Interim orders: commissions, arrest and attachment before judgment, temporary injunctions and receivers

1. Commissions (sections 75 to 78 and Order XXVI)

A commission is an instruction to a person (the commissioner) to do something the court itself cannot conveniently do: record evidence, inspect a site, examine accounts, make a partition. Section 75 allows a court to issue a commission (a) to examine any person, (b) to make a local investigation, (c) to examine or adjust accounts, (d) to make a partition, (e) to hold a scientific, technical or expert investigation, (f) to sell property that is subject to speedy and natural decay and is in the custody of the court, and (g) to perform a ministerial act.

• To examine witnesses (rules 1 to 8). A court may issue a commission to examine a person who is exempt from attending court, or is unable to attend from sickness or infirmity (rule 1); a person residing beyond the court's jurisdiction, about to leave India, or a Government servant who cannot attend without detriment to the public service (rule 4); any person residing within the jurisdiction, in the interest of justice or for speedy disposal (rule 4A, added in 2002); and a person outside India (rule 5). Depositions so taken may be read in evidence, subject to the conditions in rule 8.
• Local investigation (rules 9 and 10). Where a local investigation is necessary to elucidate a matter in dispute, or to find the market value of property or the amount of mesne profits or damages. The commissioner's report and the evidence he takes are evidence in the suit, and he may be examined in court about them.
• Scientific investigation, ministerial acts and sale (rules 10A to 10C).
• Accounts (rules 11 and 12) and partition (rules 13 and 14), the latter to divide property in accordance with a preliminary decree.
• Powers (rule 16). The commissioner may examine the parties and witnesses, call for documents, and enter any land or building at any reasonable time. Parties must appear before him (rule 18).

Courts commonly appoint a local commissioner to measure and demarcate land in boundary disputes. In Haryana Waqf Board v. Shanti Sarup (2008) 8 SCC 671 the Supreme Court held that where an application for demarcation by a local commissioner was necessary to decide the dispute, the courts below should have allowed it. A commission is not issued to collect evidence that a party must produce himself.

2. Arrest before judgment (Order XXXVIII rules 1 to 4)

At any stage of a suit (other than suits for immovable property under section 16(a) to (d)), if the court is satisfied, by affidavit or otherwise, that the defendant, with intent to delay the plaintiff, avoid process or obstruct execution of any decree, (i) has absconded or left the jurisdiction, (ii) is about to do so, or (iii) has disposed of or removed his property from the jurisdiction; or that he is about to leave India in circumstances making it probable that execution will be obstructed, the court may issue a warrant for his arrest to show cause why he should not furnish security for his appearance (rule 1). He is not arrested if he pays the amount in the warrant. If he fails to show cause, he must furnish security or be committed to civil prison till the suit is decided, for not more than six months (rules 2 and 4).

3. Attachment before judgment (rules 5 to 13)

Grounds (rule 5). Where the court is satisfied that the defendant, with intent to obstruct or delay execution of any decree that may be passed, is about to dispose of the whole or part of his property, or to remove it from the jurisdiction, it may direct him to furnish security to produce the property or its value when required, or to show cause why he should not. The plaintiff must specify the property and its value. The court may order conditional attachment at once. An attachment made without complying with rule 5(1) is void (rule 5(4)).

• Order (rule 6). If cause is not shown or security not furnished, the property is attached.
• Withdrawal (rule 9) when security is furnished or the suit is dismissed.
• Third parties (rule 10). Attachment before judgment does not affect the rights of strangers existing before the attachment, nor bar a decree-holder from applying for sale of the property.
• No re-attachment (rule 11). If a decree is passed, property attached before judgment is deemed attached in execution.
• Agricultural produce (rule 12) cannot be attached before judgment.

In Raman Tech. & Process Engg. Co. v. Solanki Traders, 2007 INSC 1171, (2008) 2 SCC 302, the Court called attachment before judgment a drastic and extraordinary power. It requires a prima facie case and specific material showing the defendant's intent to defeat the decree by removing or disposing of property. It is not to be used to convert an unsecured debt into a secured one, or as a lever to force a settlement.

4. Temporary injunctions and interlocutory orders (Order XXXIX)

The Specific Relief Act side of injunctions, and the three tests, are covered in the Contract I note on injunctions. The procedural points under the Code are:

• Grounds (rule 1). Where property in dispute is in danger of being wasted, damaged, alienated by a party or wrongfully sold in execution; where the defendant threatens to remove or dispose of his property to defraud creditors; or where he threatens to dispossess the plaintiff or otherwise injure him in relation to the property in dispute.
• Breach of contract or other injury (rule 2). In a suit to restrain a breach of contract or other injury, the plaintiff may seek an injunction against repetition or continuance.
• Notice (rules 3 and 3A). Notice to the other side is the rule; an ex parte injunction may be granted where delay would defeat its object, but the court must record reasons, and the applicant must at once send the other side the application, affidavit, plaint and documents. The court must try to dispose of the application within thirty days.
• Discharge or variation (rule 4). On the application of the party aggrieved.
• Disobedience (rule 2A). Attachment of the property of the person in breach and detention in civil prison for up to three months; attachment lasts up to one year, after which the property may be sold and compensation paid.
• Interlocutory orders (rules 6 to 10). Sale of perishable movables (rule 6); detention, preservation or inspection of the subject-matter (rule 7); deposit of money in court (rule 10).

The three tests (prima facie case, balance of convenience, irreparable injury) come from Dalpat Kumar v. Prahlad Singh, 1991 INSC 341, (1992) 1 SCC 719, and the conduct of the applicant is also relevant (Gujarat Bottling Co. v. Coca Cola Co., 1995 INSC 441, (1995) 5 SCC 545). On ex parte injunctions, Morgan Stanley Mutual Fund v. Kartick Das, 1994 INSC 220, (1994) 4 SCC 225, lists the factors: irreparable harm, refusal causing greater injustice than grant, the time when the applicant first learnt of the act, and acquiescence. An appellate court does not substitute its own discretion unless the trial court's discretion was exercised arbitrarily or perversely (Wander Ltd. v. Antox India, 1990 Supp SCC 727). An order under rules 1, 2, 2A, 4 or 10 is appealable under Order XLIII rule 1(r).

5. Receivers (Order XL)

Where it appears to the court to be just and convenient, it may appoint a receiver of any property, before or after decree; remove any person from possession or custody of it; commit it to the receiver; and give him powers of management, collection of rents and profits, and execution of documents (rule 1). It cannot remove a person whom no party has a present right to remove. The receiver is paid such remuneration as the court fixes (rule 2), must furnish security, submit accounts, pay amounts due, and is liable for loss caused by his wilful default or gross negligence (rules 3 and 4). The Collector may be appointed receiver of revenue-paying land (rule 5).

Because a receiver dispossesses a party before trial, courts treat the power as one of the harshest. The principles usually cited are those of the Madras High Court in T. Krishnaswamy Chetty v. C. Thangavelu Chetty (1955): the appointment is discretionary; the plaintiff must show a good prima facie case and some emergency or danger of loss; the court should not disturb a party in possession under a de facto title unless there is waste or misconduct; and the conduct of the applicant must be free from blame.

6. Compensation for wrongful interim orders (section 95)

Where an arrest, attachment or temporary injunction under section 94 was applied for on insufficient grounds, or the suit fails and there were no reasonable or probable grounds for filing it, the court may, on the defendant's application, award compensation of up to ₹50,000 (within its pecuniary limits) for expense or injury, including injury to reputation. An order on such an application bars a separate suit for compensation (section 95(2)), and is appealable under section 104(1)(g).

How this is examined

“What is a commission? What are the circumstances in which a commission may be appointed?” (February 2025) and “When can a commissioner be appointed? What are his powers?” (August 2024) are answered from section 1, listing section 75 and Order XXVI rules 1, 4, 4A, 9 to 13 and 16. “Commission” is a frequent short note (June 2025). “Explain the provisions with regard to attachment of property before judgment” (August 2024) is answered from section 3 with Raman Tech. “Define temporary injunction. Explain the grounds and principles to grant a temporary injunction” (June 2025) combines section 4 with the injunctions note.