Meaning:

“Interlocutory application” means an application to the Court in any suit, appeal or proceeding already instituted in such Court, other than a proceeding for execution of a decree or order.

The Civil Rules of Practice and Circular Orders, Chapter I – Preliminary – Rule 2 (J) defines: “Interlocutory application” means an application to the Court in any suit, appeal or proceeding already instituted in such Court, other than a proceeding for
execution of a decree or order. Chapter V: deals with (A) Interlocutory proceedings – Rule 53 to 55, 58 and 59 of Civil Rules of Practice further deals with about the form, contents, separate application for each distinct prayer and service of notice to other parties and every interlocutory application shall be supported by an affidavit and true copies of application, affidavit and the documents shall be furnished to the opposite party or counsel.

Types of Interlocutory Applications 

There is a wide variety of types of interlocutory applications. Common types include:

Injunctive Relief

Orders that stop the other party from doing something, like terminating a contract or completing a sale purchase. They are usually urgent, requiring the orders by a certain deadline.

Particulars

Orders to compel a party to provide particulars (details) that the other party has requested, seeking clarification of information in legal documents, including a statement of claim or defense.

Discovery

Orders to compel a party to provide certain documents sought by the other party through the discovery process. Therefore, an interlocutory application seeks orders that the documents should be discovered.

Subpoenas

Subpoenas are orders to determine whether a party can ask a third party to provide certain documents. As above, the other party may object to documents sought by the other party because they are not relevant to the proceedings.

Interrogatories

Orders to compel the other party to answer certain questions, required to determine a position on a matter in dispute. He questions must be necessary and to help provide a fair trial.

Medical Examination

Orders that one party submit to a medical examination. For example, this may be sought where the other party has concerns about the medical condition of that party and how it may impact the matters in dispute.

Setting Aside a Default Judgment

Orders to set aside (overturn) a judgment ordered by the court when the other side fails to lodge a defence by the deadline.

Steps to Make an Interlocutory Application

You usually make interlocutory applications after issuing court proceedings but before the final hearing date. The procedure to make an interlocutory application is below. 

1. Complete an Application Form

An interlocutory application usually starts when the party seeking the orders files an application form. These vary among states and territories, for example, in New South Wales, it will be a Notice of Motion. 

2. Provide Evidence 

The application must be accompanied by evidence supporting your request. For instance, this is usually an affidavit (verified statement) of the party seeking the order and will include relevant documents. 

3. File and Serve

You must file the application form and supporting affidavit with the court and then serve it personally on the other party, or via the other party’s lawyers.

4. Ex Prate Hearing

If the orders you seek are urgent, you may request that the interlocutory hearing be ‘ex parte’, meaning without the other party attending. 

5. Interlocutory Hearing

If the other party does not consent to the orders sought, the court will list it for an interlocutory hearing. Depending on the orders sought, this may be short and conducted in a few hours, or a full day or more. However, both parties will have the opportunity to make their arguments and question any witnesses if relevant. 

6. Preparation and Hearing

Usually, your barrister (or counsel) will attend the hearing. Preparation will involve written submissions setting out your arguments with reference to any evidence filed with the interlocutory application. Furthermore, other helpful preparation legal documents might be a chronology, setting out a timeline of relevant events.

ENQUIRIES AND ORDERS IN INTERLOCUTORY APPLICATIONS:

Temporary injunctions

Order 39 of the Code of Civil Procedure, 1908 read with Section 94 (c) of the same code deals with the granting of temporary injunctions. Suitable injunctions or interim orders of the like nature can be granted where an easement is actually disturbed
or in the case of proceedings before the insolvency Courts or in the case of proceedings under the Guardians and Wards Act, 1890 or in the case of certain proceedings under Companies Act or in the case of proceedings under certgain State Acts or the rules framed thereunder or in different proceedings, under the Code of Criminal Procedure, 1973 or even by High Courts and Supreme Court in appropriate proceedings, certain statutes in certain proceedings, like the election proceedings specifically prohibit the granting of injunctions.
An injunction is a Judicial process whereby a party is ordered to refrain from doing or to do particular act or thing. In the former case it is called a restrictive injunction and in the later a mandatory injunction. Injunction may be either final remedy obtained by a suit or a preliminary and interlocutory relief granted while the suit is pending. In the first case it is a decree in the second an order or writ. Whatever be its forms, decree or order, the remedy by ordinary injunction is wholly preventive, prohibitory
or protective. An injunction is a writ framed according to the circumstances of the case commanding an act which the Court regards as essential to Justice or restraining an act which it esteems contrary to equity and good conscience.

An injunction is a remedial writ which Court issues for the purpose of enforcing their equity jurisdiction. Injunction is writ commonly used by Courts of equity as incident to enforcement of its commands and decrees. An injunction is an order of the Court granted for the purpose of restraining the doing, continuance or repetition by the person enjoined, his servants or agents of some wrongful act which constitutes an infringement of a legal or equitable right as for instance, a breach of contract.

Injunctions are often classified into prohibitory or mandatory injunctions according as whether they restrain or require the performance of the act which is in question. An injunction is a specific order of the Court forbidding the commission of a
wrongful course of action already began. Injunctions are a form of equitable relief and they have to be adjusted in
aid of equity and justice to the facts of each particular case.

The object of granting an interlocutory injunction is to preserve the matter pending the trial. Even a mandatory injunction can be granted on an interlocutory application but such power should be exercised by the Court sparingly and with great care
and caution. The jurisdiction to grant preventive relief may primarily rest upon contractual obligations between the partners the violation of which will be prevented to avoid irreparable injury and vexatious or interminable litigation. Injunction cannot be issued in favour of a trespasser or a person who gained unlawful possession as against the true owner of the property.

An injunction granted pendente lite until the disposal of the suit or further orders will end in any case on the disposal of the suit or any earlier date on which further orders may be passed. The words until further orders do not extend its duration beyond
the date of decree. (Balbahadur Vs Bala,AIR 1924 Mad.178). Discretion must be judicial and arbitrary: While granting or refusing an injunction, the Courts have to take into consideration all the circumstances of the case. Normally the discretion exercised by the trial Court will not be interfered with by a Court of appeal unless such erroneous exercise of jurisdiction resulted in grave mis-carriage of justice. (Shadi vs. Anrup Singh, ILR 112 All 436)

ATTACHMENT BEFORE JUDGMENTS

(Order 38 Rule 5 of Code Civil Procedure deals with attachment before judgments) The general rule is that a plaintiff must first obtain a decree and then execute the same. The question of arrest of the debtor or attachment of the property would arise at the stage of execution of the decree. However, under special circumstances which are specified in Rules 1 and 5 of Order 38 Code of Civil Procedure the creditor can take out arrest or attachment against his debtor even before the judgment.
Order 38 Rule 5: Where defendant may be called upon to furnish security for production of property – (1) Where, at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him, –
(a) is about to dispose of the whole or any part of his property, or
(b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court, the Court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to
produce and place at the disposal of the Court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security.
(2) The plainiff shall, unless the Court otherwise directs, specify the property required to be attached and the estimated value thereof.
(3) The Court may also in the order direct the conditional attachment of the whole or any portion of the property so specified.
(4) If an order of attachment is made without complying with the provisions of sub-rule
(1) of this rule, such attachment shall be void.

(1) Court while exercising its jurisdiction under Order XXXVIII, Rule 5 of CPC is required to form a prima facie opinion at that stage. (Rajendran vs. Shankar Sundaram, AIR 2008 SC 1170)

Appointment of Commissioners

The provisions relating to appointment of Commissioner is set out in Civil Procedure code. Under “Incidental proceedings” section 75 and Order XXVI Rules 1 to 22 of the Code deal with it

The aspect of Advocate Commissioner is dealt under section 75 and Order XXVI rule 9 of Code. Civil Rules of Practice from rules 134 to 141 also deal with it.
As per section section 75 of the Code subject to conditions and limitations as may be prescribed, the court may issue a commission in following aspects namely –
a) To examine any person;
b) To make a local investigation;
c) To examine or adjust accounts; or
d) To make a partition;
e) To hold a scientific, technical, or expert investigation;
f) To conduct sale of property which is subject to speedy and natural decay and which is in the custody of the Court pending the determination of the suit;
g) To perform any ministerial act.” Whereas Order XXVI rule 9 specifically deal with Commissions to make local investigation. The rule states that in any suit in which the court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount of any Menes profits or damages or annual net profits, the court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the court:

Receivers

The court may appoint a receiver in a variety of circumstances. An appointment may be made to, for example, preserve assets where there is a dispute within a partnership or a company pending a decision on the matters of dispute. This appointment is intended to maintain the value of the assets so that they may be realised for the benefits of all parties to the dispute.
The court may appoint a receiver where assets subject to a charge have been transferred without the consent of the charge-holder or to in regard to a proceeds of crime order. The court may appoint a receiver on behalf of a debenture holder or judgment creditor to enforce payment.
The court’s power to appoint a receiver It is provided under Order XL in Code of Civil Procedure, 1908. contains 5 rules, and also provided in section 94 supplemental proceedings – in order to prevent the ends of justice from being defeated the court may, if it is so prescribed .
“A receiver”, in the language of High, “is an indifferent (American expression for impartial) person between the parties to a cause, appointed by the Court to receive and preserve the property or fund in litigation “pendentie lite’, when it does not seem reasonable to the Court that either party should hold it. He is not the agent or representative of either party to the action, but is uniformly regarded as an officer of the Court, exercising his functions in the interest of neither plaintiff nor defendant, but for the common benefit of all parties in interest. Being an officer of the Court, the fund or property entrusted to his care is regarded as being in ‘custodia legis’, for the benefit of who-ever may finally establish title thereto, the Court itself having the care of the property by its receiver, who is merely its creature or officer, having no powers other than these conferred upon him by the order of his appointment, or such as are derived from the established practice of Courts of equity.

The Code of Civil Procedure does not define the term “Receiver”. But it is generally understood as “A court appointed person who is appointed because the court thinks that neither party should be in possession of the property in dispute”.

Kerr defines a receiver as “an impartial person appointed by the Court to collect and receive, pending the proceedings, the rents, issues and profits of land, or personal estate, which it does not seem reasonable to the Court that cither party should collect or receive, or for enabling the same to be distributed among the persons entitled.”

Simply stated, wherever the Court is of the opinion that it would not be reasonable for either of the parties to hold the estate which is the subject matter of the suit, then, till it is disposed, the Court may appoint an independent and impartial third party who will take over such property. He will manage this property as a reasonable man would and is responsible for the maintenance of the property.

It is to be noted, that the receiver acts neither on behalf of the plaintiff nor the defendant but is an officer of the court who acts in general benefit of the property.

In Anthony C. Leo v. Nandlal Balakrishnan AIR 1996 SC 1323 the Apex Court described a receiver as an impartial/ neutral person. He is an agent of the Court. The property in the custody of the deceiver is custodio legis i.e., in the Custody of law or the court. The receiver has all powers as the real owner of the property, but he always acts under the supervision of the Court.

Case Laws:

The language of Order 39, Rule 1, C.P.C is wide enough to include an order in the form of a mandatory injunction upon an interlocutory application bu such a power however has to be exercised in very rare cases and with due care and caution.
(Suranna vs. Somulu, AIR 1969 AP 368)

The granting of temporary injunction being a discretionary relief, the conduct of the parties also always has been considered an important relevant factor in deciding whether temporary injunction is to be granted or not in the circumstances of particular case. (Johnson vs. Wyatt. 5 Beav 229 Gordon vs. Cheltenliam Railway, AIR 1996 Del. 1)

Where one of the coparceners attempts to waste the property by committing a wrongful act or makes use of the property in such a way which may amount to ouster, in such a case temporary injunction can be granted. (Anant vs. Balvant, (1985) ILR 19 Bom. 269)

When a suit which was dismissed for default is restored to file after setting aside the order of dismissal for default all the interlocutory orders made before dismissal of the suit are automatically restored. (Mutyalu vs. Rajyalaxmamma, AIR 1978 AP 316)

Conclusion:

The meaning of the word ‘Interlocutory application’ can be understood that an application to the court in any suit, appeal or proceeding already instituted in such court,other than a proceeding for execution of a decree or order. Section 141 of CPC
delas with miscellaneous proceedings. Every Interlocutory Application need not be tried as a suit under the guise of Sec. 141 CPC. Sec.94 CPC deals with Supplementary Proceedings. As has been discussed above, Chapter-V, Rule 60 of the Civil Rules of Practice makes it clear that the facts that are necessary for adjudication of the interlocutory applications are to be proved by affidavits. An interlocutory order is an order that does not finally determine the rights, duties and obligations of the parties to a proceeding. Interlocutory orders may take various shapes depending upon the requirement of the respective parties during the pendency of the suit.

Related Question:

What is an interlocutory application?

It is an application to ask the court to make certain orders. Court orders are commands by a judge, declaring something to be done or prohibiting something from being done. 

When should an interlocutory application be used?

You can use an interlocutory application, such as an interlocutory injunction, to help keep a case on track or to protect your rights. They stop parties from acting unethically, and parties often use them when one party believes the other has not complied with their court procedure obligations. 

What is an interlocutory hearing?

An interlocutory hearing is held if a party does not consent to the orders sought by an interlocutory application. The hearing allows for both sides to present their arguments so that the judge can make a decision.