Code of Civil Procedure, 1908 (CPC)
Supplemental Proceedings: Sections 94 and 95 CPC
A suit takes time, and a defendant determined to defeat it can use that time: he can leave the country, sell his property, waste the subject matter, or simply take what is in dispute. Section 94 of the Code of Civil Procedure, 1908 gives the court four powers to prevent that, in order to prevent the ends of justice from being defeated: arrest before judgment, attachment before judgment, temporary injunction and the appointment of a receiver. Section 95 supplies the counterweight, compensating a defendant against whom these powers were invoked on insufficient grounds. These notes cover both.
The four supplemental reliefs, the triple test for an injunction, and compensation under Section 95
1. Section 94: The Four Powers
§ Section 94, CPC 1908 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. |
§ Three features of the section Each shapes how the powers are exercised: • The object governs the power. The opening words, in order to prevent the ends of justice from being defeated, are not decoration. These reliefs exist to protect the eventual decree, not to give the plaintiff an advantage in the meantime, and an application that does not serve that object fails however technically it is framed. • If it is so prescribed. Section 94 is an enabling provision; the conditions and procedure are in the Orders, XXXVIII for arrest and attachment, XXXIX for injunctions, XL for receivers. The section confers no power that the relevant Order does not work out. • Clause (e) is residuary. Such other interlocutory orders as appear just and convenient covers what the four specific clauses do not, and works alongside the inherent power in Section 151. |
2. The Four Reliefs in Outline
Relief | Order and rules | The ground | Against what risk |
|---|---|---|---|
Arrest before judgment | Order XXXVIII Rules 1 to 4 | The defendant is about to abscond or leave the local limits of the jurisdiction with intent to delay or obstruct execution | That the person against whom a decree may be passed will not be available |
Attachment before judgment | Order XXXVIII Rules 5 to 13 | The defendant is about to dispose of or remove his property with intent to obstruct or delay the execution of any decree | That there will be nothing left to execute against |
Temporary injunction | Order XXXIX Rules 1 and 2 | Property in dispute is in danger of being wasted, damaged or alienated; or the defendant threatens to dispossess the plaintiff or otherwise injure him | That the subject matter itself will be destroyed or transferred |
Receiver | Order XL | It appears to the court to be just and convenient | That property needing management will be dissipated while the suit runs |
§ Why these are called supplemental They are not the relief claimed in the suit. A plaintiff does not sue for an attachment or a receiver; he sues for money, possession or a declaration. They are ancillary: their whole purpose is to keep the position intact so that the decree, when it comes, is worth having. That is why they are grouped in Part VI of the Code under the heading Supplemental Proceedings. It follows that they are temporary, lasting only until the suit is decided or the court orders otherwise, and that they are discretionary, granted on the court's assessment of the risk rather than as of right. |
3. Section 95: Compensation for a Wrongful Order
§ Section 95, CPC 1908 (in substance) (1) Where, in any suit in which an arrest or attachment has been effected or a temporary injunction granted under the last preceding section — (a) it appears to the Court that such arrest, attachment or injunction was applied for on insufficient grounds, or (b) the suit of the plaintiff fails and it appears to the Court that there was no reasonable or probable ground for instituting it, the defendant may apply to the Court, and the Court may, upon such application, award against the plaintiff by its order such amount, not exceeding fifty thousand rupees, as it deems a reasonable compensation to the defendant for the expense or injury, including injury to reputation, caused to him. (2) An order determining any such application shall bar any suit for compensation in respect of such arrest, attachment or injunction. |
§ Four points on Section 95 Each is examinable: • Two independent grounds. Either the order was applied for on insufficient grounds, or the suit fails and there was no reasonable or probable ground for instituting it. The first looks at the interim application, the second at the suit as a whole. • The ceiling. Compensation may not exceed fifty thousand rupees, the figure raised by the Amendment Act of 1999 from the earlier one thousand. • What is compensated. The expense or injury caused, and the section expressly includes injury to reputation, which matters where the defendant was arrested or his property publicly attached. • The order bars a suit. By sub-section (2), an order determining such an application bars any suit for compensation in respect of the same arrest, attachment or injunction. The remedy is therefore in the suit itself, and it is exhaustive. |
The section is the Code's recognition that these powers are intrusive. An attachment before judgment freezes a man's property before anything has been decided against him; an arrest before judgment deprives him of his liberty on the strength of an allegation. The Code allows them because the alternative, a decree against a defendant who has vanished or sold everything, is worse. But it makes the applicant answerable in damages where the ground turns out to have been insufficient, and it requires, in Order XXXVIII and Order XXXIX, security from the plaintiff in many cases, so that the compensation can be realised.
4. The Discipline Common to All Four
i. Material, not assertion. Every one of these reliefs requires the applicant to place material before the court. An affidavit repeating the language of the rule does not satisfy it: the court must be shown facts from which the intent or the danger can be inferred.
ii. Reasons must be recorded. Order XXXVIII Rule 5 requires the court to call on the defendant to furnish security or show cause; Order XXXIX Rule 3 requires reasons to be recorded for granting an injunction ex parte. Each provision insists that the court explain itself.
iii. The defendant is heard, or heard soon. The ordinary rule is notice before the order. Where the urgency requires an order first, Order XXXIX Rule 3 requires the applicant to serve the papers immediately and Rule 3A requires the application to be disposed of within thirty days.
iv. Security from the applicant. The court commonly requires the plaintiff to furnish security or an undertaking in damages, which is what makes the compensation under Section 95 realisable.
v. These are not substantive reliefs. An order under Section 94 decides nothing about the merits, and cannot be used to obtain in advance what the suit itself claims.
5. Landmark Points
- Section 94. Four powers, to be exercised in order to prevent the ends of justice from being defeated: arrest before judgment, attachment before judgment, temporary injunction, and the appointment of a receiver, with a residuary power to make just and convenient interlocutory orders.
- The words if it is so prescribed. Section 94 is enabling; the conditions and procedure are in Orders XXXVIII, XXXIX and XL.
- Section 95(1). Compensation up to fifty thousand rupees where the order was applied for on insufficient grounds, or where the suit fails and there was no reasonable or probable ground for instituting it.
- Section 95(2). An order on such an application bars any suit for compensation in respect of the same arrest, attachment or injunction.
- Section 151. The inherent power supplements clause (e) where no specific provision fits but the ends of justice require an order.
6. Frequently Asked Questions
What does Section 94 of the CPC provide?
That in order to prevent the ends of justice from being defeated, the court may, if it is so prescribed, issue a warrant to arrest the defendant and require security for his appearance, direct him to furnish security to produce property or order its attachment, grant a temporary injunction, appoint a receiver, and make such other interlocutory orders as appear just and convenient.
Why are these called supplemental proceedings?
Because they are not the relief claimed in the suit. They are ancillary orders whose purpose is to hold the position so that the eventual decree is worth having, which is why they are temporary, discretionary, and grouped in Part VI of the Code under that heading.
Does Section 94 itself confer the power?
It is an enabling provision, and the words if it is so prescribed refer the conditions and procedure to the Orders: Order XXXVIII for arrest and attachment before judgment, Order XXXIX for temporary injunctions, and Order XL for receivers.
When can a defendant claim compensation under Section 95?
Where an arrest or attachment has been effected or a temporary injunction granted, and either the order was applied for on insufficient grounds, or the plaintiff's suit fails and the court finds there was no reasonable or probable ground for instituting it.
How much compensation can be awarded under Section 95?
Such amount as the court deems reasonable, not exceeding fifty thousand rupees, for the expense or injury caused to the defendant, including injury to his reputation. The ceiling was raised to that figure by the Amendment Act of 1999.
Can a separate suit be filed for such compensation?
No. Section 95(2) provides that an order determining an application under the section bars any suit for compensation in respect of the same arrest, attachment or injunction, so the remedy lies in the suit itself and is exhaustive.
7. Related Topics in This CPC Series
- Order XXXVIII: Arrest and Attachment Before Judgment
- Order XXXIX: Temporary Injunctions and Interlocutory Orders
- Modes of Execution under Section 51
- Attachment in Execution: Sections 60 to 64 and Order XXI