Interlocutory application

What is an interlocutory application?

An interlocutory application is a request made by one party to the court during the course of a legal proceeding, seeking an order to address a specific issue that arises during the litigation process, rather than the main dispute itself. These applications are designed to ensure the smooth and efficient conduct of the proceedings, protect the interests of the parties, and facilitate the resolution of the case. Because interlocutory applications are generally intended to support or facilitate the main proceedings, they do not determine the final outcome of the case. Instead, they help manage procedural steps and protect the rights of the parties as the case proceeds.

The concept is widely recognised and applied in various legal proceedings. Indian laws, such as the Code of Civil Procedure (CPC), the Code of Criminal Procedure (CrPC), and various other statutes, provide for various types of applications that can be categorised as interlocutory.  

For example, under the CPC, applications for interim injunctions, temporary injunctions, discovery and inspection of documents, and summary judgment can be considered interlocutory applications. These applications are designed to address specific issues that arise during the course of a legal proceeding and do not directly resolve the main dispute

Official definition of interlocutory application

Interlocutory application as defined under legislations

Though interlocutory application has not been specifically defined under the Civil Procedure Code, 1908 or the Criminal Procedure Code, 1973, there are several other legislation which have provisions that define the term.

Rule 2 (j) of the Andhra Pradesh Civil Rules of Practice and Circular Orders, 1990 defines an interlocutory application as “an application to the court in any suit, appeal or proceedings already instituted in such court, other than a proceeding for execution of a decree or order”.

A similar definition is provided in the Delhi High Court (Original Side) Rules, 2018 as “an application in any suit, appeal or proceeding, already instituted in the Original Side of the Court, not being a proceeding for execution of a decree or order”.

In the Karnataka amendment of Order XXXVII-A of  the Civil Procedure Code, 1908, an interlocutory application means “an application to the Court in any suit, appeal or proceeding already instituted in such Court other than an application for execution of a decree or order or for review to judgment or for leave to appeal.”

In the Karnataka Civil Rules of Practice, 1967, it is defined as “an application to the Court in any Suit, Appeal or Proceeding already instituted in such Court other than an application for execution of the decree or setting aside the decree or final order made in such Suit, Appeal or Proceeding, or an application for review of judgment and includes every application seeking an order by way of aid pending final adjudication of the matter arising in the Suit.”

The Supreme Court of India’s website lists 395 kinds of interlocutory applications. This includes interim injunction, condonation of delay in filing, rejoinder, appointment of the guardian of a minor, grant of maintenance, oral hearing etc. It also includes grant of bail, interim bail, anticipatory bail, application for issuing warrant, issue of bailable or non bailable warrant of arrest and so on.

Legal provisions relating to interlocutory applications

Provisions under the Civil Procedure Code, 1908

Section 75 of Part III the CPC deals with incidental proceedings or consequential orders that are “those which follow as a matter of course being necessary, complements in the main order without which the matter would be incomplete or in effective.” This provision gives the court the power to examine any person, make a local investigation, examine or adjust accounts, make partitions etc.

Section 94, Part VI of of the CPC deals with supplemental proceedings and lays down general powers of Courts regarding various kinds of interlocutory orders. This includes power to grant a temporary injunction, appoint receivers of a property, 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 etc.

Order XXIV deals with payment into court, enabling a party, often the defendant, to deposit a specified sum into the court. This may occur when a defendant admits liability or wishes to demonstrate good faith. This provision helps secure an admitted sum for the plaintiff, pending the final resolution of the matter.

Order XXV pertains to security for costs, empowering the court to direct a party, typically the plaintiff, to provide security for the costs that the defendant may incur. This is especially relevant when the plaintiff resides outside the court's jurisdiction, providing a safeguard for the defendant's legal costs in case the plaintiff is unsuccessful.

Order XXVI provides for the appointment of commissions, which allow the court to delegate certain tasks, such as local investigation, witness examination, or property inspection. When physical presence is impractical or when specific expertise is needed, commissions help ensure that evidence is accurately gathered, benefiting the proceedings.

Order XXXVIII includes provisions for arrest before judgment, permitting the court to order the arrest of a defendant when there is a reasonable belief they may evade jurisdiction to avoid judgment. This measure ensures that the defendant remains accountable and available for proceedings, protecting the plaintiff’s interests.

Order XXXVIII also addresses attachment before judgment, which allows the court to attach a defendant's property if there is concern that the property may be disposed of or hidden to avoid satisfying a judgment. Attachment ensures that assets remain available to enforce the court’s final decision.

Order XXXIX pertains to temporary injunctions and interlocutory orders. Under this Order, courts may grant temporary injunctions to prevent parties from engaging in actions that could harm the plaintiff's interests or alter the status quo. Order XXXIX, Rule 6 gives the court the power to order the interim sale of perishable movable property in dispute, preventing loss in value. Rule 7 allows for the detention, preservation, or inspection of property, including necessary observations or experiments. Rule 8 specifies that orders under Rules 6 and 7 are only to be granted if the application is made after the suit’s initiation, with notice given to the opposing party. Rule 9 addresses situations where the property is revenue-paying land, allowing for its sale if revenue or rent remains unpaid. Rule 10 permits the court to require that money or other items capable of delivery be deposited with the court if there is a dispute over ownership or trusteeship.

Order XL deals with the appointment of a receiver, authorizing the court to appoint a neutral party to manage or preserve disputed property. The receiver ensures that property subject to litigation remains intact and generates income, if applicable, while the case is ongoing.

Provisions under Criminal Procedure Code, 1973

Section 397(1) of the CrPC deals with the powers of revision conferred on High Court and Sessions Court judges. Section 397(2) creates an exception to this power by providing that The powers of revision conferred by sub- Section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. In this context, an interlocutory order is understood as “…orders of a purely interim or temporary nature which does not decide or touches the important rights of the liabilities of the parties. Any order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision.” 

Appearance of interlocutory application in databases

Treatment of interlocutory applications as case types varies across High Courts. An examination of the case types available on the case status search on high court websites and the e-courts website show that only a few high courts, namely, Bombay,Gauhati, Kerala, Manipur, Meghalaya, Orissa, Rajasthan and Uttarakand provide interlocutory applications as an option. In Bombay and Kerala, the nomenclature used is ‘interim application’. The Gauhati High Court specifies three categories of IA: interlocutory application, interlocutory application (civil) and interlocutory application (criminal). It is also the only high court that specifically provides for IAs in criminal matters.

The other high courts do not include IAs as a category.

E-courts

Gauhati High Court’s E-courts case status page shows Interlocutory Application as a case type.

Research that engages with interlocutory applications

1. Devendra Damle and Tushar Anand in ‘Problem with E-courts data’, NIPFP Working Paper (2020)' discuss how treatment of Interlocutory and Interim Applications, Injunction Petitions, Execution Petitions, and other motions and applications under the CPC during the course of litigation differ from state to state. The article observes that "Some states treat these as cases in themselves. Some record what is known as the main matter and file it under the substantive law, and the procedural matters as linked matters, tagged under the CPC. Some states tag the procedural matters under both the substantive and procedural law. Moreover, some, like Tamil Nadu and Karnataka, do not tag certain cases with the substantive law at all."