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.