Order XL, Rules 1 & 2 CPC: Comprehensive Detailed Analysis with Citations
I. Conceptual Foundations of Interim Reliefs
1. Nature and Object
o Preservation of Status Quo: Interim orders maintain the
existing position by preventing parties from taking actions
detrimental to the subject-matter until final adjudication;
essential to prevent rendering a decree ineffectual [1].
o Provisional Character: These orders do not conclusively
determine rights; rather, they are protective and reversible,
underscoring their discretionary character [2].
o Purpose: (a) Avoid irreparable harm, (b) prevent multiplicity
of suits, (c) preserve the subject-matter and evidence
integrity.
2. Equitable Principles
o Chancery Influence: Interim reliefs in English courts aimed
at fairness, evolved into CPC’s Order 39; guided by conscience
and moral justice rather than strict legal rights [3].
o Fusion of Law and Equity: Though CPC is procedural,
Sections 94–106 and inherent powers under Section 151
embed equitable remedies to bridge statutory gaps [4].
3. Statutory Scheme & Interplay
o Order 39 Overview: Rules 1–2 confer substantive powers for
injunctions and preventive orders; Rules 3–5 set procedures—
service of notice, security, dissolution, variation [5].
o Interfacing Provisions:
Sections 95–106: General principles of injunctions and
enforcement.
Order 45: Receivership powers.
Order 1, Rule 10: Power to stay proceedings.
II. Order 39, Rule 1 CPC: Temporary Injunctions
Rule 1(1): “The court may…(a) restrain…by injunction…the defendant…; or (b) direct the
defendant to…secure ends of justice.”
A. Statutory Text & Legislative Intent
1. Textual Analysis:
o Clause (a): Prohibitory injunctions aimed at preventing harm.
o Clause (b): Mandatory injunctions compelling positive action.
2. Legislative History:
o 1908 debates reflect the need to curtail vexatious breaches
and protect property rights; Rule 1 was modeled on Order 37
of the English Rules of the Supreme Court [6].
B. Conditions Precedent (Three-Fold Test)
1. Prima Facie Case:
o Threshold: Case must be arguable with cogent evidence
(pleadings + affidavit); Iqbal Singh Marwah requires
demonstration beyond bare pleadings [8].
2. Irreparable Injury:
o Definition: Harm not compensable by damages (e.g., breach
of confidentiality, unique land transfer) [9].
3. Balance of Convenience:
o Test: Compare potential hardship; B.C. Chaturvedi mandates
harm be substantial and proximate [10].
C. Undertaking & Security
1. Mandate: Plaintiff’s undertaking to compensate wrongfully enjoined
defendant (Rule 1(3)).
2. Quantum: Determined by conceivable loss; Titan Industries rejects
speculative estimation [11].
D. Procedural Nuances
1. Application Drafting:
o Form No. 1 (Application): Procedural prerequisites—cause
title, relief, grounds tied to pleadings.
o Supporting Affidavit: Chronology, documentary exhibits,
jurisdictional averments.
2. Service of Notice (Rule 3):
o Standard: Minimum 10 days’ notice, unless urgency justifies
ex parte; Bemco Hydrospace sets a high bar [13].
3. Ex Parte Relief:
o Criteria: Urgency, risk of irretrievable damage; strictly limited
and must convert to inter partes hearing within a fixed time.
4. Duration & Variation:
o Operation: Continues until disposal; Rule 5 allows discharge
or variation on “cause shown” – change in facts, adequate
security.
5. Appeal & Revision:
o Challenging Injunction: Appeals under Section 104 CPC;
High Court revisional jurisdiction under Section 115.
6. Enforcement & Contempt:
o Courts may punish violations as contempt; injunctive orders
carry coercive force.
E. Landmark Judgments & Doctrinal Evolution
III. Order 39, Rule 2 CPC: Preventive Interlocutory
Orders
Rule 2(1): “If…proved…that any property…is likely to be disposed of…to the injury of the
plaintiff…the court may…make such interlocutory orders…”
A. Statutory Purpose & Scope
1. Objective: Prevent dissipation, alienation, removal of property that
would defeat final decree [15].
2. Distinction from Rule 1: No need to prove breach; focus on
safeguarding decree efficacy.
B. Essential Elements
1. Proof by Affidavit or Otherwise: Affidavit suffices, but court may
call oral evidence.
2. Order Types:
o Attachment of Property: Under Rule 2(4).
o Receivership: Appointment under Rule 2(2).
o Freezing Transfers/Accounts: Injunctions on disposals and
bank transactions.
3. Security Undertaking: Discretionary; guided by plaintiff’s means
and property nature.
C. Procedural Mechanics
1. Application Components:
o Affidavit of Merits and Urgency: Details of risk.
o Supporting Documents: Title deeds, transaction records,
valuations.
2. Notice and Hearing:
o Rules 3–5 Apply: Similar to Rule 1 procedures.
o Interim Orders: Subject to final suit determination.
3. Variation and Discharge:
o Application Under Rule 5: Demonstrate changed risk
circumstances.
4. Enforcement:
o Contempt Proceedings: For breach; receiver’s powers to
secure assets.
D. Leading Decisions
IV. Comparative Analysis & Strategic Guidance
Strategic Considerations
Choosing between Rule 1 and Rule 2 depends on ease of proving
breach versus risk of asset dissipation.
Draft applications with clear articulation of tests and thorough
documentary support.
Balance security bond quantum to mitigate cost without
compromising relief.
Convert ex parte relief to inter partes hearing promptly to sustain
order.
Invoke High Court’s Section 94 powers for extraordinary cases.
References
1. Mulla, Code of Civil Procedure, 17th ed., LexisNexis, pp. 1010–15.
2. Sarkar, The Code of Civil Procedure, 12th ed., Wadhwa, pp. 669–72.
3. Wood v. Leadbitter (1808) 13 East 841.
4. Section 151, CPC.
5. Order 39, Rules 1–5, CPC.
6. Parliamentary Debates, 1908.
7. Dalpat Kumar v. Prahlad Singh (1996) Supp 2 SCC 706.
8. Iqbal Singh Marwah v. Shakti Allied Health Services
(2004) 6 SCC 525.
9. Karshanbhai Garada v. Indian Gypsum Ltd. (1972) 2 SCC 593.
10. B.C. Chaturvedi v. Union of India (1995) 5 SCC 749.
11. Titan Industries v. Endeavour Marketing (2009) 11 SCC 290.
12. M/s. Chintamanrao v. Shobharam (1979) 1 SCC 287.
13. Bemco Hydrospace Ltd. v. Ejaz Ahmed (2015) 12 SCC 310.
14. Section 94, CPC.
15. Arjun Panditrao Khotkar v. Kailash Gorantyal
(2010) 5 SCC 283.
16. Pillai v. State of Kerala (1998) 5 SCC 221.
