{"id":26919,"date":"2004-04-21T00:00:00","date_gmt":"2004-04-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/vareed-jacob-vs-sosamma-geevarghese-ors-on-21-april-2004"},"modified":"2016-08-29T20:46:27","modified_gmt":"2016-08-29T15:16:27","slug":"vareed-jacob-vs-sosamma-geevarghese-ors-on-21-april-2004","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/vareed-jacob-vs-sosamma-geevarghese-ors-on-21-april-2004","title":{"rendered":"Vareed Jacob vs Sosamma Geevarghese & Ors on 21 April, 2004"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Vareed Jacob vs Sosamma Geevarghese & Ors on 21 April, 2004<\/div>\n
Author: S.B. Sinha<\/div>\n
Bench: S.B. Sinha.<\/div>\n
           CASE NO.:\nAppeal (civil)  2634 of 2004\n\nPETITIONER:\nVAREED JACOB\n\nRESPONDENT:\nSOSAMMA GEEVARGHESE & ORS.\n\nDATE OF JUDGMENT: 21\/04\/2004\n\nBENCH:\nS.B. Sinha.\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
(@ S.L.P. (CIVIL) NO. 18699 OF 2001)<\/p>\n
S.B. SINHA, J :\n<\/p>\n
 \tLeave granted.\n<\/p>\n
 \tThe short question involved in this appeal which arises
\nout of a judgment and order dated 27.7.2001 in C.R.P. No.
\n2003 of 1998-B passed by the High Court of Kerala at
\nErnakulam is as to whether on restoration of a suit an order
\nof injunction passed is automatically revived or not.\n<\/p>\n
 \tAn order of injunction can be passed under Order 39,
\nRules 1 and 2 of the Code of Civil Procedure.  Such an order
\ncan also be passed by the Court in exercise of its inherent
\njurisdiction in the event the prayer for grant of injunction
\ndoes not fall within the scope of Section 94 of the Code of
\nCivil Procedure read with Order 39, Rules 1 and 2 thereof.\n<\/p>\n
 \tAn order of injunction can be granted by the Court only
\nwhen there exists any power therefor.  In Morgan Stanley
\nMutual Fund Vs. Kartick Das [(1994) 4 SCC 225] this Court
\nhas held that having regard to the scheme of the Consumer
\nProtection Act, the consumer courts do not have any power to
\nissue injunction.  The jurisdiction to issue an order of
\ninjunction, appointment of a receiver or to pass an order of
\nattachment before attachment would, therefore, depend upon
\nthe scheme of the statute and the powers conferred on the
\nCourt thereby.  This may be one of the factors which is
\nrequired to be taken into consideration for making a
\ndistinction between a supplemental proceedings and
\nincidental proceedings.\n<\/p>\n
 \tA court or a tribunal entitled to adjudicate upon an
\nissue arising in a lis between the parties has the requisite
\njurisdiction to pass orders which are incidental thereto  so
\nas to enable it to effectively adjudicate the same.  Such a
\npower of a Court or a Tribunal to do all things necessary to
\neffectively adjudicate upon the lis need not, in other
\nwords, be specifically conferred by the statute; such power
\nbeing ancillary to the power of the court.  It is adjunct to
\nthe court’s\/tribunal’s power of adjudication.\n<\/p>\n
\tThe Code of Civil Procedure uses different expressions
\nin relation to incidental proceedings and supplemental
\nproceedings.  Incidental proceedings are referred to in Part
\nIII of the Code of Civil Procedure whereas Supplemental
\nProceedings are referred to in Part VI thereof.\n<\/p>\n
 \tIs there any difference between the two types of
\nproceedings?\n<\/p>\n
 \tA distinction is to be borne in mind keeping in view
\nthe fact that the incidental proceedings are in aid to the
\nfinal proceedings.  In other words an order passed in the
\nincidental proceedings will have a direct bearing on the
\nresult of the suit.  Such proceedings which are in aid of
\nthe final proceedings cannot, thus,  be held to be at par
\nwith supplemental proceedings which may not have anything to
\ndo with the ultimate result of the suit.\n<\/p>\n
 \tSuch a supplemental proceeding is initiated with a view
\nto prevent the ends of justice from being defeated. The
\nsupplemental proceedings may not be taken recourse to as a
\nroutine matter but only when an exigency arises therefor.
\nThe orders passed in the supplemental proceedings may some
\ntime cause  hardships to the other side and, thus, are
\nrequired to be taken recourse to when a situation arises
\ntherefor and not otherwise.  There are well-defined
\nparameters laid down by the Court from time to time as
\nregards the applicability of the supplemental proceedings.\n<\/p>\n
 \tIncidental proceedings are, however, taken recourse to
\nin aid of the ultimate decision of the suit which would mean
\nthat any order passed in terms thereof, subject to the rules
\nprescribed therefor, would have a bearing on the merit of
\nthe matter.  Any order passed in aid of the suit are
\nancillary powers.  Whenever an order is passed by the Court
\nin exercise of its ancillary power or in the incidental
\nproceedings, the same may revive on revival of the suit.
\nBut so far as supplemental proceedings are concerned, the
\nCourt may have to pass a fresh order.\n<\/p>\n
 \tAn order to furnish security to produce any property
\nbelonging to a defendant and to place the same at the
\ndisposal of the Court or order the attachment of any
\nproperty as also grant of a temporary injunction or
\nappointment of a receiver are supplemental in nature.  The
\neffect of such order may be  felt even after decree is
\npassed.  An order of attachment passed under Order 38 of the
\nCode of Civil Procedure would be operative even after the
\ndecree is passed.  Such an order of attachment passed under
\nOrder 38 can be taken benefit of by the decree holder even
\nafter a decree is passed.  An order of temporary injunction
\npassed in a suit either may merge with a decree of permanent
\ninjunction or may have an effect even if a decree is passed,
\nas, for example, for the purpose of determination as regard
\nthe status of the parties violating the order of injunction
\nor the right of a transferee whom have purchased the
\nproperty in disobedience of the order of injunction.  The
\norders passed in supplemental proceedings may have to be
\ntreated distinctly as opposed to an order which is ancillary
\nin nature or which has been passed in the incidental
\nproceedings.\n<\/p>\n
 \tThe question must, therefore, be considered having
\nregard to the aforementioned legal principles in mind.  We
\nmay at this juncture notice those decisions wherein it has
\nbeen held that the interlocutory order is automatically
\nrevived on restoration of suits.\n<\/p>\n
 \tIn Bankim Chandra and Others Vs. Chandi Prasad [AIR
\n1956 Patna 271] the Court was concerned with the revival of
\nan order of stay.  It was held, having regard to the scheme
\nof law laid down in the Code of Civil Procedure that
\ninterlocutory orders like one of ‘stay’ are nothing but
\nancillary orders and they are all meant to aid and
\nsupplement the ultimate decision arrived at in the main suit
\nor appeal.  Even in such a situation when there is any other
\nfactor on the record or in the order passed to show to the
\ncontrary even an order of stay shall not automatically
\nrevive.  This decision, therefore, is an authority for the
\nproposition that the Code of Civil Procedure lays down two
\ndifferent schemes, one in relation to the ancillary orders
\nwhich would aid and supplement the decisions arrived at in
\nthe main appeal and the one which may not have to do
\nanything therewith.\n<\/p>\n
 \tIn Tavvala Veeraswamy Vs. Pulim Ramanna and Others [AIR
\n1935 Madras 365] a Full Bench of the Madras High Court held
\nthat even an order of attachment before judgment would
\nautomatically revive on restoration of a suit.  In that
\ncase, Beesley, CJ speaking for the Full Bench, however,
\nerroneously proceeded on the basis that an order of
\nattachment is also an ancillary order and in that view of
\nthe matter held:\n<\/p>\n
“…It does not seem to me reasonable
\nthat the plaintiff in a suit who has got
\nan attachment before judgment should
\nhave again, after the restoration of the
\nsuit after its dismissal for default, to
\napply to the Court for a fresh
\nattachment and that having done so the
\ndefendant should have to apply to raise
\nthe attachment by producing a surety or
\nsureties.  The common sense view of the
\nmatter is that all ancillary orders
\nshould be restored on the suit’s
\nrestoration without any further
\norders.”\n<\/p>\n
 \tThe question as to whether an order of attachment is a
\nsupplemental order or not was not at all considered therein.\n<\/p>\n
 \tIn Shivaraya and Others Vs. Sharnappa and Others [AIR
\n1968 Mysore 283], a learned Single Judge followed Bankim
\nChandra and Others (supra) and Tavvala Veeraswamy (supra)
\nwhich considered such interlocutory orders to have been
\npassed in exercise of the Court’s ancillary powers.\n<\/p>\n
 \tIn Ganesh Prasad Sah Kesari and Another Vs. Lakshmi
\nNarayan Gupta [(1985) 3 SCC 53], this Court was concerned
\nwith a case as regard the power of the court to extend the
\ntime for depositing rent by the defendant.  Interpreting
\nSection 11A of Bihar Buildings (lease, Rent and Eviction)
\nControl Act, 1947, it was held that the Court had such
\npower; differing with the view of the High Court as regard
\ninterpretation of such a provision as directory in stead and
\nin place of being mandatory.\n<\/p>\n
 \tHowever, an observation had been made that the Learned
\nTrial Judge did grant relief to the tenant by refusing to
\nstrike off the defence on an erroneous view that the
\ndirection did not revive after setting aside of the ex parte
\norder.  The said observation is obiter in nature and in any
\nevent, no detailed discussions as regard the nature of the
\npower of the Court under Section 148 of the Code of Civil
\nProcedure had been made.  The jurisdiction of the court
\nunder Section 148 of the Code of Civil Procedure is an
\nancillary power and not a supplementary one.\n<\/p>\n
 \tIn Smt. Radhey Bai Vs. Smt. Savitri Sharma [1975 RLR
\n234], Delhi High Court was concerned with an ancillary power
\nof a court as would appear from the following observations:\n<\/p>\n
“7…It is, therefore, obvious that on
\nsetting the dismissal aside, the court
\nhas to appoint a day for proceeding with
\nthe suit and not for trying the suit de
\nnovo.  This indicates that the further
\nproceedings in the suit have to start
\nfrom the stage and point where they were
\npending before the suit was dismissed
\nand there is no requirement of law that
\nupon such restoration the entire
\nproceedings must be reached again.\n<\/p>\n
Consequently on the restoration of a
\ndismissed suit, all the previous
\nproceedings and the interim orders
\nrevive and do not require a fresh order
\nto give them vigour.”\n<\/p>\n
 \tIn Kishan Lal Vs. Smt. Kamla Devi Sharma [1979 RLW
\n369], the Court while again dealing with a rent control
\nmatter held that when an order has been passed under Sub-
\nSection (3) of Section 13 of the Act as existed at the
\nrelevant time, no fresh order is required to be passed.\n<\/p>\n
 \tIn Ulahannan Chacko Vs. Mathai [1986 KLT 301] the Court
\nwas concerned with an application for amendment of plaint in
\nrelation whereto a contention was raised that the said
\napplication could not have been brought into life as the
\nappeal was dismissed holding:\n<\/p>\n
“…When restoration of the suit or
\nappeal is allowed, the parties are to be
\nrestored to the same position in which
\nthey were situated when the court
\ndismissed the suit or appeal. Then on
\nrestoring the appeal dismissed for
\ndefault, the ancillary matters disposed
\nof in consequence of such dismissal must
\nalso get restored and the consequential
\norders passed on dismissal of the suit
\nor appeal should automatically get
\nvacated.”\n<\/p>\n
 \tIn Abdul Hamid Vs. Karim Bux and Others [AIR 1973 All
\n67], a Full Bench of the Allahabad High Court noticing a
\nlarge number of decisions including some of which have been
\nreferred to hereinbefore held:\n<\/p>\n
“17. The language of Order 38, R.9 no
\ndoubt is capable of both the
\ninterpretations but the well-recognised
\nrule of interpretation is that where the
\nlanguage is capable of two
\ninterpretations and where the section of
\nthe Act has received a judicial
\nconstruction and the said construction
\nhas long been acted on without any
\nalteration in the statute, the
\ninterpretation so recognised and acted
\non is to be accepted on the principle of
\nstare decisis because it is the general
\nmaxim that even a point of law has been
\nsettled by decision it forms a precedent
\nwhich is not afterwards to be departed
\nfrom.  The latter part of the rule which
\nrequires that the attachment shall be
\nremoved when the suit is dismissed is
\neither directory or mandatory.  If it is
\ndirectory the attachment is removed
\nautomatically in spite of no order of
\nthe Court.  If it is mandatory, then the
\nduty of the Court is to pass an order
\nand a party cannot be penalised where
\nthe consequences for the dismissal
\nappear to be the witdrawal of the
\nattachment before judgment.  The Lower
\nappellate Court in these circumstances
\nwas right in upholding respondent No.
\n1’s claim based on the transfer in his
\nfavour and rejecting the plaintiff-
\nappellant’s contentions.”\n<\/p>\n
 \tThe question before us, however, had received the
\nattention of the Court as would appear from a long line of
\ndecisions.\n<\/p>\n
 \tIn Chunni Kuar Vs. Dwarka Prasad [1887 All WN 297], it
\nwas held:\n<\/p>\n
“That temporary injunction came to an
\nend on the passing of the decree, and
\nnothing has happened to revive or keep
\nalive the order for the temporary
\ninjunction.  Dwarka Prasad was not left
\nwithout his remedy.  He might have
\napplied to this Court for an injunction
\npending the determination of his appeal.
\nNo such application has been made to
\nthis Court, and therefore, I am of
\nopinion that Musammat Chunni Kuar was
\nand is entitled to have the money paid
\nout of Cour to her and to have this
\nappeal allowed with Costs.  The view I
\ntake is fortified by the judgment in
\nSheikh Moheeooddeen Vs. Sheikh Ahmed
\nHossein (14 W.R. 384)”\n<\/p>\n
  As far back in 1887, the Allhabad High Court while
\nconsidering the provisions of Sections 311 of the Old Code
\nof Civil Procedure which is in pari materia with Order 38
\nRule 5 of the Code of Civil Procedure, 1908 and referring to
\nChunni Kuar Vs. Dwarka Prasad [1887 All WN 297] noticed a
\ncontention which is in the following terms:\n<\/p>\n
“On the other hand, Mr. Colvin relies
\nupon the last part of s.488 to show that
\nan attachment before judgment comes to
\nan end “when the suit is dismissed;”\n<\/p>\n
and the learned counsel also lays stress
\nupon the provisions of s. 490, and
\nargues that the words of that section
\ncontemplate that it is only when a
\ndecree is given in favour of the
\nplaintiff that re-attachment in
\nexecution of such decree is dispensed
\nwith, implying that such attachment is
\nnecessary where the suit ended in
\ndismissal of the plaintiff’s claim.  For
\nthis contention the learned counsel also
\nrelies upon the ruling of the learned
\nChief Justice in Chunni Kuar Vs. Dwarka
\nPrasad where it was held that a
\ntemporary injunction under s. 492,
\nnotwithstanding the use of the phrase
\n“till further orders,” comes to an end
\non the termination of the suit in which
\nsuch injunction was passed, although no
\nexpress order had been made by the Court
\nwithdrawing or setting aside such
\ninjunction.”\n<\/p>\n
 \tMahmood, J. agreeing with the said contention observed:\n<\/p>\n
“I am of opinion that this contention
\nis sound, and that the case last cited,
\nthough relating to temporary injunction,
\nproceeds upon a principle analogous to
\nattachments before judgment, both being
\nad interim proceedings which naturally
\ncease to have any force as soon as the
\nsuit itself, in respect of which they
\nwere taken, comes to a close.  In other
\nwords, an attachment before judgment
\nunder s.488, like a temporary injunction
\nunder s.492, becomes functus officio as
\nsoon as the suit terminates.”\n<\/p>\n
 \tThis decision, therefore, is an authority for two
\npropositions, namely, (i) an order of attachment before
\njudgment does not entail an automatic revival upon
\nrestoration of a suit which is dismissed for default; and\n<\/p>\n
(ii) for that purpose an order of injunction would be
\ntreated at par with an order of attachment before judgment.\n<\/p>\n
 \tIn Gangappa Vs. Boregowda [AIR 1955 Mysore 91], a Full
\nBench of the Madras High Court by referring such proceeding
\nas a supplemental proceeding required for grant of
\nextraordinary relief as contra-distinguished from an
\nancillary order which is granted in the aid of a proceeding,
\nheld:\n<\/p>\n
“10. An attachment before judgment is
\nin the nature of an interlocutory order.
\nIt is an extra ordinary relief granted
\nto a plaintiff even before his claim is
\nadjudicated upon and found to be true
\nand if a suit is dismissed either for
\ndefault or on its merits by the trial
\nCourt and the attachment before judgment
\nhas therefore to cease, he can certainly
\nhave not as much grievance as a person
\nwho has obtained a decree and attached
\nproperty of the judgment-debtor whose
\nattach property has been questioned and
\ndecided in summary proceedings and which
\nare made expressly subject to a decision
\nin a regular suit.  Moreover, it cannot
\nalso be urged that all interlocutory
\norders like say those passed on
\napplications for temporary injunction
\nthe operation of which would have to
\ncease on the dismissal of a suit, would
\nautomatically be revived or can be
\ndeemed to be in force without any
\nfurther orders by an appellate court or
\nby the same Court after the suit is
\ndismissed.  To hold so would lead to
\nobvious and real difficulties.  It is
\nnot also as though the plaintiff in such
\na case has no remedy.  He could always
\napply to the same Court if a suit which
\nhas been dismissed for default is
\nrestored to file or to an appellate
\ncourt which has also ample powers to
\ngrant an order of attachment before
\njudgment under the provisions of S.\n<\/p>\n
107(2), Civil P.C.  In any event the
\npossibility of hardship cannot warrant
\nthe ignoring of the express provisions
\nof O.38, R.9 by which it is specifically
\nlaid down that an attachment before
\njudgment shall cease by the dismissal of
\na suit.”\n<\/p>\n
 \tIt will, therefore, be seen that the Court has in that
\ncase also equated the order of injunction with an order of
\nattachment.\n<\/p>\n
 \tYet again in Nagar Mahapalika, Lucknow Vs. Ved Prakash
\n[AIR 1976 All 264] it was held:\n<\/p>\n
“4. As long ago as 1887 a question of
\nsimilar nature arose for consideration
\nbefore this Court in Chunni Kuar Vs.
\nDwarka Prasad (1887 All WN 297).  It was
\nobserved therein that an attachment
\nbefore judgment like a temporary
\ninjunction becomes functus officio as
\nsoon as the suit terminates.  Again, a
\nquestion pertaining to attachment before
\njudgment came up for consideration
\nbefore this Court in Ram Chand Vs. Pitam
\nMal (1888) ILR 10 All 506.  Relying on
\nChunni Kuar’s case (supra) that
\nprinciple was reiterated with approval.
\nThe other High Courts also considered
\nthis question in a number of cases.\n<\/p>\n
Finally, the question was raised in
\nAbdul Hamid Vs. Karim Bux before this
\nCourt as to whether on the dismissal of
\na suit in default in atttachment before
\njudgment automatically lapsed and a
\nfresh attachment was necessary on the
\nrestoration of the suit, or whether on
\nthe restoration of the suit the
\nattachment previously made is revived or
\nis survived.  This question was referred
\nto a Full Bench of the Court.  The
\nmajority view was that on the dismissal
\nof suit in default the attachment before
\njudgment automatically ceases and a
\nfresh attachment is necessary on the
\nrestoration of the suit.”\n<\/p>\n
 \tIn Kanchan Bai Vs. Ketsidas and others [AIR 1991 Raj.
\n94], it was held:\n<\/p>\n
“6. The only question for consideration
\nin this application is whether on the
\nsetting aside of the order of rejection
\nof the plaint and its remand by the
\nappellate court, the temporary
\ninjunction issued by the trial Court
\nstood revived? It is well settled law
\nthat interlocutory orders which are
\nmeant to aid and supplement the ultimate
\ndecision arrived at in the main suit or
\nappeal would be ancillary order and such
\norder would stand revived automatically
\non the restoration of the suit.  Orders
\ngranting temporary injunction do not aid
\nand supplement the ultimate decision of
\nthe suits.  As such they cannot be said
\nto be ancillary orders.”\n<\/p>\n
 \tIn Ranjit Singh Vs. Dr. Sarda Ranjan Prasad Sinha [AIR
\n1981 Patna 102] following Bankim Chandra (supra), the Patna
\nHigh Court holding that an order striking off of tenant’s
\ndefence for non deposit of rent automatically revived,  L.M.
\nSharma, J. (as learned Chief Justice of India then was),
\nhowever, noticed that by restoration of the suit, the order
\ndated 13.1.1978 whereby an order directing to deposit the
\narrears of rent did not revive, stated the law thus:\n<\/p>\n
“The order in regard to striking off
\nthe defence is vitally different from
\nthe order directing the arrears of rent
\nto be deposited.  I, therefore, hold
\nthat in the present case, the order
\ndated 6.2.1979 revived automatically on
\nthe restoration of the suit and the view
\ntaken by the court below is correct.”\n<\/p>\n
\tThe Parliament consciously used two different
\nexpressions ‘incidental proceedings’ and ‘supplemental
\nproceedings’ which obviously would carry two different
\nmeanings.\n<\/p>\n
The expression ‘ancillary’ means aiding, auxiliary;
\nsubordinate; attendant upon; that which aids or promotes a
\nproceeding regarded as the principal.\n<\/p>\n
The expression ‘supplementary proceeding’ on the other
\nhand, would mean a separate proceeding in an original
\naction, in which the court where the action is pending is
\ncalled upon to exercise its jurisdiction in the interest of
\njustice.\n<\/p>\n
The expression ‘incidental’ may mean differently in
\ndifferent contexts. While dealing with a procedural law, it
\nmay mean proceedings which are procedural in nature but when
\nit is used in relation to an agreement or the delegated
\nlegislation, it may mean something more; but the distinction
\nbetween an incidental proceeding and a supplemental
\nproceeding being obvious cannot be ignored.\n<\/p>\n
Indisputably, the effect of an order passed under
\ndifferent provisions of Section 94 of the Code of Civil
\nProcedure would be different.  They have been so legislated
\nkeeping in view different exigencies of circumstances but it
\nmust not be forgotten that the power thereunder is to be
\nexercised in the interest of justice.  The statutory scheme
\ntherefor is that supplemental proceeding should be taken
\nrecourse to only when the interest of justice is required to
\nbe sub-served, although the interlocutory order may not have
\nanything to do with the ultimate decision of the court.\n<\/p>\n
\tThe consequences of an order of attachment before
\njudgment as also, an order of injunction can be grave.  By
\nreason of such an order, a right of a party to the lis may
\nbe affected or remained under animated suspension. By reason
\nof an interlocutory order whether in terms of Order 38,
\nOrder 39 or Order 40, a person’s right to transfer a
\nproperty may remain suspended as a result whereof he may
\nsuffer grave injury.  When the suit is dismissed for
\ndefault, he may exercise his right.  If it is to be held
\nthat on restoration of the suit the order of attachment
\nbefore judgment or an order, an injunction is automatically
\nrevived, as a result whereof the status of the parties would
\nbe in the same position as on the date of passing of the
\ninitial interlocutory order, they may be proceeded with for
\nviolation of the order of injunction or an order of
\nattachment before judgment.  The right of subsequent
\npurchaser may also be affected.  By reason of taking
\nrecourse to a supplemental proceedings, the rights of the
\nparties and in some cases the right of even a third party
\ncannot be allowed to be taken away.\n<\/p>\n
In this case, this Court is not concerned with the
\nquestion as to whether substantive changes have been made in
\nOrder 38 Rule 5 by Code of Civil Procedure, 1908 vis-`-vis
\nCode of Civil Procedure, 1859.  The question is as to
\nwhether the power of the court to pass an order of
\nattachment before judgment is an ancillary power or a
\nsupplemental power.  The provisions of Order 38 and Order 39
\nhave been equated by the court presumably not on the ground
\nthat they provide for different interlocutory reliefs but
\nhaving regard to the nature of the proceedings vis-`-vis the
\nreliefs which can ultimately be granted.  It would also not
\nbe correct to hold that the attachment proceeding is in
\neffect and substance different from an order of injunction
\non the ground that the former is a part of execution
\nprocess.\n<\/p>\n
\tThe provisions of  Order 38 Rule 9 of the Code of Civil
\nProcedure, in my considered opinion, are not of much
\nimportance.  The rule confers an independent and substantive
\nstatutory right on a defendant to bring it to the notice of
\nthe court that he is  in a position to furnish security to
\nmeet the claim of the plaintiff and as such an order of
\nattachment need not continue.  The order of attachment also
\ncomes to an end in terms of the aforementioned provision
\nwhen the suit is dismissed.  The very nature of  an order of
\nattachment entails that in the event of dismissal of suit,
\nthe order comes to an end.  Such a provision has been made
\nby the legislature by way of abundant caution.  Although it
\nis of not much importance but we may notice that there
\nexists a conflict of opinion as regard consequences of an
\norder of attachment upon reversal of a judgment of dismissal
\nof suit in appeal, namely, as to whether in the event the
\nsuit is decreed by the appellate court, an order of
\nattachment would  automatically be restored or not.\n<\/p>\n
\tIt is also of some importance that there exists a view
\nthat an order of dismissal of a suit does not render an
\norder of attachment void ab initio as a sale of property
\nunder order of attachment would be invalid even after the
\ndate of such sale and the attachment is withdrawn.\n<\/p>\n
A converse case may arise when the property is sold
\nafter the suit is dismissed for default and before the same
\nis restored.  Is it possible to take a view that upon
\nrestoration of suit the sale of property under attachment
\nbefore judgment becomes invalid?  The answer to the said
\nquestion must be rendered in the negative.  By taking
\nrecourse to the interpretation of the provisions of the
\nstatute, the court cannot say that although such a sale
\nshall be valid but the order of attachment shall revive.
\nSuch a conclusion by reason of a judge-made law may be an
\nillogical one.\n<\/p>\n
 \tA construction which preserves the rights of the
\nparties pending adjudication must be allowed to operate vis-
\n`-vis the privilege conferred upon a plaintiff to obtain an
\ninterlocutory order which loses its force by dismissal of
\nsuit and, thus, may not revive, unless expressly directed,
\non restoration of the suit.\n<\/p>\n
A suit or a proceeding which is barred by limitation
\nwould oust the jurisdiction of the court to entertain the
\nsame.  When a proceeding is barred by limitation, it
\nculminates in a right to the non-suitor.  Such a right can
\nbe curtailed only by express terms of a statute.  A statute
\nmay furthermore provide for extension of a period of
\nlimitation in certain situation.  The Code of Civil
\nProcedure is silent as to the effect of revival of the
\ninterlocutory order on restoration of a suit.  This case
\ndemonstrates as to how a person for no fault on his part
\nwould suffer prejudice when such a right is being taken
\naway.  Such a provision which would confer jurisdiction of a
\ncourt to entertain a proceeding which it otherwise would not
\nhave in terms of the Limitation Act, 1963, in my opinion,
\nshould be strictly construed.\n<\/p>\n
 \tFrom the decisions rendered by different High Courts,
\ntherefore, the law that emerges is that there exists a
\ndistinction between ancillary orders which are required to
\nbe passed by the court in aid of or supplemental to the
\nultimate decision of the Court; as contradistinguished to an
\norder passed under Part VI of the Code of Civil Procedure in
\nterms whereof an order is passed in favour of a party to the
\nlis which may not have a bearing on the ultimate result of
\nthe suit.  An interlocutory order passed in a suit may not
\nalso have anything to do with the relief prayed for by the
\nplaintiff.  An order for injunction or appointment of
\nreceiver can be passed even at the instance of the
\ndefendant.  An order which has been obtained by the
\ndefendant may not revive on restoration of the suit.
\nSupplementary proceedings, thus, envisage that such a power
\nmust be specially conferred upon the Court which are
\nrequired to be passed in the interest of justice
\nirrespective of the fact as to whether the same would
\nultimately have any bearing with the reliefs claimed in the
\nsuit or not.  In absence of any statutory provisions such a
\npower cannot be exercised whereas a power which is ancillary
\nor incidental, can always be exercised by the Court in aid
\nof and supplemental to the final order that may be passed.
\nFurthermore, a jurisdiction expressly conferred by a statute
\nand an inherent power, subject to just exceptions, must be
\ntreated differently.\n<\/p>\n
 \tI am, therefore, of the opinion that the interim order
\nof injunction did not revive on restoration of the suit.
\nThe Courts, however, would be well-advised keeping in view
\nthe controversy to specifically pass an order when the suit
\nis dismissed for default stating when interlocutory orders
\nare vacated and on restoration of the suit, if the court
\nintends to revive such interlocutory orders, an express
\norder to that effect should be passed.\n<\/p>\n
\tI respectfully dissent with the opinion of Hon’ble
\ntheChief Justice of India.\n<\/p>\n
 \tI will, therefore, set aside the impugned order and
\nallow the appeal.  No costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Vareed Jacob vs Sosamma Geevarghese & Ors on 21 April, 2004 Author: S.B. Sinha Bench: S.B. Sinha. CASE NO.: Appeal (civil) 2634 of 2004 PETITIONER: VAREED JACOB RESPONDENT: SOSAMMA GEEVARGHESE & ORS. DATE OF JUDGMENT: 21\/04\/2004 BENCH: S.B. Sinha. JUDGMENT: J U D G M E N T (@ S.L.P. (CIVIL) […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-26919","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nVareed Jacob vs Sosamma Geevarghese & Ors on 21 April, 2004 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/vareed-jacob-vs-sosamma-geevarghese-ors-on-21-april-2004\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Vareed Jacob vs Sosamma Geevarghese & Ors on 21 April, 2004 - 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