Whether S 10 of CPC relating to stay of suit bars the court to entertain subsequent suit and to pass interlocutory orders in that suit?

By virtue of Section 10 Code of Civil Procedure, a Court is prohibited from proceeding with trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit, of course, subject to other conditions mentioned therein. This Court has explained that the object of the prohibition contained in Section 10 Code of Civil Procedure is to prevent the Courts of concurrent jurisdiction from simultaneously trying two parallel suits and to avoid inconsistent findings. However, this Rule of procedure is held not affecting the jurisdiction of the Court to entertain and deal with the latter suit and does not create a bar to the institution of the suit. The Courts have also consistently held that Section 10 Code of Civil Procedure does not create a bar to the passing of interlocutory orders including those of injunction. These principles are succinctly summarised by this Court in the case of Indian Bank v. Maharashtra State Cooperative Marketing Federation Ltd. MANU/SC/0350/1998 : (1998) 5 SCC 69. Therein, this Court was, of course, considering the applicability of bar Under Section 10 to summary suit Under Order XXXVII of Code of Civil Procedure but, while explaining the connotation of the expression "trial" in Section 10 Code of Civil Procedure, observed as under: {Para 17}

8. Therefore, the word "trial" in Section 10 will have to be interpreted and construed keeping in mind the object and nature of that provision and the prohibition to "proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit". The object of the prohibition contained in Section 10 is to prevent the courts of concurrent jurisdiction from simultaneously trying two parallel suits and also to avoid inconsistent findings on the matters in issue. The provision is in the nature of a Rule of procedure and does not affect the jurisdiction of the court to entertain and deal with the latter suit nor does it create any substantive right in the matters. It is not a bar to the institution of a suit. It has been construed by the courts as not a bar to the passing of interlocutory orders such as an order for consolidation of the latter suit with the earlier suit, or appointment of a receiver or an injunction or attachment before judgment. The course of action which the court has to follow according to Section 10 is not to proceed with the "trial" of the suit but that does not mean that it cannot deal with the subsequent suit any more or for any other purpose. In view of the object and nature of the provision and the fairly settled legal position with respect to passing of interlocutory orders it has to be stated that the word "trial" in Section 10 is not used in its widest sense.

18. The above principles of law, with necessary variations, when applied to the present case, lead to the position that even if final determination of the question of maintainability (in case the constitutional validity of the impugned provision is to be decided) may depend upon the decision of Larger Bench, the supplemental proceedings in the present suit, particularly those relating to the prayer of interim relief, cannot be put on hold.

IN THE SUPREME COURT OF INDIA

Original Suit No. 1 of 2021

Decided On: 11.05.2023

State of Meghalaya Vs. Union of India (UOI) and Ors.

Hon'ble Judges/Coram:

Dinesh Maheshwari and P.V. Sanjay Kumar, JJ.

Citation:  MANU/SC/0559/2023.

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Whether court receiver can exercise power not delegated to him?

 The Receiver is an Officer of Court and whatever powers he exercises are delegated powers of the Court which the Court expressly gives him. He has no powers except what the Court grants him. Unless the appellant can show us that in this case the Court has delegated its power of entering into a completed contract with third parties to the Receiver, any action taken by the Receiver cannot be binding upon the Court or upon the properties. 

IN THE HIGH COURT OF MADRAS

Decided On: 27.03.1924

Ratnasami Pillai Vs.  Sabapathy Pillai and Ors.

Citation: AIR 1925 Mad 318

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Whether arbitral Tribunal can enforce its own order by appointing Advocate Commissioner/Receiver?

 To sum up the discussions as above, it has to be declared


that the Arbitral Tribunal cannot pass an order to enforce its order by



directing the Advocate Commissioner/Receiver to repossess the


vehicle from the opposite party. It is made clear that the Advocate


Commissioner or Receiver as the case may be, can be appointed for


any other purpose, but not to enforce an order of repossession


passed by the Tribunal.    Any order of repossession can only be


enforced through a civil court.

The repossession of the vehicles by enforcing the order of


the Arbitral Tribunal without the intervention of the civil court,


therefore, has to be treated as violation of Article 21 of the


Constitution of India.   
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT:

        THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

  WEDNESDAY, THE 16TH DAY OF MARCH 2016.
                 WP(C).No. 38725 of 2015 (M)
               
               PRADEEP K.N.
              Vs

            THE STATION HOUSE OFFICER,
              

                  A.MUHAMED MUSTAQUE, J.
                ~~~~~~~~~~~~~~~~~~~~~~~~~
                        W.P.(C).Nos.
                      38725/2015   7932/2016
                    

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Bombay HC: Basic principles for appointment of Court Receiver

Order 40, Rule 1 of Code of Civil Procedure provides for appointment of Receiver, where it appears to the Court to be just and convenient. The power can be exercised both before and after decree. The power conferred upon the Receiver enables the Receiver to manage, protect and preserve the property and to collect the rents and profits thereof and for realisation of profits. The principles to be borne in mind while exercising powers under Order 40, Rule 1 of the Code of Civil Procedure are well-settled by catena of decisions and as observed by Privy Council in AIR 1928 PC49, Benoy Krishna Mukerjee v. Satish Chandra Giri, the Court has to consider whether special interference with the possession of the defendant was required, there being a well-founded fear that the property in question will be dissipated or that other irreparable mischief may be done unless the Court gives its protection. A single Judge of the Madras High Court in a decision T. Krishnaswamy Chetty v. C. Thangavelu Chetty, set out five factors which the Court must consider before concluding that it is just and convenient to appoint Receiver. The five factors are :

(i) The appointment of the Court Receiver was a matter resting in the discretion of the Court,

(ii) The appointment should not be made unless plaintiff had prima facie excellent chance of succeeding in the suit,

(iii) The plaintiff establishes some emergency or danger or loss demanding immediate action,

(iv) The order would not be made if it had the effect of depriving the defendants of a 'de facto' possession, and

(v) The Court will look to the conduct of the party who made the application and would refuse to interfere if the conduct is not free from blame.1

Bombay High Court

State Bank Of India vs Trade Aid Paper And Allied ... on 25 April, 1995

Equivalent citations: AIR 1995 Bom 268, 1995 (4) BomCR 278, (1995) 97 BOMLR 577

Bench: M Pendse, A Savant, S Kapadia

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