TaxTMI 
TaxTMI 
TaxTMI 
2004 (4) TMI 571
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....cheme of the Consumer Protection Act, the consumer courts do not have any power to issue injunction. The jurisdiction to issue an order of injunction, appointment of a receiver or to pass an order of attachment before attachment would, therefore, depend upon the scheme of the statute and the powers conferred on the Court thereby. This may be one of the factors which is required to be taken into consideration for making a distinction between a supplemental proceedings and incidental proceedings. A court or a tribunal entitled to adjudicate upon an issue arising in a lis between the parties has the requisite jurisdiction to pass orders which are incidental thereto so as to enable it to effectively adjudicate the same. Such a power of a Court or a Tribunal to do all things necessary to effectively adjudicate upon the lis need not, in other words, be specifically conferred by the statute; such power being ancillary to the power of the court. It is adjunct to the court's/tribunal's power of adjudication. The Code of Civil Procedure uses different expressions in relation to incidental proceedings and supplemental proceedings. Incidental proceedings are referred to in Part III o....
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....manent injunction or may have an effect even if a decree is passed, as, for example, for the purpose of determination as regard the status of the parties violating the order of injunction or the right of a transferee whom have purchased the property in disobedience of the order of injunction. The orders passed in supplemental proceedings may have to be treated distinctly as opposed to an order which is ancillary in nature or which has been passed in the incidental proceedings. The question must, therefore, be considered having regard to the aforementioned legal principles in mind. We may at this juncture notice those decisions wherein it has been held that the interlocutory order is automatically revived on restoration of suits. In Bankim Chandra and Others Vs. Chandi Prasad [AIR 1956 Patna 271] the Court was concerned with the revival of an order of stay. It was held, having regard to the scheme of law laid down in the Code of Civil Procedure that interlocutory orders like one of 'stay' are nothing but ancillary orders and they are all meant to aid and supplement the ultimate decision arrived at in the main suit or appeal. Even in such a situation when there is any other....
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....id not revive after setting aside of the ex parte order. The said observation is obiter in nature and in any event, no detailed discussions as regard the nature of the power of the Court under Section 148 of the Code of Civil Procedure had been made. The jurisdiction of the court under Section 148 of the Code of Civil Procedure is an ancillary power and not a supplementary one. In Smt. Radhey Bai Vs. Smt. Savitri Sharma [1975 RLR 234], Delhi High Court was concerned with an ancillary power of a court as would appear from the following observations: "7...It is, therefore, obvious that on setting the dismissal aside, the court has to appoint a day for proceeding with the suit and not for trying the suit de novo. This indicates that the further proceedings in the suit have to start from the stage and point where they were pending before the suit was dismissed and there is no requirement of law that upon such restoration the entire proceedings must be reached again. Consequently on the restoration of a dismissed suit, all the previous proceedings and the interim orders revive and do not require a fresh order to give them vigour." In Kishan Lal Vs. Smt. Kamla Devi Sharma [1979 RLW 3....
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....attention of the Court as would appear from a long line of decisions. In Chunni Kuar Vs. Dwarka Prasad [1887 All WN 297], it was held: "That temporary injunction came to an end on the passing of the decree, and nothing has happened to revive or keep alive the order for the temporary injunction. Dwarka Prasad was not left without his remedy. He might have applied to this Court for an injunction pending the determination of his appeal. No such application has been made to this Court, and therefore, I am of opinion that Musammat Chunni Kuar was and is entitled to have the money paid out of Cour to her and to have this appeal allowed with Costs. The view I take is fortified by the judgment in Sheikh Moheeooddeen Vs. Sheikh Ahmed Hossein (14 W.R. 384)" As far back in 1887, the Allhabad High Court while considering the provisions of Sections 311 of the Old Code of Civil Procedure which is in pari materia with Order 38 Rule 5 of the Code of Civil Procedure, 1908 and referring to Chunni Kuar Vs. Dwarka Prasad [1887 All WN 297] noticed a contention which is in the following terms: "On the other hand, Mr. Colvin relies upon the last part of s.488 to show that an attachment before judgmen....
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....ievance as a person who has obtained a decree and attached property of the judgment-debtor whose attach property has been questioned and decided in summary proceedings and which are made expressly subject to a decision in a regular suit. Moreover, it cannot also be urged that all interlocutory orders like say those passed on applications for temporary injunction the operation of which would have to cease on the dismissal of a suit, would automatically be revived or can be deemed to be in force without any further orders by an appellate court or by the same Court after the suit is dismissed. To hold so would lead to obvious and real difficulties. It is not also as though the plaintiff in such a case has no remedy. He could always apply to the same Court if a suit which has been dismissed for default is restored to file or to an appellate court which has also ample powers to grant an order of attachment before judgment under the provisions of S. 107(2), Civil P.C. In any event the possibility of hardship cannot warrant the ignoring of the express provisions of O.38, R.9 by which it is specifically laid down that an attachment before judgment shall cease by the dismissal of a suit." ....
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....tice of India then was), however, noticed that by restoration of the suit, the order dated 13.1.1978 whereby an order directing to deposit the arrears of rent did not revive, stated the law thus: "The order in regard to striking off the defence is vitally different from the order directing the arrears of rent to be deposited. I, therefore, hold that in the present case, the order dated 6.2.1979 revived automatically on the restoration of the suit and the view taken by the court below is correct." The Parliament consciously used two different expressions 'incidental proceedings' and 'supplemental proceedings' which obviously would carry two different meanings. The expression 'ancillary' means aiding, auxiliary; subordinate; attendant upon; that which aids or promotes a proceeding regarded as the principal. The expression 'supplementary proceeding' on the other hand, would mean a separate proceeding in an original action, in which the court where the action is pending is called upon to exercise its jurisdiction in the interest of justice. The expression 'incidental' may mean differently in different contexts. While dealing with a procedura....
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....ly not on the ground that they provide for different interlocutory reliefs but having regard to the nature of the proceedings vis-`-vis the reliefs which can ultimately be granted. It would also not be correct to hold that the attachment proceeding is in effect and substance different from an order of injunction on the ground that the former is a part of execution process. The provisions of Order 38 Rule 9 of the Code of Civil Procedure, in my considered opinion, are not of much importance. The rule confers an independent and substantive statutory right on a defendant to bring it to the notice of the court that he is in a position to furnish security to meet the claim of the plaintiff and as such an order of attachment need not continue. The order of attachment also comes to an end in terms of the aforementioned provision when the suit is dismissed. The very nature of an order of attachment entails that in the event of dismissal of suit, the order comes to an end. Such a provision has been made by the legislature by way of abundant caution. Although it is of not much importance but we may notice that there exists a conflict of opinion as regard consequences of an order of attachme....