Saji Koduvath, Advocate, Kottayam.
Will Interlocutory Orders (automatically) Get Revived on Restoration of Suit?
- Yes;
- unless the order of dismissal, or of restoration, shows to the contrary.
Is it Mandatory to Lift the Attachment (before judgment) on Dismissal of the Suit?
- Yes (Order 38, Rule 9 directs so);
- hence the attachment will not be (automatically) restored.
The authority is -Vareed Jacob v. Sosamma Geevarghese, (2004) 6 SCC 378.
- Majority (V. N. Khare, CJ. & S. H. Kapadia, J.) held – if the suit is dismissed for default without any reference to the ancillary orders passed earlier, then the interim orders shall revive as and when the suit is restored.
- But, S.B. Sinha, J. dissented observing – “… the court cannot say that although such a sale (after the suit is dismissed for default and before the same is restored) shall be valid but the order of attachment shall revive. Such a conclusion by reason of a judge-made law may be an illogical one.” Quoted in: T. Ravi v. B. Chinna Narasimha, 2017-7 SCC 342.
Interlocutory Orders Get Revived on Restoration of Suit
In Vareed Jacob v. Sosamma Geevarghese, (2004) 6 SCC 378, the majority considered the following decisions:
(i) Saranatha Ayyangar v. Muthiah Moopanar, AIR 1934 Mad 49. It was held that on restoration of the suit dismissed for default all interlocutory matters shall stand restored, unless the order of restoration says to the contrary. That as the matter of general rule on restoration of the suit dismissed for default, all interlocutory orders shall stand revived unless during the interregnum between the dismissal of the suit and restoration, there is any alienation in favour of the third party.
(ii) Bankim Chandra v. Chandi Prasad reported in AIR 1956 Pat 271. This case arose under Order 39. It was held that the orders of stay pending disposal of the suit were ancillary orders and they are all meant to supplement the ultimate decision arrived at in the main suit and, therefore, when the suit, dismissed for default, is restored by the order of the Court all ancillary orders passed in the suit shall revive, unless there is any other factor on record or in the order of dismissal to show to the contrary.
(iii) Shivaraya v. Sharnappa reported in AIR 1968 Mysore 283. It was also a case under Order 39. The question arose whether the restoration of the suit revives ancillary orders passed before the dismissal of the suit. It was held that it depends upon the terms in which the order of dismissal is passed and the terms in which the suit is restored.
If the Court dismisses the suit for default, without any reference to the ancillary orders passed earlier, then the interim orders shall revive as and when the suit is restored. However, if the Court dismisses the suit specifically vacating the ancillary orders, then restoration will not revive such ancillary orders.
(iv) Abdul Hamid v. Karim Bux, AIR 1973 All 67. Relying again on Ram Chand v. Pitam Mal, (1888) ILR 10 All. 506, the same view has been taken.
(v) Nandipati Rami Reddi v. Nandipati Padma Reddy, AIR 1978 AP 30. It was held that when the suit is restored, all interlocutory orders and their operation during the period between dismissal of the suit for default and restoration shall stand revived. That once the dismissal is set aside, the plaintiff must be restored to the position in which he was situated, when the Court dismissed the suit for default.
Therefore, it follows that interlocutory orders which have been passed before the dismissal would stand revived along with the suit when the dismissal is set aside and the suit is restored unless the Court expressly or by implication excludes the operation of interlocutory orders passed during the period between dismissal of the suit and the restoration.
Nagar Mahapalika v. Ved Prakash, AIR 1976 All. 264 – an Odd Decision
In Nagar Mahapalika v. Ved Prakash, AIR 1976 All. 264, it was observed with respect to interim injunction, relying on Ram Chand v. Pitam Mal, (1888) ILR 10 All. 506, that the interim injunction would not automatically revive on restoration of the suit dismissed for default.
The Supreme Court (in Vareed Jacob v. Sosamma Geevarghese) did not approve this decision and observed –
- “However, this is the only judgment which has equated order of temporary injunction with attachment before judgment as interlocutory orders without considering provisions of Order 38, Rule 9 and Rule 11.”
The Apex Court continued –
- “This has not been noticed by the Allahabad High Court in the case of Nagar Mahapalika v. Ved Prakash (supra). All the earlier judgments of the Allahabad High Court related to Order 38 and not to Order 39. Moreover as stated above, attachment is a part of execution process. It is granted to protect the decree. Under Order 38, Rule 11 it is further provided that when the suit is decreed the Courts will continue attachment before judgment and the plaintiff is not required to re-apply for attachment. The scheme of Order 38 is different from Order 39 or Order 40. Hence, we cannot compare attachment under Order 38 with power of the Court to grant temporary injunction under Order 39 as interlocutory orders. Similarly, Order 21, Rule 57 indicates the duty on the Courts to order whether the attachment shall continue or cease on the dismissal of the execution suit.”
Dismissal of the Suit in Default, Attachment before Judgment Automatically Ceases
It is pointed out in Vareed Jacob v. Sosamma Geevarghese –
- Order 38, Rule 9 directs that the Court shall order withdrawal of attachment when the suit is dismissed.
- Therefore, Rule 9 makes it mandatory for the Court to lift the attachment at the time of the dismissal of the suit.
- Such a provision is not there under Order 39 or under Order 40.
It is Mandatory to Lift the Attachment on Dismissal of the Suit
In Vareed Jacob v. Sosamma Geevarghese, (2004) 6 SCC 378, the majority relied on the following decisions also:
(i) Raj Chandra Gupta v. Ramesh Kishore reported in AIR 1965 All 546. Relying on Ram Chand v. Pitam Mal, (1888) ILR 10 All. 506, it was held that on the dismissal of the suit either on merit or for default attachment before judgment shall cease and it shall not revive automatically on restoration of the suit.
(ii) Nancy John Lyndon v. Prabhati Lal Chowdhury reported in 1987 (4) SCC 78, it has been held that in view of Order 21, Rule 57, C. P. C. it is clear that with the dismissal of the title execution suit for default, the attachment levied earlier ceased. However, it has been further held that when the dismissal was set aside and the suit was restored, the effect of restoring the suit was to restore the position prevalent till the dismissal of the suit or before dismissal of the title execution suit. It was further pointed out that the scheme under Order 21, Rule 57 was similar to Order 38, Rule 11 and Rule 11-A, C P C and therefore, it cannot be applied to all interlocutory orders on the same basis.
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Civil Suits: Procedure & Principles
Book No, 1 – Civil Procedure Code
- Is it Mandatory to Lift the Attachment on Dismissal of the Suit? Will the Attachment Orders Get Revived on Restoration of Suit?
- Will Interlocutory Orders and Applications Get Revived on Restoration of Suit?
- Can an ‘Ex-parte’ Defendant Cross Examine Plaintiff’s Witness?
- Proof on ‘Truth of Contents’ of Documents, in Indian Evidence Act
- Civil Rights and Jurisdiction of Civil Courts
- Res Judicata and Constructive Res Judicata
- Order II, Rule 2 CPC – Not to Vex Defendants Twice
- Pleadings Should be Specific; Why?
- Pleadings in Defamation Suits
- UNDUE INFLUENCE and PLEADINGS thereof in Indian Law
- PLEADINGS IN ELECTION MATTERS
- Declaration and Injunction
- Law on Summons to Defendants and Witnesses
- Notice to Produce Documents in Civil Cases
- Production of Documents: Order 11, Rule 14 & Rule 12
- Sec. 91 CPC and Suits Against Wrongful Acts
- Remedies Under Sec. 92 CPC
- Mandatory Injunction – Law and Principles
- INJUNCTION is a ‘Possessory Remedy’ in Indian Law
- Interrogatories: When Court Allows, When Rejects?
- Decree in OI R8 CPC-Suit & Eo-Nomine Parties
- Pecuniary & Subject-Matter Jurisdiction of Civil Courts
- Transfer of Property with Conditions & Contingent Interests
- INJUNCTION is a ‘Possessory Remedy’ in Indian Law
- Doctrine of Substantial Representation in a Suit by or against an Association
- Who are Necessary Parties, Proper Parties and Pro Forma Parties in Suits
- What is Partnership, in Law? How to Sue a Firm?
- ‘Legal Representatives’, Not ‘Legal Heirs’ to be Impleaded on Death of Plaintiff/Defendant
- Powers and Duties of Commissioners to Make Local Investigations, Under CPC
- Burden of Proof – Initial Burden and Shifting Onus
- Is it Mandatory to Set Aside the Commission Report – Where a Second Commissioner is Appointed?
- Can a Commission be Appointed to Find Out the Physical Possession of a Property?
- Rules on Burden of proof and Adverse Inference
- Pendente Lite Transferee Cannot Resist or Obstruct Execution of a Decree
- Family Settlement or Family Arrangement in Law
- ‘Possessory Title’ in Indian Law
- Will Findings of a Civil Court Outweigh Findings of a Criminal Court?
- Waiver and Promissory Estoppel
Power of attorney
- No Adjudication If Power of Attorney is Sufficiently Stamped
- Notary Attested Power-of-Attorney Sufficient for Registration
- Permission when a Power of Attorney Holder Files Suit
- If Power of Attorney himself Executes the Document, S. 33 Registration Act will NOT be attracted
- Is Registered Power of Attorney Necessary for Registration of a Deed? No.
Title, ownership and Possession
- Section 27, Limitation Act Gives-Rise to a Substantive Right so as to Seek Declaration and Recovery
- Sale Deeds Without Consideration – Void
- Recovery of Possession Based on Title and on Earlier Possession
- Title and Ownership in Indian Law
- Admission by itself Cannot Confer Title
- Does ‘Abandonment’ Give rise to a Recognised Right in Indian Law?
- POSSESSION is a Substantive Right in Indian Law
- 22nd Law Commission Report on ‘Law on Adverse Possession’
- Government of Kerala v. Joseph – Law on Adverse Possession Against Government
- How to Plead Adverse Possession? Adverse Possession: An Evolving Concept
- Adverse Possession: Burden to Plead Sabotaged
- Does ‘Abandonment’ Give rise to a Recognised Right in Indian Law?
- When ‘Possession Follows Title’; ‘Title Follows Possession’?
- Ultimate Ownership of All Property Vests in State; It is an Incident of Sovereignty.
- ‘Mutation’ by Revenue Authorities & Survey will not Confer ‘Title’
- Preemption is a Very Weak Right; For, Property Right is a Constitutional & Human Right
- Transfer of Property with Conditions & Contingent Interests
- Family Settlement or Family Arrangement in Law
- INJUNCTION is a ‘Possessory Remedy’ in Indian Law
- ‘Possessory Title’ in Indian Law
- Kesar Bai v. Genda Lal – Does Something Remain Untold?
- Grant in Law
Adverse Possession
- How to Plead Adverse Possession? Adverse Possession: An Evolving Concept
- Adverse Possession: Burden to Plead Sabotaged
- Does ‘Abandonment’ Give rise to a Recognised Right in Indian Law?
- When ‘Possession Follows Title’; ‘Title Follows Possession’?
- Government of Kerala v. Joseph – Law on Adverse Possession Against Government
- ‘Possessory Title’ in Indian Law
- Admission by itself Cannot Confer Title
- Ouster and Dispossession in Adverse Possession
Principles and Procedure
- Doctrines on Ultra Vires, Rule of Law, Judicial Review, Nullification of Mandamus, and Removing the BASIS of the Judgment
- Can an ‘Ex-parte’ Defendant Cross Examine Plaintiff’s Witness?
- Will – Probate and Letters of Administration
- Appreciation of Evidence by Court
- Effect of Not Cross-Examining a Witness & Effect of Not Facing Complete Cross-Examination by the Witness
- Suggestions & Admissions by Counsel, in Cross Examination to Witnesses
- Admission by itself Cannot Confer Title
- Best Evidence Rule in Indian Law
- Declaration and Injunction
- Pleadings Should be Specific; Why?
- Does Alternate Remedy Bar Civil Suits and Writ Petitions?
- Void, Voidable, Ab Initio Void, and Sham Transactions
- Can Courts Award Interest on Equitable Grounds?
- Natural Justice – Not an Unruly Horse
- ‘Sound-mind’ and ‘Unsound-Mind’
- Prescriptive Rights – Inchoate until the Title thereof is Upheld by a Competent Court
- Can a Party to Suit Examine Opposite Party, as of Right?
- Forfeiture of Earnest Money and Reasonable Compensation
- Doctrine of ‘Right to be Forgotten’ in Indian Law
- Proof on ‘Truth of Contents’ of Documents, in Indian Evidence Act
Admission, Relevancy and Proof
- Relevancy, Admissibility and Proof of Documents
- Admission of Documents in Evidence on ‘Admission’
- Admission by itself Cannot Confer Title
- Proof and Truth of Documents
- Proof of Documents & Objections To Admissibility – How & When?
- Burden of Proof – Initial Burden and Shifting Onus
- Appreciation of Evidence by Court
- Production, Admissibility & Proof Of Documents
- Modes of Proof – Admission, Expert Evidence, Presumption etc.
- Marking Documents Without Objection – Do Contents Proved
- Substantive Documents, and Documents used for Refreshing Memory and Contradicting
- Oral Evidence on Contents of Document, Irrelevant
- Proof on ‘Truth of Contents’ of Documents, in Indian Evidence Act
Land Laws/ Transfer of Property Act
- Freehold Property in Law
- What is Patta or Pattayam?
- Does ‘Pandaravaka Pattom’ in Kerala Denote Full-Ownership?
- Transfer of Property with Conditions & Contingent Interests
- Vested Remainder and Contingent Remainder
- Vested interest and Contingent Interest
- Ultimate Ownership of All Property Vests in State; It is an Incident of Sovereignty.
- Land Acquired Cannot be Returned – Even if it is Not Used for the Purpose Acquired
- ‘Mutation’ by Revenue Authorities & Survey will not Confer ‘Title’
- FERA, 1973 And Transfer of Immovable Property by a Foreigner
- Marumakkathayam – A System of Law and Way of Life Prevailed in Kerala
- Relevant provisions of Kerala Land Reforms Act in a Nutshell
- Land Tenures, and History of Land Derivation, in Kerala
- ‘Janmam’ Right is FREEHOLD Interest and ‘Estate’ in Constitution – By Royal Proclamation of 1899, The Travancore Sircar became Janmi of Poonjar Raja’s Land
- Government is the OWNER of (Leasehold) Plantation Lands in Kerala.
- Sale Deeds Without Consideration – Void
- Law on Acquisition of Private Plantation Land in Kerala
- Law on SUCCESSION CERTIFICATE and LEGAL HEIRSHIP CERTIFICATE
- Grant in Law
Evidence Act – General
- Evidence in Court – General Principles
- Expert Evidence and Appreciation of Evidence
- How to Contradict a Witness under Sec. 145, Evidence Act
- Rules on Burden of proof and Adverse Inference
- Best Evidence Rule in Indian Law
- What is Collateral Purpose?
- Burden of Proof – Initial Burden and Shifting Onus
- Appreciation of Evidence by Court
- Effect of Not Cross-Examining a Witness & Effect of Not Facing Complete Cross Examination by the Witness
- Suggestions & Admissions by Counsel, in Cross Examination to Witnesses
- Modes of Proof – Admission, Expert Evidence, Presumption etc.
- Admission by itself Cannot Confer Title
- How to Prove a Will, in Court?Is Presumption enough to Prove a Registered Will?
- Significance of Scientific Evidence in Judicial Process
- Polygraphy, Narco Analysis and Brain Mapping Tests
- What is Section 27 Evidence Act – Recovery or Discovery?
- How ‘Discovery’ under Section 27, Evidence Act, Proved?
- Pictorial Testimony Theory and Silent Witnesses Theory
- Proof on ‘Truth of Contents’ of Documents, in Indian Evidence Act
Sec. 65B
- Sec. 65B, Evidence Act: Arjun Paditrao Criticised.
- Sec. 65B Evidence Act Simplified
- ‘STATEMENTS’ alone can be proved by ‘CERTIFICATE’ u/s. 65B
- Sec. 65B, Evidence Act: Certificate forms
- Certificate is Required Only for ‘Computer Output’; Not for ‘Electronic Records’: Arjun Panditrao Explored.
- How to Prove ‘Whatsap Messages’, ‘Facebook’ and ‘Website’ in Courts?
Law on Documents
- Production, Admissibility & Proof Of Documents
- Relevancy, Admissibility and Proof of Documents
- Admission of Documents in Evidence on ‘Admission’
- Time Limit for Registration of Documents
- Registration of Documents Executed out of India
- How to Prove a Will, in Court?Is Presumption enough to Prove a Registered Will?
- Are RTI Documents Admissible in Evidence as ‘Public Documents’?
- Oral Evidence on Contents of Document, Irrelevant
- Effect of Marking Documents Without Objection – Do Contents Stand Proved?
- Proof of Documents & Objections To Admissibility – How & When?
- Notary-Attested Documents: Presumption, Rebuttable
- What is Collateral Purpose?
- No Application Needed for Filing or Admitting Copy
- Presumptions on Registered Documents & Truth of Contents
- Notice to Produce Documents in Civil Cases
- Production of Documents: Order 11, Rule 14 & Rule 12
- Modes of Proof – Admission, Expert Evidence, Presumption etc.
- Proof and Truth of Documents
- Secondary Evidence of Documents & Objections to Admissibility – How & When?
- 30 Years Old Documents and Presumption of Truth of Contents, under Sec. 90 Evidence Act
- Unstamped & Unregistered Documents and Collateral Purpose
- Adjudication as to Proper Stamp under Stamp Act
- Marking Documents Without Objection – Do Contents Proved
- Cancellation of Sale Deeds and Settlement Deeds & Powers of Sub-Registrar in Registering Deeds
- Substantive Documents, and Documents used for Refreshing Memory and Contradicting
- How to Contradict a Witness under Sec. 145, Evidence Act
- Visual and Audio Evidence (Including Photographs, Cassettes, Tape-recordings, Films, CCTV Footage, CDs, e-mails, Chips, Hard-discs, Pen-drives)
- Pictorial Testimony Theory and Silent Witnesses Theory
- No Adjudication Needed If Power of Attorney is Sufficiently Stamped
- Can an Unregistered Sale Agreement be Used for Specific Performance
- Impounding of Documents – When Produced; Cannot Wait Till it is Exhibited
Interpretation
- Interpretation of Statutes – Literal Rule, Mischief Rule and Golden Rule
- Interpretation of Documents – Literal Rule, Mischief Rule and Golden Rule
- Interpretation of Wills
- Appreciation of Evidence by Court
Contract Act
- ‘Sound-mind’ and ‘Unsound-Mind’ in Indian Civil Laws
- Forfeiture of Earnest Money and Reasonable Compensation
- Who has to fix Damages in Tort and Contract?
- UNDUE INFLUENCE and PLEADINGS thereof in Indian Law
- Can an Unregistered Sale Agreement be Used for Specific Performance
Law on Damages
- Law on Damages
- Who has to fix Damages in Tort and Contract?
- Law on Damages in Defamation Cases
- Pleadings in Defamation Suits
Easement
- Easement Simplified
- What is Easement? Does Right of Easement Allow to ‘Enjoy’ After Making a Construction?
- Prescriptive Rights – Inchoate until the Title thereof is Upheld by a Competent Court
- Will Easement of Necessity Ripen into a Prescriptive Easement?
- What is “period ending within two years next before the institution of the suit”?
- Is the Basis of Every Easement, Theoretically, a Grant
- Extent of Easement (Width of Way) in Easement of Necessity, Quasi Easement and Implied Grant
- Can Easement of Necessity and of Grant be Claimed in a Suit (Alternatively)?
- “Implied Grant” in Law of Easements
- Can an Easement-Way be Altered by the Owner of the Land?
- Village Pathways and Right to Bury are not Easements.
- Custom & Customary Easements in Indian Law
- ‘Additional Burden Loses Lateral Support’ – Incorrect Proposition
- Grant in Law
Stamp Act & Registration
- Cancellation of Sale Deeds and Settlement Deeds & Powers of Sub-Registrar in Registering Deeds
- Time-Limit For Adjudication of Unstamped Documents, before Collector
- Time Limit for Registration of Documents
- Registration of Documents Executed out of India
- LAW ON INSUFFICIENTLY STAMPED DOCUMENTS
- Adjudication as to Proper Stamp under Stamp Act
- Unstamped & Unregistered Documents and Collateral Purpose
- Impounding of Documents, When Produced; Cannot Wait Till it is Exhibited
- No Adjudication Needed If Power of Attorney is Sufficiently Stamped
- Notary Attested Power-of-Attorney Sufficient for Registration
Will
- How to Prove a Will, in Court?Is Presumption enough to Prove a Registered Will?Interpretation of Wills
- Interpretation of Inconsistent Clauses in a Will
- Will – Probate and Letters of Administration
- Executors of Will – Duties & their Removal
- How to Prove a Will, in Court?Is Presumption enough to Prove a Registered Will?
- How to Write a Will? Requirements of a Valid Will
- When Execution of a Will is ‘Admitted’ by the Opposite Side, Should it be ‘Proved’?
Arbitration
- N.N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. and Ground Realities of Indian Situation
- What are Non-Arbitrable Disputes? When a Dispute is Not Referred to Arbitration in spite of Arbitration Clause
- Termination or Nullity of Contract Will Not Cease Efficacy of the Arbitration Clause
- No Valid Arbitration Agreement ‘Exists’ – Can Arbitration Clause be Invoked?
Divorce/Marriage
- Presumption of Valid Marriage – If lived together for Long Spell
- Validity of Foreign Divorce Decrees in India
- Is ‘Irretrievable Brake-down of Marriage’, a Valid Ground for Divorce in India?
- Foreign Divorce Judgment against Christians having Indian Domicile
Negotiable Instruments Act
- “Otherwise Through an Account” in Section 142, NI Act
- Where to file Cheque Bounce Cases (Jurisdiction of Court – to file NI Act Complaint)?
- Cheque Dishonour Case against a Company, Firm or Society
- What is ‘Cognizance’ in Law
Book No. 2: A Handbook on Constitutional Issues
- Judicial & Legislative Activism in India: Principles and Instances
- Can Legislature Overpower Court Decisions by an Enactment?
- Separation of Powers: Who Wins the Race – Legislature or Judiciary?
- Kesavananda Bharati Case: Never Ending Controversy
- Mullaperiyar Dam: Disputes and Adjudication of Legal Issues
- Article 370: Is There Little Chance for Supreme Court Interference
- Maratha Backward Community Reservation: SC Fixed Limit at 50%.
- Polygraphy, Narco Analysis and Brain Mapping Tests
- CAA Challenge: Divergent Views
- FERA, 1973 And Transfer of Immovable Property by a Foreigner
- Doctrine of ‘Right to be Forgotten’ in Indian Law
- Doctrines on Ultra Vires and Removing the BASIS of the Judgment, in ED Director’s Tenure Extension Case (Dr. Jaya Thakur Vs. Union of India)
- Dr. Jaya Thakur v. Union of India – Mandamus (Given in a Case) Cannot be Annulled by Changing the Law
- Art. 370 – Turns the Constitution on Its Head
Religious issues
- Secularism and Art. 25 & 26 of the Indian Constitution
- Secularism & Freedom of Religion in Indian Panorama
- ‘Ban on Muslim Women to Enter Mosques, Unconstitutional’
- No Reservation to Muslim and Christian SCs/STs (Dalits) Why?
- Parsi Women – Excommunication for Marrying Outside
- Knanaya Endogamy & Constitution of India
- Sabarimala Review Petitions & Reference to 9-Judge Bench
- SABARIMALA REVIEW and Conflict in Findings between Shirur Mutt Case & Durgah Committee Case
- Ayodhya Disputes: M. Siddiq case –Pragmatic Verdict
Book No. 3: Common Law of CLUBS and SOCIETIES in India
- General
- Property & Trust
- Juristic Personality
- Suits
- Amendment and Dissolution
- Rights and Management
- Election
- State Actions
Book No. 4: Common Law of TRUSTS in India
- General Principles
- Dedication and Vesting
- Trustees and Management
- Breach of Trust
- Suits by or against Trusts
- Law on Hindu Religious Endowments
- Temples, Gurudwaras, Churches and Mosques – General
- Constitutional Principles
- Ayodhya and Sabarimala Disputes
- General
Saji Koduvath Associates 
Your answer to the question, Will Interlocutory Applications (automatically) Get Revived on Restoration of Suit?, appears to be misconceived. Only ‘interlocutory orders’ passed before the dismissal of the suit for default will get revived on restoration of the suit. As far as applications pending consideration are concerned, unless those are restored cannot revive on restoration of the suit.
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Corrected according to your valuable suggestion.
Thanks sir.
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So what about application that have not been decided in the final judgment in a suit & kept pending, is this not a judicial error, so, will they get revived when the defendant files the RFA? Should they not be decided first if such an application is made in the RFA in the 1st. instance before the RFA is decided?
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