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Code of civil procedure 1908 suplementary proceedings

This presentation explains what is supplementary proceedings. When court may issue arrest warrant before judgment, when court order attachment before judgment, when court may issue temporary injunction, when a receiver may be appointed.

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Code of civil procedure 1908 suplementary proceedings

  1. 1. Dr. Khakare Vikas Code of Civil Procedure 1908 Supplemental proceedings Dr. Khakare Vikas Asso. Prof. Narayanrao Chavan Law College, Nanded, India
  2. 2. Dr. Khakare Vikas Supplemental Proceedings • A supplemental proceeding can be initiated at any stage of suit. Supplemental proceeding can be possible by either party to suit. • In order to prevent the ends of justice from being, defeated the Court may, if it is to prescribed, • a.Issue a warrant to arrest the defendant and bring him before the Court to show cause why he should not give security for his appearance, and if he fails to comply with any order for security commit him to the civil prison;
  3. 3. Dr. Khakare Vikas --- • b.Direct the defendant to furnish security to produce any property belonging to him and to place the same at the disposal of the Court or order the attachment of any property; • c.Grant a temporary injunction and in case of disobedience commit the person guilty thereof to the civil prison and order that his property be attached and sold; • d.Appoint a receiver of any property and enforce the performance of his duties by attaching and selling his property; • e.Make such other interlocutory orders as may appear to the Court to be just and convenient.[ Section 94]
  4. 4. Dr. Khakare Vikas ARREST BEFORE JUDGMENT [Order XXXVIII] (a) Where Court is satisfied that, • that the defendant, with intent to delay the plaintiff, or to avoid any process of the Court or to obstruct or delay the execution of any decree that may be passed against him: i. has absconded or left the local limits of the jurisdiction of the Court, or ii. is about to abscond or leave the local limits of the jurisdiction of the Court, or iii. has disposed of or removed from the local limits of the jurisdiction of the Court his property or any part thereof, (b) That the defendant is about to leave India under circumstances affording reasonable probability that the plaintiff will or may thereby be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit.[ Order XXXVIII Rule 1]
  5. 5. Dr. Khakare Vikas Order • The Court may issue a warrant to arrest the defendant and bring him before the Court to show cause why he should not furnish security, for his appearance. • Defendant will not be arrested if he pay amount mentioned in the warrant to the court. Such amount will be treated as a deposit till disposal of suit.
  6. 6. Dr. Khakare Vikas Security • Where the defendant fails to show such cause the Court shall order him: i. To deposit in Court money or other property sufficient answer the claim against him, or ii. To furnish security for his appearance at any time when called upon while the suit is pending and until satisfaction of any decree that may be passed against him in the suit, or iii. Make such order as it thinks fit in regard to the sum which may have paid by the defendant.
  7. 7. Dr. Khakare Vikas Arrest • Where the defendant fails to comply with any order, the Court may commit him to the civil prison until the decision of the suit. • A person cannot be detained for a longer period than six months. Where or value of subject matter is not more than fifty rupees, person cannot be detained more than six weeks.[ Order XXXVIII Rule 4]
  8. 8. Dr. Khakare Vikas ATTACHMENT BEFORE JUDGMENT [Order XXXVIII] • Object of this provision is to prevent any attempt on the part of the defendant in a suit to defeat the realization of decree that may eventually be passed against him.
  9. 9. Dr. Khakare Vikas Grounds • Court may direct the defendant, within a time to be fixed by it, either i. To furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the Court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, OR ii. To appear and show cause why he should not furnish security.
  10. 10. Dr. Khakare Vikas Attachment • Where the defendant fails to show cause why he should not furnish security, or fails to furnish the security required, within the time fixed by the Court, the Court may order that the property specified, or such portion thereof as appears sufficient to satisfy any decree which may be passed in the suit, be attached.
  11. 11. Dr. Khakare Vikas Removal of attachment • Court shall order the attachment to be withdrawn when : • i.The defendant furnishes the security required, together with security for the cost of the attachment, or • ii.When the suit is dismissed.
  12. 12. Dr. Khakare Vikas TEMPORARY INJUNCTION [Order XXXIX] • Injunction is an order of the Court directing the party to suit to do or refrain from doing something or certain act. • Temporary injunction is order of Court directing party to suit to do or refrain from doing certain act for the time being. • Injunction is of two kinds, mandatory and prohibitory. • Object of temporary injunction is to prevent, avoid, and reduce damage or threat to subject matter of the suit.
  13. 13. Dr. Khakare Vikas Grounds a. That any property in dispute in a suit is in danger of being: i. wasted, ii. damaged or iii. alienated by any party to the suit, or iv. wrongfully sold in a execution of a decree, or b. That the defendant threatens, or intends, to remove or dispose of his property with a view to defrauding his creditors, c. That the defendant threatens to dispossess, the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit.[ Order XXXIX Rule 1]
  14. 14. Dr. Khakare Vikas Principles for injunction • The Court has to use this discretion judiciously and on the well settles principles which includes... • 1.Prima facie case, • 2.Balance of convenience, • 3.Irreparable injury and, • 4.Other factors.
  15. 15. Dr. Khakare Vikas 1. Prima facie case • The applicant must have prima facie case in his favour. It means, the plaintiff has probability to get relief.
  16. 16. Dr. Khakare Vikas 2.Balance of convenience • The applicant must show that balance of convenience lies in his favour. • Balance of convenience is a comparison made by the Court regarding inconvenience or hardship which may result if injunction is granted or not granted.
  17. 17. Dr. Khakare Vikas 3.Irreparable injury • Applicant must show to the Court that in case of non granting temporary injunction there will be irreparable injury to him. • Irreparable injury means which cannot be adequately remedied by damages and granting temporary injunction will prevent it.
  18. 18. Dr. Khakare Vikas 4. Other factors • Such factors could be circumstances of the case, act done by the parties, socio-economic conditions, delay, latches, equity, suppression of facts, availability of adequate damages or alternative remedy, possibility of multiple litigation, etc.
  19. 19. Dr. Khakare Vikas INTERLOCUTORY ORDERS [Order XXXIX] • Interlocutory orders are interim or temporary in nature. • It is applicable till the pendency of suit or litigation. • It is applicable for the time being and does not decide rights of the parties substantially.
  20. 20. Dr. Khakare Vikas Detention, preservation, inspection, etc., of subject-matter of suit • Court may... a. Make an order for the detention, preservation or inspection of any property which is the subject-matter of such suit or, as to which any question may arise therein; b. For all or any of the purposes aforesaid authorize any person to enter upon or into any land or building in the possession of any other party to such suit; and c. For all or any of the purposes aforesaid authorize any samples to be taken, or any observation to be made or experiment to be tried, which may seem necessary or expedient for the purpose of obtaining full information or evidence.[ Order XXXIX Rule 7]
  21. 21. Dr. Khakare Vikas 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, • the Court may order the same to be deposited in Court or delivered to such last-named party.[ Order XXXIX Rule 10]
  22. 22. Dr. Khakare Vikas APPOINTMENT OF RECEIVER [Order XL] • Receiver is a person appointed by the Court to take care of property and business. • A receiver is considered as officer of the Court. • He is the representative of the Court.
  23. 23. Dr. Khakare Vikas Appointment • A receiver is appointed at the discretion of the Court. • Where it appears to the Court to be just and convenient, the Court may by order: • a.Appointment a receiver of any property, whether before or after decree; • b.Remove any person from the possession or custody of the property; • c.Commit the same to the possession, custody or management of the receiver.
  24. 24. Dr. Khakare Vikas Powers of receiver • Court confer upon the receiver all such powers, as to bringing and defending suits and for the realization, management, protection, preservation and improvement of the property, the collection of the rents and profits thereof, the application and disposal of such rents and profits, and the execution of documents as the owner himself has, or such those powers as the Court thinks fit.
  25. 25. Dr. Khakare Vikas Duties of receiver a. Furnish such security (if any) as the Court thinks fit, duly to account for what he shall receive in respect of the property; b. Submit his accounts at such periods and in such form as the Court directs; c. Pay the amount due from him as the Court directs; and d. Be responsible for any loss occasioned to the property by his wilful default or gross negligence.[ Order XL Rule 3]
  26. 26. Dr. Khakare Vikas Compensation for obtaining arrest, attachment or injunction on insufficient grounds • It appears to the Court • a. that such arrest, attachment or injunction was applied for on insufficient grounds, or • b. the suit of the plaintiff fails and it appears to the Court that there was no reasonable or probable grounds for instituting the same, • the defendant may apply to the Court, and the Court may, upon such application, award against the plaintiff by its order such amount, not exceeding fifty thousand rupees, as it deems a reasonable compensation to the defendant for the expense or injury (including injury to reputation) caused to him;[ Section 95]
  27. 27. Dr. Khakare Vikas THANK YOU.