Section 94: Supplemental proceedings

Code of Civil Procedure Section 93. Exercise of powers of Advocate-General outside presidency-towns.

PART VI

SUPPLEMENTAL PROCEEDINGS

94. Supplemental proceedings.—In order to prevent the ends of justice from being defeated the Court may, if it is so prescribed, —

(a) issue a warrant to arrest the defendant and bring him before the Court to show cause why he should not give security for his appearance, and if he fails to comply with any order for security commit him to the civil prison;

(b) direct the defendant to furnish security to produce any property belonging to him and to place the same at the disposal of the Court or order the attachment of any property;

(c) grant a temporary injunction and in case of disobedience commit the person guilty thereof to the civil prison and order that his property be attached and sold;

(d) appoint a receiver of any property and enforce the performance of his duties by attaching and selling his property;

(e) make such other interlocutory orders as may appear to the Court to be just and convenient.

Part in Red is original provisions from CPC reproduced here for reference.

Code of Civil Procedure Section 95. Compensation for obtaining arrest, attachment or injunction on insufficient ground.

Simplified Explanation:

Section 94 provides for supplemental proceedings. In order to prevent the ends of justice from being defeated the Court may issue a warrant of arrest against the defendant to bring him before the Court to show cause for giving security for his appearance or for failure thereof, to commit him to civil prison. It may also direct the defendant to furnish security and for failure thereof, to attach any of his properties, and also grant temporary injunction and in case of disobedience thereof, the person guilty can be sent to civil prison and his properties may be attached and sold. The Court has also been given a power to pass other interlocutory order as may appear to the Court to be just and convenient. Such a wide power has been given to the Court to prevent any person from defeating justice.

Generally, the Court should not pass any interim order in exercise of power under this Section unless there are compelling circumstances to do so, and while considering an application for such a relief, regard must be had to the nature of the controversy and the issues involved in the main matter. 

Judgment:

The Supreme Court in Rashtriya Ispat Nigam Ltd. V. Verma Transport Company, AIR 2006 SC 2800, placing reliance upon its earlier judgment in Vareed Jacob V. Sosamma Geevarghese, AIR 2004 SC 3992 explained the distinction between incidental and supplemental proceedings explaining that incidental proceedings are those which arise out of the main proceedings.

Reference: http://www.nja.nic.in/16%20CPC.pdf

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Exercise of powers of Advocate-General outside presidency-towns

 

Code of Civil Procedure Section

 

93. Exercise of powers of Advocate-General outside presidency-towns.— The powers conferred by sections 91 and 92 on the Advocate-General may, outside the presidency-towns, be, with the previous sanction of the State Government, exercised also by the Collector or by such officer as the State Government may appoint in this behalf.

 

Code of Civil Procedure Section

Section 92: Public charities

Code of Civil Procedure Section 91. Public nuisances and other wrongful acts affecting the public.

¹92. Public charities.—(1) In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate-General, or two or more persons having an interest in the trust and having obtained the ²[leave of the Court,] may institute a suit, whether contentious or not, in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate to obtain a decree :—

(a) removing any trustee;

(b) appointing a new trustee;

(c) vesting any property in a trustee;

³[(cc) directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property];

(d) directing accounts and inquiries;

(e) declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust;

(f) authorizing the whole or any part of the trust property to be let, sold, mortgaged or exchanged;

(g) settling a scheme; or

(h) granting such further or other relief as the nature of the case may require.

(2) Save as provided by the Religious Endowments Act, 1863 (XX of 1863), ⁴[or by any corresponding law in force in ⁵[the territories which, immediately before the 1st November, 1956, were comprised in Part B States]], no suit claiming any of the reliefs specified in sub-section (1) shall be instituted in respect of any such trust as is therein referred to except in conformity with the provisions of that sub-section.

⁶[(3) The Court may alter the original purposes of an express or constructive trust created for public purposes of a charitable or religious nature and allow the property or income of such trust or any portion thereof to be applied cy pres in one or more of the following circumstances, namely :—

(a) where the original purposes of the trust, in whole or in part,—

(i) have been, as far as may be, fulfilled; or

(ii) cannot be carried out at all, or cannot be carried out according to the directions given in the instrument creating the trust or, where there is no such instrument, according to the spirit of the trust; or

(b) where the original purposes of the trust provide a use for a part only of the property available by virtue of the trust; or

(c) where the property available by virtue of the trust and other property applicable for similar purposes can be more effectively used in conjunction with, and to that end can suitably be made applicable to any other purpose, regard being had to the spirit of the trust and its applicability to common purposes; or

(d) where the original purposes, in whole or in part, were laid down by reference to an area which then was, but has since ceased to be, a unit for such purposes; or

(e) where the original purposes, in whole or in part, have, since they were laid down,—

(i) been adequately provided for by other means, or

(ii) ceased, as being useless or harmful to the community, or

(iii) ceased to be, in law, charitable, or

(iv) ceased in any other way to provide a suitable and effective method of using the property available by virtue of the trust, regard being had to the spirit of the trust.]

Note:

1. Section 92 shall not apply to any religious trust in Bihar, see Bihar Act 1 of 1951.

2. Subs. by Act 104 of 1976, s. 31, for “consent in writing of the Advocate-General”, (w.e.f. 1-2-1977).

3. Ins. by Act 66 of 1956, s. 9.

4. Ins. by Act 2 of 1951, s. 13.

5. Subs. by the A.O. (No. 2), 1956, for “a Part B State”.

6. Ins. by Act 104 of 1976, s. 31 (w.e.f. 1-2-1977).

Part in Red is original provisions from CPC reproduced here for reference. 

Code of Civil Procedure Section 93. Exercise of powers of Advocate-General outside presidency-towns.

Simplified Explanation:

Section 92 deals with the suit relating to the management of trust and properties of trust. As the suit can be filed only with the leave of the Court, it is not permissible to entertain the application under Order VII Rule 11 at the subsequent stage. Such an application should be entertained prior to grant of the leave by the Court.

Section 92 CPC (suit relating to management of trust) r/w Section 12 of civil courts act. (Jurisdiction)

Insofar as the suits under Section 92 are concerned, the District Courts and Subordinate Courts will have concurrent jurisdiction without reference to any pecuniary limits. A suit under Section 92 of the Code, where the value of subject-matter does not exceed Rs. 1 lakh, cannot be filed in any Court as Section 92 confers jurisdiction only on District Court and Subordinate Courts.

Judgment:

In Sri Jeyarom Educational Trust & Ors. V. A.G. Syed Mohideen & Ors., (2010) 2 SCC 513 the Supreme Court held that "District courts will have concurrent jurisdiction to Courts on which jurisdiction have been conferred by the State by a notification under Section 92(1)".

See also:

Order VII Rule 11:  Rejection of plaint.

Reference: http://www.nja.nic.in/16%20CPC.pdf

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Section 91: Public nuisances and other wrongful acts affecting the public

Code of Civil Procedure Section 90. Power to state case for opinion of Court.

¹[PUBLIC NUISANCES AND OTHER WRONGFUL ACTS AFFECTING THE PUBLIC]

91. Public nuisances and other wrongful acts affecting the public.—²[(1) In the case of a public nuisance or other wrongful act affecting, or likely to affect, the public, a suit for a declaration and injunction or for such other relief as may be appropriate in the circumstances of the case, may be instituted,—

(a) by the Advocate-General, or

(b) with the leave of the Court, by two or more persons, even though no special damage has been caused to such persons by reason of such public nuisance or other wrongful act.]

(2) Nothing in this section shall be deemed to limit or otherwise affect any right of suit which may exist independently of its provisions.

Note: 1. Subs. by Act 104 of 1976, s. 30, for the former headings (w.e.f. 1-2-1977).

2. Subs. by s. 30, ibid., for sub-section (1) (w.e.f. 1-2-1977).

Part in Red is original provisions from CPC reproduced here for reference.

Code of Civil Procedure Section 92. Public charities.

Simplified Explanation:

Section 91 deals with public nuisance and other wrongful acts affecting the public. It is corresponding to the provisions of Section 133 Cr.P.C. for removal of nuisance. But Section 91 deals with the public nuisance only, though Section 133 Cr. P.C. Covers public as well as the private nuisance. Plaintiff does not need to prove that he has suffered any injury.

Reference: http://www.nja.nic.in/16%20CPC.pdf

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Power to state case for opinion of Court

 

Code of Civil Procedure Section

 

SPECIAL CASE

90. Power to state case for opinion of Court.—Where any persons agree in writing to state a case for the opinion of the Court, then the Court shall try and determine the same in the manner prescribed.

 

Code of Civil Procedure Section

Section 89: Settlement of disputes outside the Court

Code of Civil Procedure Section 88. Where interpleader-suit may be instituted.

PART V

SPECIAL PROCEEDINGS

ARBITRATION

¹[89. Settlement of disputes outside the Court.—(1) Where it appears to the Court that there exist elements of a settlement which may be acceptable to the parties, the Court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observations of the parties, the Court may reformulate the terms of a possible settlement and refer the same for :—

(a) arbitration;

(b) conciliation;

(c) judicial settlement including settlement through Lok Adalat: or

(d) mediation.

(2) Were a dispute has been referred—

(a) for arbitration or conciliation, the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply as if the proceedings for arbitration or conciliation were referred for settlement under the provisions of that Act;

(b) to Lok Adalat, the Court shall refer the same to the Lok Adalat in accordance with the provisions of sub-section (1) of section 20 of the Legal Services Authority Act, 1987 (39 of 1987) and all other provisions of that Act shall .apply in respect of the dispute so referred to the Lok Adalat;

(c) for judicial settlement, the Court shall refer the same to a suitable institution or person and such institution or person shall be deemed to be a Lok Adalat and all the provisions of the Legal Services Authority Act, 1987 (39 of 1987) shall apply as if the dispute were referred to a Lok Adalat under the provisions of that Act;

(d) for mediation, the Court shall effect a compromise between the parties and shall follow such procedure as may be prescribed.]

Note 1: Ins. by Act 46 of 1999, s. 7 (w.e.f. 1-7-2002), earlier rep. by Act 10 of 1940, s. 49 and the Third Schedule.

Part in Red is original provisions from CPC reproduced here for reference.

Code of Civil Procedure Section 90. Power to state case for opinion of Court.

History:

Section 89- Civil Procedure Code, 1859 contained Section 89 providing for arbitration by judicial intervention. The Code has repealed the earlier CPC 1882, and it added Section 89 providing for arbitration by judicial intervention. After commencement of the Arbitration Act, 1940, the provisions of Section 89 CPC were repealed considering that there was a duplication, and as special law prevails over general law, the provisions of Section 89 CPC 1908 would not serve any purpose. Subsequently because of the scientific developments, change in the nature of the litigation, globalisation, and industrialization etc., it was felt that neither the Arbitration Act 1940 nor CPC was able to cope with the problems. Thus, Arbitration Act, 1940 was repealed by Arbitration and Conciliation Act 1996, and vide CPC Amendment 1999, Section 89 was re-introduced with amendment, which came into force w.e.f. 1^st July, 2002.

Simplified Explanation:

The newly added Section 89 contains 4 alternative forums of dispute resolution, putting an obligation on the Court that once the issues are framed after considering the contents of the plaint, written statement, explanation and statement of the parties recorded under Order 10 Rule 1; the Court may consider as to whether there is any element of settlement which may be acceptable to the parties. It may formulate those points and give them to the parties for the purpose of their observations and after receiving their observations, the Court may re-assess and re-formulate a term by a possible settlement and refer the same for 

(a) arbitration, 

(b) conciliation, 

(c) judicial settlement including Lok Adalat, or 

(d) Mediation. 

Why provisions of Section 89 are required?

Such a requirement is there so that the Court may not become prejudice against a party, due to which the proceedings could not succeed. The Courts have to frame the Rules in this regard.

The remedies prescribed by Section 89 has advantage as the parties are in control of their proceedings. The matter can be settled within short span of period. There will be no strained relations between the parties, and in case the matter is resolved by any of the procedures provided under Section 89 of the Code, the plaintiff shall be entitled for claim of refund of the Court Fees paid by him, as provided under Section 16 of the Court Fees Act, 1870. The said provision has been amended recently, and it reads as under:- “Where the Court refers the parties to the suit to any one of the code of settlement of disputes referred to in Section 89 of the Code of Civil Procedure 1908, the plaintiff shall be entitled to a certificate from the Court authorising him to receive back from the Collector the full amount of fee paid in respect of such plaint.”

Provisions for working of Section 89:

In order to facilitate the working of alternative forums, as provided under Section 89 of the Code, the provision contained in Order 10 Rule 1A provides for a direction of the Court to the party to opt for any one mode of alternative dispute resolution. Order 10 Rule 1B similarly provides for a procedure for appearance etc. when the matter is referred to the conciliatory forum. Order 10 Rule 1C provides for the reference back to the Court consequent to failure of efforts of conciliation.

Section 89 proceedings at appellate stage:- There is no dispute to the settled legal provision that the pleadings can be amended at any stage. A party can also be impleaded at any stage of the proceedings. In such an eventuality, as the appeal is a continuation of suit, there should be no problem in resorting to the procedure prescribed under Section 89 by the Court at appellate stage.

To know more read these: -

Arbitration and Conciliation

Lok Adalat

Mediation. 

Order 10 Rule 1. Ascertainment whether allegations in pleadings are admitted or denied.

Order 10 Rule 1A. Direction of the court to opt for any one mode of alternative dispute resolution.

Order 10 Rule 1B. Appearance before the conciliatory forum or authority.

Order 10 Rule 1C. Appearance before the court consequent to the failure of efforts of conciliation.

Reference: http://www.nja.nic.in/16%20CPC.pdf

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Where interpleader-suit may be instituted

 

Code of Civil Procedure Section

 

INTERPLEADER

88. Where interpleader-suit may be instituted.—Where two or more persons claim adversely to one another the same debts, sum of money or other property, movable or immovable, from another person, who claims no interest therein other than for charges or costs and who is ready to pay or deliver it to the rightful claimant, such other person may institute a suit of interpleader against all the claimants for the purpose of obtaining a decision as to the person to whom the payment or delivery shall be made and of obtaining indemnity for himself :

Provided that where any suit is pending in which the rights of all parties can properly be decided, no such suit of interpleader shall be instituted.

 

Code of Civil Procedure Section