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Report No. 54

Chapter 39

Injunctions and Other Interlocutory Orders

Introduction

39.1. Order 39 deals with various interlocutory Orders, of which the most important are temporary inductions.

39.2. The theoretical interest of the subject of injunctions is matched by its practical importance. Injunctions were invented by the Court of Chancery as equitable remedies. One of the earliest reported English cases deals with injunctions in relation to judicial proceedings, but the utility of injunctions was soon realised, and the remedy has now embraced other fields.

39.3. The equitable nature of the remedy is emphasised by several provisions of the Specific Relief Act1 (which deals with permanent injunctions, and by rules in Order 39 (dealing with temporary injunctions). But it is odd that a subject of such importance has been dealt with in the Code in provisions which, at times, prove to be less comprehensive than they ought to be. It is for this reason that the matter was considered at some length in the earlier Report, and we also shall have a number of things to say on this Order.

1. The Specific Report Act, 1963.

39.4. The "interdict" of the Roman law bears a resemblance to the injunctions of courts of equity. It is said to have been called an interdict, because, it was originally interposed in nature of an interlocutory decree between two parties contending for possession, until the dispute as to property could be tried. But, afterwards, the appellation was extended to final decretal orders of the same nature1.

1. Story, Equity Jurisprudence (1917), p. 365.

Order 39, rule 1

39.6. We shall first deal with the scope of the power to grant temporary injunctions. Under Order 39, rule 1, where, in any suit, it is proved by affidavit or otherwise-

(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or

(b) that the defendant threatens or intends, to remove or dispose of his property with a view to defraud his creditors, the court may be order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property as the court thinks fit, until the disposal of the suit or until further orders.

39.7. The rule is primarily concerned with preservation of the property in dispute till legal rights are ascertained.

39.8. The situation where the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property dispute in the suit is not covered on a literal reading. We think that it ought to be covered.

Recommendation

39.9. Accordingly, we recommend that Order 39, rule 1, should be revised as follows-

"1. Revised Order 39, rule 1-Where, in any suit, it is proved by affidavit or otherwise-

(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in 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, or

(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, the court may be order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting damaging, alienation, sale, removal or disposition of the property, or dispossession of the plaintiff or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit, as the court thinks fit, until the disposal of the suit or until further orders".

Order 39, rule 3

39.10. Under Order 39, rule 3, the Court is required to issue notice to the opposite party before granting an injunction, "except where it appears that the object of granting the injunction would be defeated by the delay". It is under these words of exception that what are known as ex parte ad interim injunctions are granted.

Ex parte ad interim injunctions

39.10A. Complaints are often heard that the grant of temporary injunctions-particularly ex parte-causes hardship, and is an indirect cause of delay.



The Code of Civil Procedure, 1908 Back




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