justice between the parties. The court can exercise this right at the request of the parties
involved in the litigation or by a suo moto action. According to Section 75, a court may issue a commission for any of the
following purposes:
Since the arrest of the defendant before passing the judgment in favour of the plaintiff is an extreme action so it should be
performed with due care and caution. The court before passing such an order should ensure that if this order will not be
passed then there is a real danger of losing the defendant and his property as the defendant can remove them from the
jurisdiction of the court.[16] So, the court should always look at Rule 1 before passing any order requiring the arrest of the
defendant before judgment. Rule 1 laid down-
Where, at any stage of the litigation, an affidavit or other means is used to satisfy the court that-
a. the defendant intentionally delays the plaintiff or avoids any court procedure, or hinders or delays the execution of
any decree that the litigation may take against him,
o absconded or has left the local limits of the court’s jurisdiction, or
o is about to abscond or left the local restrictions of the court’s jurisdiction, or
o has disposed of or removed its property or any part of its property from the local restrictions of the court’s
jurisdiction,
b. When there is a reasonable possibility that the defendant will leave India and obstruct or delay the enforcement of
any decree passed against the defendant by the court and hinders the interest of the plaintiff. The court can issue
an arrest warrant against the defendant, arrest the defendant, and bring him to the court to show the reason why
he should not provide a guarantee for his appearance in court[17]. However, if the defendant pays to the officer
(executing the warrant) the amount specified in the bond sufficient to satisfy the plaintiff’s claim, he shall not be
arrested.[18]
i. any land or immovable property suit as specified in Article 16 (a) to (d) of the Code, or[19]
ii. to convert unsecured debt into secured debt to ensure easy enforcement of laws[20]
i. The plaintiff’s lawsuit must be in good faith, and the cause of the lawsuit must be ostensibly irrefutable, but the
premise is that he must prove the accusation in the plaint,
ii. the court must have reason to believe that unless this extraordinary power is exercised there is a real danger that
the defendant will remove himself or his property from the scope of the court’s power.[21]
The plaintiff can put an application for arrest at any time after the plaint is presented, even before a summon is served to
the defendant.
If at any stage of the litigation, the court satisfies through an affidavit or other means that the defendant to prevent or
delay the enforcement of an order that may be directed against him,
Unless the court directs otherwise, the plaintiff should specify the property which is to be attached with its estimated
value.[24] The court can also order all or any part of the property to be directly and conditionally attached. If an
attachment order is issued that does not comply with Rule 5(1), the attachment will be invalid.[25]
The court cannot order the attachment or production of any agricultural products owned by agriculturists.[26]
Types of Injunction
Injunctions can be classified into various types-
A permanent injunction will forever restrict a party from performing a specified act, and a ruling can only be granted on the
merits of the case after the hearing of both parties is over. On the other hand, a temporary injunction restricts the parties
temporarily from not performing specified actions and can only be approved before the litigation or until a further court
order is dealt with.[28]
Injunctions will be preventive if they prevent, prohibit or restrict someone from doing something; or mandatory when they
force or order someone to do something.
An ad interim injunction order is granted without a final decision on the injunction order and remains effective until the
application is processed. Usually, an interim injunction is granted while finally deciding the main application and the
injunction will continue until the litigation is dealt with.
8. Receiver: Order 40
A receiver is an independent person appointed by the court between the parties to the litigation. He can accept the funds
or property in the litigation, whenever it is believed by the court that it is unreasonable for either of the party to hold
property or funds. The main object behind appointing a receiver is to preserve, protect, and manage the property of the
suit and safeguard the interests of both litigants involved in litigation, in the course of the pendency of the litigation.
Powers of Receiver
The court may grant any of the following power to the receiver-
i. File a lawsuit and defend it;
ii. Realize, manage, protect, preserve and improve property;
iii. Collect, use and dispose of profits and rents;
iv. Executing documents; or
v. These powers that it considers appropriate.
Liability of Receiver
If the receiver fails to give in to the account or is unable to pay the outstanding amount, or due to deliberate breach of
contract or negligence caused damage to the goods then the court may instruct the seizure and sale of any of his
property, and make up any money due to him.
Conclusion
This article has discussed in detail interim orders, various important questions relating to interim orders have been
answered in this article for example, what are interim orders, types of the interim order, when courts can pass interim
orders, what will happen if interim order will not be complied by the person against whom it is passed and what is the
scope of interim orders under CPC. It could be said that interim orders play a very vital role in smoothly conducting
litigation proceedings as they help in dealing and protecting the rights of the litigants in the period between the
commencement of proceedings and pronouncement of final judgment. To preserve, protect and spread justice in society
courts require this power of passing interim orders because with the help of it they would be able to avert the defendant
from escaping liability which could be imposed on him by the court at the time of final