The vide decision of the High Court of Calcutta , make clear in detail the difference in the type of reparation between the temporary injunction according to Rule 1 of the order XXXIX and attachment before judgment according to Rule 5 of the order XXXVIII of the CPC,1908. Judge Moushumi Bhattacharya located that the whilst each provisions goal to shield the petitioner via way of means of retaining the disputed belongings, their applicability differs in terms of the character of belongings and the level of lawsuits in question.
The court held that temporary injunction under order XXXIX Rule 1 is granted to the petitioner with inside the occasion that an impending threat to the belongings in dispute with inside the healthy is as a result of the acts of the respondent. As a bring about a bid to keep the disputed belongings, the court can by skip any order because it deems healthy with inside the nature of a transient injunction.
While Rule 5 of order XXXVIII only applies at a later stage in a litigation when the petitioner is trying to enforce a decree, this section only applies to orders that are intended to give finality to the litigation and to preserve the status of things after the intermediate phase is on the way completed.
This question of clarification was raised in the case, where at the request of the respondent, the petitioner paid out a loan of 7.5 million rupees to the respondent at an agreed interest rate of 15% per year. As a result, the respondent refused to admit that guilt in its entirety, which led to the present dispute. As a result, the petitioner asked for redress in the form of an interim court order or a temporary injunction.
Therefore, the court dominated that the redress under order XXXVIII, Rule 5 is no long be relevant at this stage of the proceedings, as the petitioner is only protecting his unsuccessful monetary assert against the respondent and not orderings confiscation of the respondent property.
The court found that the petitioner had recognized a ‘prima facie’ case and that, without interference, the petitioner would suffer ‘irreplaceable harm’ and issued a temporary interjection in good turn of the petitioner.