Part 1 – Arrest before Judgment (Order XXXVIII)
Order XXXVIII deals with arrest and attachment before judgment in cases where the defendant, with intent to obstruct or delay execution of decree that may be passed against him, is likely to abscond or remove property outside the jurisdiction of the court.
Section 1 empowers the court to order arrest and detention of defendant in civil prison where plaintiff satisfies the court that defendant is about to leave jurisdiction to obstruct execution, or has disposed of or removed property.
In ITC Ltd. v. Paperbase Ltd. (2002) 2 Cal LT 219, the court held that power of arrest before judgment is an extraordinary power conferred on court and has to be exercised cautiously and sparingly only when sufficient materials exist.
Section 3 states that where defendant fails to show sufficient cause, court shall order warrant for arrest with or without security for appearance.
In Kailash Chand v. Nanhku (2005) 4 SCC 480, the Supreme Court held that the power of arrest before judgment is discretionary and if exercised judicially, interference is not called for. Mere apprehension that decree may turn infructuous is not ground.
As per Section 5, no person shall be detained in prison for more than 3 days unless the court previously fixes a longer time. Court has power to release defendant on security under Section 6.
Part 2 – Attachment before Judgment (Order XXXVIII)
Order XXXVIII Rule 5 empowers the court to attach property of defendant before judgment if it appears that defendant is about to dispose of the whole or part of property with intent to obstruct execution of any decree that may be passed against him.
In Mechelec Engineers v. Basic Equipment (1977) 4 SCC 687, the Supreme Court held that power of attachment before judgment can be exercised only if there is sufficient material to reach the conclusion that defendant intends to remove property to obstruct decree execution.
As per Rule 6, court shall pass conditional order of attachment simultaneously with issue of warrant, unless sufficient security is furnished. Attachment shall be notified at defendant’s residence and proclaimed publicly.
An attachment before judgment does not affect rights of persons not parties to the suit under Rule 7. Rule 8 provides that in case of perishable property, court may sell property and deposit sale proceeds in court.
Part 3 – Temporary Injunctions (Order XXXIX)
Order XXXIX Rule 1 empowers the court to grant temporary injunction to restrain any party from committing breach of contract or injury until legal rights are ascertained.
In Dalpat Kumar v. Prahlad Singh (1992) 1 SCC 719, the SC held that temporary injunction is granted to maintain status quo. Court must be satisfied of three conditions – a prima facie case, balance of convenience and irreparable loss.
Rule 2(1) enables courts to direct parties to maintain status quo regarding property in dispute until rights decided. In Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hira Lal (1962) Supp. 3 SCR 450, the SC held courts have power to pass interim orders for preserving subject matter of dispute pending final decision.
Rule 2(2) empowers court to appoint Receiver and direct property attached before judgment to be kept in pound and deposition of rents and profits in court.
Part 4 – Interlocutory Orders (Order XXXIX)
Order XXXIX Rule 3 enables court to pass ex-parte interim orders in urgent cases where delay will entail irreparable loss to party. Such orders made ex-parte shall not last beyond 14 days.
In Shiv Kumar Chadha v. Municipal Corporation of Delhi (1993) 3 SCC 161, the SC held that interim orders can be passed ex-parte only for 14 days for temporary adjustment of matters in urgent cases where immediate remedy is warranted.
As per Rule 4, where court is satisfied that a prima facie case for relief is made out, it may grant interim order on terms of party furnishing security for any loss that may occur despite final decision going against the applicant. This provides safeguard against abuse of ex-parte orders.
Part 5 – Receiver (Order XL Rule 1)
Courts have power to appoint Receiver where it appears property in dispute requires protection. In Indian Bank v. Official Liquidator (1998) 5 SCC 70, the SC held Receiver can be appointed even if property is not subject matter of suit but connected proceedings if protection needed.
Part 6 – Security for Costs (Order XXV Rule 1)
At any stage of suit, defendant may apply for order that plaintiff furnish security for costs. If court is satisfied suit is vexatious or brought to cause delay, it may order plaintiff to provide security for costs.
In Razia Begum v. Delhi Development Authority (2014) 6 SCC 430, the SC held security for costs can be ordered where plaintiff does not have prima facie case and litigation appears speculative or initiated only to injure or harass defendant.
Part 7 – Appeals (Order XLI to XLIII)
Order XLI deals with appeals against original decrees. As per Rule 1, appeal lies against decree of District Court before High Court. Second appeal under Section 100 lies on substantial question of law.
Order XLII deals with appeals against appellate decrees. Appeal against decree of Single Judge lies before Division Bench of High Court under Rule 1. In Shanti Kumar R. Chanji v. Home Insurance Co. of New York (1974) 2 SCC 430, the SC held that an appeal raises a rehearing on law as well as fact and jurisdiction of appellate court is co-extensive with trial court.
Order XLIII deals with appeals against orders not decrees. As per Rule 1, appeal against interlocutory orders lies only if order expressly appealable under law.
Part 8 – Execution of Decrees (Order XXI)
Order XXI deals with execution of decrees. Decree holder has to apply for execution within limitation under Rule 11. As per Rule 22, court can transmit decree for execution to another court. The court which passed decree has control over execution under Rule 23.
Rule 30 provides that a decree for payment of money can be executed by attachment and sale of judgment debtor’s property. Section 51 provides modes of executing decrees like delivery of property, attachment of property, arrest etc. Rule 98 recognises doctrine of partial adjustment.
In Milkhiram v. Chamanlal (1965) 1 SCR 227, the SC held execution proceedings are aimed at realisation of decree and should not be prolonged indefinitely. Court has power to ensure decree holder does not abuse process.
