Volumes are written on temporary injunction. This is a provision purely discretionary and equitable. - A decree is preliminary when further proceedings have to be taken before Sub-rules (3) and (4) omitted by Act 104 of 1976, w.e.f. Second appeal. Judge, has allowed an application for stay of the suit in question pending before him under Section 10 of CPC, thereafter, has proceeded to consider and decide certain applications interlocutory in nature filed under Order 39 Rules 1 and 2 of CPC by the respondents, petitioner feels aggrieved by the aforesaid action of learned Distt. The bone of contention in the present case was whether an order passed in an application for interim injunction made under Order 39 Rules 1 and 2 of the Code of Civil Procedure,1908 in Regular Civil Appeal filed under Order 41 of the CPC is appealable under Order 43 Rule (1) sub-rule (r) of the CPC. Privacy Policy3. The learned counsel for the petitioners/defendants submitted that the order passed by the Court below is agains...provision of law, particularly Order 39 Rule 3 CPC, according to which, reasons should be given by the trial Court if an order of injunction is granted without ordering...injunction order should be set aside. The word “may” only shows that a judicial discretion is given to the court in the matter to prevent an abuse of the remedy of transfer of decree sought to be employed either by collusion or by malice or under other consideration. It was further held that any other order, which is not included in Order 43 Rule 1 sub-rules (a) to (w) is not appealable under Section 104 of the CPC. (2) The Court which passed a decree may of its own motion send it for execution to any subordinate Court of competent jurisdiction. The court shall in all cases before … Section 41. Accordingly the court passing the decree has no jurisdiction in proceedings in execution of the decree to attach property situate outside its territorial jurisdiction. could be exercised independently of the powers under sub-section (1) of Section 39, C.P.C. However, Court also stated that the avenue under Order 43 of the CPC is not open not because of the bar of Section 104 (2) of the CPC, but such order is not listed in Rule 1 of Order 43 of the CPC. The Temporary Injunction rules by Order 39 of The Civil Procedure Code 1908. Sub-section (1) of Section 39, C.P.C. (2) It shall come into force on the first day of January, 1909. 4. (i) Application under order 6 rule 17 CPC for amendment in pleadings/Plaint (ii) Application under Order 7 Rule 11 for Rejection of plaint (iii) Application under Order 1 Rule 10 for impleading as party (iv) Application under order 39(1)(2) Cpc for grant of temporary injunction. Published by Experts, Short Notes on The Centre for the Promotion of Imports, 17 Important Measures for the Safety of Gas and Vacuum Supply Service in Hospitals, Brief Notes on “Genetic Regulation” in “Prokaryotes”, Useful Notes on Classification of Law (According to Holland), Legal Provisions of Section 36 of Code of Civil Procedure 1908, (C.P.C. sets out the conditions in which a decree may be transferred. On the other hand, the Appellants, relying on sub-rule (r) Rule 1 Order 43 of the CPC submitted that the sub-rule (r) is to be read by giving inclusive interpretation, so long as there is no specific exclusion that no order of refusal or grant of interim injunction is appealable, the provision of Order 43 of the CPC is always available. An application for transfer is not required to be in any particular form. Order 38 Rule 5 contains the provision for attachment before judgment and asking the defendant for furnishing security. However, only four Rules in Order 41 of the CPC are appealable under Order 43 of the CPC and the orders passed under other rules are not at all appealable under Order 43 of the CPC. It refers to territorial and pecuniary jurisdiction to deal with the decree and not competency to try the original suit, the test being the value of the decretal amount and not the original value of the suit. The provisions of section 39 are permissive and not mandatory. Explanation. Learned Distt. Section 9 petitions cannot be disposed of ex-parte, without giving notice to the respondent therein, especially when coercive orders are being passed. Order 35 of Code of Civil Produre 1908. Order 39 of the CPC 1908 is one of the most widely used and practiced order in the world. Publish your original essays now. Civil Procedure Code 1908 – 1st Page Civil Procedure Code 1908 – 2nd Page Civil Procedure Code 1908 – 3rd Page. send the decree for execution to the District Courts. In such circumstances, if the Court may find that the decree can be conveniently and expeditiously executed by the District Court, it may in the exercise of powers under sub-section (2) of Section 39, C.P.C. Section 38 provides that the decree may be executed by the Court which passed it or by the Court to which it is sent for execution. 36523 of 2017, decided on 06.02.2018. (a) If the person against whom the decree is passed actually and voluntarily resides or carries on business, or personally works for gain, within the local limits of the jurisdiction of such other Court, or, (b) If such person has not property within the local limits of the jurisdiction of the Court which passed the decree sufficient to satisfy such decree and has property within the local limits of the jurisdiction of such other Court, or, (c) If the decree directs the sale or delivery of immovable property situate outside the local limits of the jurisdiction of the Court which passed it, or. The expression ‘competent jurisdiction’ does not authorise the aforesaid court to transfer the decree to any court for execution irrespective of pecuniary jurisdiction. When there is an express provision, then it is to be restricted to what is mentioned expressly in the Section and nothing can be borrowed as implied. Hence, the present appeal was held to be not maintainable. Section 39. The Court discussing the scope of Section 104 read with Order 43 observed that Section 104 of the CPC restricts to those orders which are expressly provided in the body of this Code or by any law for the time being in force. (2) The court may by Order grant such injunction, on such terms, as to the duration of the injunction, keeping an account, giving security, or otherwise, as the court thinks fit. Similarly, when the land in the suit is liable to Government revenue or is tenure liable to the sale and the party in possession neglects to pay the revenue or rent, … Most of the Lawyers know about temporary injunction or permanent injunction. The said application was allowed by the First Appellate Court and subsequently the order was appealed against under Order 43 of the CPC. Result of execution proceedings to be certified. sets out the conditions in which a decree may be transferred. In fact, territorial jurisdiction is a condition precedent to a court executing a decree. Interpleader. order u/o39 rule 1 and 2 of cpc; order VI rule 17 of CPC; order XXI of Cpc; parties are bound the perform their contract for jurisdiction; Parties are bound to file their suit as per their contract/agreement. The warrants for possession and warrants for sale or attachment of properties, etc. Order 39 Rule (1) of the CPC speaks of application for interim relief made in the suit and, therefore, it cannot be stretched to appeal. In a recent judgment, the Bombay High Court ruled that while entertaining the Regular Civil Appeal, if the First Appellate Court passes interim order under Order 39 Rules 1 and 2 of the CPC, it cannot be challenged further by taking help of sub-rule (r) of Rule 1 of Order 43. Order 39 Rule 4 CPC. Before granting injunction, Court to direct notice to opposite party. It was further held that Order 43 Rule 1 is exhaustive in nature and no order other than the ones enumerated therein, are appealable under Order 43. Developed by, Challenge to Foreign Award u/s 34 is not maintainable. Temporary injunction under Order XXXIX, Rule 2 of the Civil Procedure Code can be granted on the term of the prayer for permanent injunction in the suit and not on different terms. Order 41 - Stay of proceedings and of execution . Order 39 - Interlocutory orders . It does not leave scope to a party to file an appeal under Section 104 and Order 43 of the CPC challenging any order except Rule 1 (a) to 1 (w). within section 144 and an order under rule 60, 98, 99, 101, or 103 of Order XXI] but shall not include; (a) any adjudication form which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. Principle and Limits—No execution beyond Territorial limits—relaxation by Explanation: The word ‘may’ used in section 39(1) does not imply that the court passing the decree is also inherently clothed with a jurisdiction to execute the decree relating to property outside its local jurisdiction. Order 40 Rule 1 to 5. The Court shall in all case, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party: Provided that, where it is proposed to grant an injunction without giving notice of the … Injunctions are of two types : Temporary injunction dealt under order 39 of CPC. Payment of interest. Accordingly, it was held that the exercise of the powers to transfer under sub-section (2) of Section 39, C.P.C. In the Civil Procedure Code, 1908 supplemental provisions in the aid of justice are provided. Share Your Essays.com is the home of thousands of essays published by experts like you! Order 39, Rule 3 CPC. It is pertinent to observe that order 39 rule 2A CPC M.No. In the present matter, the judgment and decree passed by the trial Court in the Suit was challenged in Regular Civil Appeal filed under Order 41 of the CPC. Placing reliance on sub-section 1 of Section 106 of the CPC it was argued that Section 104 and Order 43 of the CPC is to be read along with Section 106 of the CPC. World’s Largest Collection of Essays! Order 39 Rule (1) of the CPC speaks of application for interim relief made in the suit and, therefore, it cannot be stretched to appeal. (d) If the Court which passed the decree considers for any other reason, which it shall record in writing, that the decree should be executed by such other Court. Section 40. Civil Procedure Code 1908. Under the provisions of Order 21 of the Civil Procedure Code, 1908 (CPC)a creditor who has a claim against his debtor has to first obtain a decree against him and execute the said decree by having him arrested or his property attached in execution. Disclaimer Copyright. It is also called a temporary injunction. Validity of transfer of execution of decree suo motu: Section 38 provides that the decree may be executed by the Court which passed it or by the Court to which it is sent for execution. Rules 6 to 10 of Order 39 mention certain interlocutory orders, which include the court’s power to order the interim sale of movable property, to order the detention, preservation or inspection of any property which is the subject-matter of such suit. All rights Reserved. Follow me on Instagram: najeebkhan11 https://www.instagram.com/najeebkhan11/ CALLME4 id: Najeebkhan@CM4 Order 40 - Appointment of receivers . Order 39 Rules 1 & 2 CPC provides for grant of temporary injunction while Order 39 Rule 4 provides for vacation of a temporary injunction already granted. Our mission is to provide an online platform to help students to discuss anything and everything about Essay. TOS4. Permanent injunction guided by the Specific Relief Act. The said judgment was delivered by the Bombay High Court in the matter of Shivaji Shankar Jadhav Vs. Laxman Gajanan Godbole, Appeal From Order (St.) No. In case of Delhi, for instance, the Civil Nazarat is located at the District Courts. Order-XXXIX, Rule-2A.Consequence of disobedience or … The Explanation to section 37 is founded on this principle though it relaxes it to the extent that the court of first instance would not cease to have jurisdiction to execute the decree merely on the ground that the property situate within its local jurisdiction is after institution of the suit or passing of the decree transferred outside its jurisdiction to the jurisdiction of some other court. 1. ORDER XXXV INTERPLEADER - RULE 1, 2, 3, 4, 5, 6 OF CODE OF CIVIL PROCEDURE 1908 ... No order under section 47 to be reversed or modified unless decision of the case is prejudicially affected. It was further submitted that Section 104 read with Rule 1 Order 43 of the CPC are explicitly clear about what orders are appealable. Order 41 Rule 1 to 4. Injunction is stated in Order 39, Rule 1-5, An injunction is a judicial process whereby a party is required to do, or to refrain from doing, any particular act. Before granting injunction, Court to direct notice to opposite party. The Court held that though appeal is a continuation of the suit under Rule 2 of Order 43, the Rules under Order 41 shall apply so far as may be to appeals from orders is mentioned. Order 41 Rule 5 to 8. Transfer of decree to Court in another State. Order 14 rule 2 of Cpc; order 14 rule 2 of cpc. 1-2-1977. Thus, the list is exhaustive and not enumerative. Order 39 rule 11 of CPC - Bombay HC amendment - read with section 151 CPC; In proceeding of WP filed by petitioner, the senior counsel for Petitioner made the statement before HC that, they are ready reserve one flat of 2 BHK having area 850 sq.feet in building under construction. The consequences enumerated under Order 39 rule 2A CPC are penal in nature. An appeal was made challenging the order which was made on an application under Order 39 Rule 1 and 2 read with Section 151 of Code of Civil Procedure, 1908. Welcome to Shareyouressays.com! The firm has a pan India presence, catering to its clients across various fora in the country. 5. The creditor, however, can move for the arrest of the debtor or for the attachment of his property even before the judgement under Order 38 of the CPC. Sub-section (1) of Section 39, C.P.C. Before publishing your Essay on this site, please read the following pages: 1. Short title, commencement and extent- (1) This Act may be cited as the Code of Civil Procedure, 1908. Order 39 Rule1and 2 of CPC; order 8 rule 1 of CPC. It is a remedy in the form of an order of the court addressed to a particular person that either prohibits him from doing or continuing to do a particular act (prohibitory injunction); or orders him to carry out a certain act (mandatory injunction). The Court shall in all case, except … The Respondent contended that the interim order in appeal is not incorporated in the list of Rule 1 of the Order 43 of the CPC, hence, an Appeal was not maintainable under the said Order. Transfer of decree. (4) Nothing in this section shall be deemed to authorise the Court which passed a decree to execute such decree against any person or property outside the local limits of its jurisdiction. Order 39 Rule 6 to 10. Under the provisions of section 39(2) it is permissible for the Court which passed a decree to send it for execution of its own motion to any subordinate Court of competent jurisdiction. It may be examined however briefly here. Temporary injunctions can be granted on three grounds which are prima facie case, the balance of convincing and irreparable loss. Order 39 Rule 4 of CPC and application filed under Order 7 Rule 11(a) and (d) of CPC in O.S.No.3355/2015 within a reasonable time...learned counsel for the petitioners submits that the defendants No.10 and 11 who are subsequent purchasers filed I.A under Order 39 Rule 4 of CPC to vacate the interim...order of temporary injunction granted on 10.04.2015. Order 41 - Procedure on admission of appeal . 36/08 Page 2 of 4 would apply in cases where any interim order passed under Order 39 rule 1 & 2 CPC is violated or breached by any party bound by the said order. (1) The Court which passed a decree may, on the application of the decree-holder, send it for execution to another Court of competent jurisdiction. Savings .-(1) In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force. Undoubtedly, such orders are passed within the appellate jurisdiction which is a parent jurisdiction and, therefore, such orders are to be expressly and separately required to be mentioned in the list of Rule 1 of Order 43 of the CPC. (3) For the purposes of this section, a Court shall be deemed to be a Court of competent jurisdiction if, at the time of making the application for the transfer of decree to it, such Court would have jurisdiction to try the suit in which such decree was passed. Rule 1, 2, 3, 4, 5, 6. 4 Applications in 1 post ***** An application for interim injunction was preferred pending Appeal. 1. Before granting injunction, court to direct notice opposite party. Order 41 - Appeals from original decrees . It was argued that the provisions made under sub-rule (r) of Rule 1 Order 43 of the CPC are an express provision and it is restricted to the order passed under Order 39 Rule 1 of the CPC. The Court was of the opinion that if the legislature intended that the order of interim injunction passed in First Appeal is appealable under Section 104 and Order 43 of the CPC, then it would have been specifically mentioned in the list under Rule 1 of Order 43 of the CPC. Short title, commencement and extent (1) This Act may be cited as the Code of Civil Procedure, 1908. Section 100. © 2018 The Chambers of Law, India. Rajasthan High Court: Sabina, J. dismissed the appeal on the ground that party will suffer an irreparable loss if the application was allowed. Order 39 deals with temporary injunctions and interlocutory orders. 4. 3. are executed through the Administrative Civil Judge. This video elaborate about the Interlocutory order under Civil Procedure Code, order 39 , Rule 5-10. ), India – Application to Orders, Essay on Leadership: Introduction, Functions, Types, Features and Importance. Rohit Khandelwal, counsel for the appellant submits that that the property-in-question was owned by … Any clause in an agreement, that requires one of the contracting parties to make a deposit of amount as a precondition for invoking the arbitration, has to be seen as rendering the entire clause arbitrary, being not only excessive or disproportionate but leading to a wholly unjust situation in arbitration proceedings, Neither Section 14 nor Section 31 of the IB Code place any fetters on Banks/Financial Institutions from initiation and continuation of the proceedings against the guarantor for recovering their dues. 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