Interim Order and Interlocutory Order.

Interim or interlocutory orders are those orders passed by a court

during the pendency of a suit or proceeding which do not determine
finally, the substantive rights and liabilities of the parties in respect
of the subject-matter of the suit or proceeding.

“Interlocutory” means, not that which decides the cause, but that
which only settles some intervening matter relating to the cause; a
decree or judgment given provisionally during the course of a legal
action.

Interim orders are necessary to deal with and protect rights of the
parties in the interval between the commencement of the
proceedings and final adjudication. They enable the court to grant
such relief or to pass such order as may be necessary, just or
equitable. They also prevent any abuse of process during the
pendency of proceedings. Hence, interim or interlocutory
proceedings play a crucial role in the conduct of litigation between
parties.

(1) Payment in Court: Order 24

(2) Security for Costs: Order 25
(3) Commissions: Order 26
(4) Arrest before Judgment: Order 38
(5) Attachment before Judgment: Order 38
(6) Temporary Injunctions: Order 39
(7) Interlocutory Orders: Order 39
(8) Receiver: Order 40
 (1) Payment in Court: Order 24

As it is open to the plaintiff to abandon his suit, so also it is open to

the defendant in a suit for debt or damages to deposit in court at any
stage of the suit such sum of money as he considers a satisfaction in
full of the plaintiff’s claim. Notice of deposit shall be given by the
defendant to the plaintiff. The deposited amount shall be paid to the
plaintiff on his application unless the court otherwise directs. Such
deposit, however, must be unconditional. No interest shall be
allowed to the plaintiff on the sum deposited by the defendant. If
such amount is deposited at the stage of final arguments only to save
payment of interest, the application can be rejected.

(2) Security for Costs: Order 25

Rule 1 of Order 25 provides for the taking of security for the costs of
the suit. It states that the court may, at any stage of the suit, order
the plaintiff to give security for the payment of the costs of the
defendant. This is at the discretion of the court. This power may be
exercised by the court on an application by a defendant or suo motu
(on its own motion). In the following circumstances, however, the
court shall make such order:
(i) where the plaintiff resides outside India or where there are
two or more plaintiffs and all of them reside outside India; and
(ii) where the sole plaintiff or none of the plaintiffs has
sufficient immovable property within India other than the suit
property.

(3) Commissions: Order 26

(Sections - 75 to 78 and Order 26)
Meaning: 'Commission' is a process through which the witnesses,
who are sick or infirm and are unable to attend the Court, are
examined by issuing a commission by the Court. Sections 75 to 78
and Order XXVI of the Code deal with the various provisions relating
to the issue of Commission to examine witnesses who are unable to
attend the Court for one or the other reasons.

Power of Court to issue Commissions: As a general rule, the evidence

of a witness in an action, whether he is a party to the suit or not,
should be taken in open' Court and tested by cross-examination. The
court has a discretion to relax the rule of attendance in Court, under
some circumstances and may justify issue of a commission. Section
75 of the Code -specifies the powers of a Court to issue Commission.

Section 75: Subject to the conditions and limitations as may be

prescribed, the Court may issue a commission: -

a. to examine any person; order XXVI, Rule 1 to 8

b. to make a local investigation; order XXVI, Rule 9 to 10
c. to examine or adjust accounts; order XXVI, Rule 11 to 12
d. to make a partition; order XXVI, Rule 13 to 14
e. to hold a scientific, technical or expert investigation; order
XXVI, Rule 10-A
f. to conduct sale of property which is subject to speedy and
natural decay and which is in the custody of the Court
pending the determination of the suit; order XXVI, Rule 10-C
g. to perform any ministerial act; Rules 15 to 18- B deal with
general provisions. Order XXVI, Rule 10-B

Cases in which Court may issue Commission to examine a person

(Witness): A commission may be issued in the following cases:

a. Any Court may in any suit issue a commission for the examination
on interrogatories or otherwise of any person, if the person to be
examined as a witness resides within the local limits of jurisdiction,
and
i. Is exempted under the Code from attending the Court, or
ii. in the interest of justice, or for expeditious disposal of a case, or
for any other reason his examination on commission will be proper;
or
b. if he resides beyond the local limits of jurisdiction of the Court,2 or
c. he is about to leave the jurisdiction of the Court,3 or
d. If he is a Government servant and cannot in the opinion of the
Court, attend without detriment to the public service, or
e. he is residing out of India and the Court is satisfied that his
evidence is necessary.

Persons for whose examinations commission may be issued: Rule

4(1): Any Court may in any suit issue a commission for the
examination on interrogatories or otherwise of any person,
a. If he resides beyond the local limits of the jurisdiction of the court
or [(Order XXVI, Rule4(1)(a)]
b. if he is about to leave the jurisdiction of the Court, or [(Order XXVI,
Rule4(1)(b)]
c. if he is a Govt. servant and cannot, in the opinion of the court,
attend without detriment to the public service, or [(Order XXVI,
Rule4(1)(c)]
d. if he is residing out of India and the Court is satisfied that his
evidence is necessary. Rule 5

To whom Commission may be issued: [Rule 4 (2) and (3)]

Rule 4(2): Such commission may be issued to any Court, not being a
high Court, within the local limits of whose jurisdiction such person
resides; or to any pleaded or other person whom the Court issuing
the commission may appoint.
Rule 4(3): The Court on issuing any commission under this rule shall
direct whether the commission hall be returned to itself or to any
subordinate Court.
Order for Issue of Commission: (Rule-2)
The Court may issue such a commission –
a. either sue motu (of its own motion) or
b. on the application of any party to the suit, or
c. of the witness to be examined.
Evidence to be a part of Record: (Rule-7): The evidence taken on
commission shall, subject to the provisions of rule 8, form part of the
record.
When deposition may be read in evidence: (Rule-5): Evidence taken
under a commission shall not read as evidence in the suit without
the consent of the party against whom the same is offered, unless.
a. The person, who gave the evidence, is beyond the jurisdiction of
the Court or dead or unable for sickness or infirmity to attend to be
personally examined, or exempted from personal appearance in
Court, or is a person in the Service of the Government who cannot, in
the opinion of the Court, attend without detriment to the public
service; or b. The Court in his discretion dispenses with the proof of
any of the circumstances mentioned in clause
(a), and authorizes the evidence of any person being read as
evidence in' the suit, notwithstanding proof that the cause for taking
such evidence by commission has ceased at the time of reading the
same.
Letters of Request: (Section 77): In lieu of issuing a commission the
Court may issue a Letter of Request to examine a witness residing at
any place not within India.

(4) Arrest before Judgment: Order 38

The general rule is that a creditor having a claim against the debtor
has first to obtain a decree against him and then execute the said
decree according to the provisions of Order XXI and may adopt the
mode of his arrest or attachment of his property in such execution,
but under special circumstances, the creditor, however can move for
the arrest of the debtor or for the attachment of his property even
before the judgment in order to prevent any attempt on the part of
the defendant to defeat the execution of decree that may be passed
against him.
Principle:
When can such order be passed: An application for arrest may be
made by the plaintiff at any time after the plaint is presented, even
before the service of summons is effected-on the defendant and the
Court may pass the order of-arrest upon the satisfaction of the
following two conditions:
a. The Plaintiffs suit must be bona fide and his cause of action must
action be prima facie unimpeachable subject to his proving the
allegations in the plaint, and
b. The Court must have reason to-believe on adequate materials that
unless this extraordinary power is exercised there is a real danger
that the defendant will remove himself or his property from the
ambit of the powers to the Court.

Grounds of arrest before judgment: (Order 38, Rule 1) Where al any

stage of the suit, other than a suit of the nature referred to in Section
16, clauses(a) to (d), the Court is satisfied, either by affidavit or
otherwise –
a. 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:
a. has absconded or left the local limits of the jurisdiction of the
Court, or
b. is about to abscond or leave the local limits of the jurisdiction of
the Court, or
c. has disposed of or removed, from the local limits of the jurisdiction
of the Court his property or any part thereof, or
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.
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. Provided that the defendant shall not be arrested
if he pays to the officer entrusted with the execution of the
warrant any sum specified in the warrant as sufficient to satisfy the
plaintiffs claims; and such sum shall be held in deposit by the Court
until the suit is disposed of or until the further order of the Court.
Security : (Rule 2)
i. Where the defendant fails to show such cause the Court shall order
him either to deposit in the Court money or other property sufficient
to answer the claims against him to furnish security for his
appearance at the 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 make such order as it thinks fit in regard to the sum
which may have been paid by the defendant under the proviso to the
last preceding rule.
ii. Every surety for the appearance of a defendant shall bind himself
in default of such appearance, to
pay any sum of money, which the defendant may be ordered to pay
in the suit.
Procedure on application by surety to be discharged (Discharge of
Security) : (Rule 3)
I. A surety for the appearance of a defendant may at any time apply
to the Court in which he became such surety to be discharged from
his obligation.
ii. On such application being made, that Court shall summon the
defenciant to appear or, if it thinks fit, may issue a warrant for his
arrest in the first instance.
iii. On the appearance of the defendant in pursuance of the
sunimons of warrant or on his voluntary surrender, the Court shall
direct the surety to be discharged from his obligation and shall call
upon the defendant to find fresh security. –
Procedure where defendant fails to furnish security or find fresh
security: (Rule 3): Where the defendant fails to comply with any
order under rule 2 or rule 3, the Court may commit him to the civil
prison until the decision of the suit or where a decree is passed
against the defendant until the decree has been satisfied:
Provided that no person shall be detained in prison under this rule in
any case for a longer period than six months, nor for a longer period
than six weeks when the amount or value of the subject matter of
suit does not exceed fifty rupees:
Provided also that no person shall be detained in prison under this
rule after he has complied with such order.
Arrest on Insufficient Grounds:6 According to section 95, where, in
any suit in which an arrest or attachment has been effected it
appears, to the Court that such arrest or attachment was applied for
on insufficient ground, or
b. the suit of the plaintiff fails and it appears to- the Court that there
was no reasonable or probable on the application of the defendant
the Court may, award against the plaintiff by its order such amount,
not exceeding fifty thousand rupees, as it deems reasonable
compensation to the defendant for the expense or injury (including
injury to reputation) caused to him.
Provided that a Court shall not award under this section, an amount
exceeding the limits of its pecuniary jurisdiction.

(5) Attachment before Judgment: Order 38

(Order 38 Rules 5 - 12)
Object: In Sardar Govind Rao Vs Devi Sahai AIR 1982 S.C. 989, the
Court held that "the sole object behind the order levying attachment
before judgment is to give an assurance to the plaintiff that his
decree if made would be satisfied. It is a sort of guarantee against
decree becoming in fructuous for want of property available from
which the plaintiff can satisfy the decree."
Grounds: Rule 5(1): Where, at any stage of a suit, the Court is
satisfied, by affidavit or otherwise that the defendant, with intent to
obstruct or delay the execution of any decree that may be passed
against him -
a. is about to dispose of the whole or any part of his property, or
b. is about to remove the whole or any part of his property from the
local limits of the jurisdiction of the Court; the Court may direct the
defendant, within a time to be fixed by it, either 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 to appear and show cause why he should not
furnish security.
Rule 5(2): The plaintiff shall, unless the Court otherwise directs,
specify the property required to be attached and estimated value
thereof.
Rule 5(3): The Court may also in the order direct the conditional
attachment of the whole or any portion of the property so specified.
Rule 5(4): If an order of attachment is made without complying with
the provisions of Sub-rule 1 of Rule 5, such attachment shall be void.
Principles: The remedy of an attachment before judgment is an
extraordinary remedy and must be exercised sparingly and strictly in
accordance with the law and with the utmost care and caution," and
the Court must be satisfied about the following two conditions
before making such order of attachment. that the defendant is about
to dispose of the whole or any part of his property; and
b. that the disposal is with the intention of obstructing or delaying
the execution of any decree that may be passed against him.