How to File an Interlocutory Application in a Pending Civil Suit in India: Types, Format and Procedure Under CPC

Kaustav Chowdhury
Jul 21
6 min read

An interlocutory application (IA) is a procedural tool that allows a party to seek interim relief or specific orders from the court while a civil suit is still pending. These applications address urgent or ancillary issues that cannot wait until the final hearing. Whether a plaintiff needs to protect disputed property from being sold, or a defendant wants security for costs, interlocutory applications provide the mechanism for obtaining such orders. Understanding when and how to file one is essential for anyone involved in civil litigation in India.

What Is an Interlocutory Application and When Is It Filed

An interlocutory application is any application made to the court during the pendency of a suit or proceeding. It is not a separate suit but an ancillary proceeding within the main case. The purpose is to seek interim or incidental relief that the court can grant before the final adjudication of the dispute.

Common scenarios that require an interlocutory application include situations where disputed property is at risk of being wasted, damaged, or alienated; where a party needs documents or evidence from the opposing side before trial; where one party apprehends that the other may dispose of assets to frustrate a future decree; or where urgent relief is needed to preserve the status quo. These applications may be filed at any stage after the suit is instituted and before the final decree is passed. For a broader understanding of the civil litigation process, the guide on filing a civil suit in a district court provides a helpful starting point.

Types of Interlocutory Applications Under the CPC

The Code of Civil Procedure, 1908 provides for several categories of interlocutory applications, each governed by specific Orders and Rules.

Temporary Injunction (Order 39, Rules 1 and 2): This is the most frequently filed interlocutory application. A temporary injunction may be granted where the court is satisfied that any property in dispute is in danger of being wasted, damaged, or alienated by any party, or wrongfully sold in execution of a decree. The court applies a three-part test before granting a temporary injunction: the applicant must demonstrate a prima facie case, the balance of convenience must favour the applicant, and the applicant must show that irreparable injury would result if the injunction is not granted. Those seeking a deeper understanding of injunction remedies may refer to the guide on filing a suit for injunction in India.

Attachment Before Judgment (Order 38, Rule 5): Where the defendant is about to dispose of the whole or any part of property with the intention of obstructing or delaying execution of a future decree, the plaintiff may apply for attachment of such property before judgment. This is an extraordinary remedy, and the court exercises this power sparingly.

Appointment of Commissioner (Order 26): The court may, on application, issue a commission for examining witnesses, making local investigations, examining accounts, or conducting scientific investigations. This is frequently used in property disputes where a local inspection is necessary.

Appointment of Receiver (Order 40): Where property is in danger of deterioration or loss, the court may appoint a receiver to manage and preserve it during the pendency of the suit.

Application Under Section 151 CPC (Inherent Powers): Section 151 preserves the inherent power of the court to make orders necessary for the ends of justice or to prevent abuse of the process of the court. An application under Section 151 may be filed when no specific provision in the CPC covers the relief sought, but the relief is necessary for justice. However, Section 151 cannot be invoked where a specific remedy already exists under the CPC.

Format and Drafting Requirements for an Interlocutory Application

Every interlocutory application must follow a prescribed format. The application should contain the following elements: a proper title with the court name, suit number, and names of parties; the specific provision of law under which the application is filed (for example, Order 39 Rule 1 CPC); a clear statement of facts supporting the relief sought; the grounds on which the relief is claimed; the specific prayer or relief requested; and the applicant's verification and signature.

Most interlocutory applications must be supported by an affidavit. The affidavit should set out the facts on which the applicant relies, and all documentary evidence must be filed along with it. For applications under Order 39 (temporary injunctions), the affidavit is particularly important because the court may decide the application without oral evidence at the initial stage. If any statement in the affidavit is found to be false or misleading in a material particular, and the injunction was granted without notice to the other side, the court is required to vacate the injunction unless the interests of justice dictate otherwise.

Court fees for interlocutory applications vary by state. In many states, a fixed court fee (as opposed to ad valorem fees) is payable on IAs. The applicant should check the court fees schedule applicable in the relevant state and court. For guidance on fees in property cases, the resource on filing a property partition suit covers related procedural details.

Step-by-Step Procedure for Filing an Interlocutory Application

Step 1: Identify the correct provision. Determine which Order and Rule of the CPC governs the relief you are seeking. For a temporary injunction, it is Order 39. For attachment before judgment, it is Order 38 Rule 5. For relief not covered by any specific provision, Section 151 may be invoked.

Step 2: Draft the application and affidavit. Prepare the application in the prescribed format with a supporting affidavit. Attach all relevant documents, including the vakalatnama if one has not already been filed in the main suit.

Step 3: Pay the court fees. Purchase court fee stamps of the required denomination and affix them on the application. The fee amount depends on the state and the nature of the application.

Step 4: File the application. Present the application before the filing counter of the court where the main suit is pending. The application is numbered and linked to the main suit. Many courts now accept e-filing through the eFiling portal of the Indian judiciary.

Step 5: Serve notice on the opposite party. Unless the application is for ex parte relief (urgent cases where giving notice would defeat the purpose), the court will direct service of the application on the opposite party. The respondent is given an opportunity to file a reply.

Step 6: Hearing and order. The court hears arguments from both sides (or from the applicant alone in an ex parte hearing) and passes an order. In urgent injunction matters, the court may grant an ad interim order on the first date itself, subject to the opposite party being heard on the next date. Once an order is passed, obtaining a certified copy of the court order is advisable for enforcement and record-keeping.

Interim Injunction vs. Interlocutory Injunction: Understanding the Difference

These two terms are often used interchangeably, but they have distinct meanings in practice. An interim injunction (also called an ad interim or ex parte injunction) is granted without hearing the opposite party when the matter is extremely urgent and delay would cause irreparable harm. It is typically granted for a short duration, until the next date of hearing when the other side can respond. An interlocutory injunction, on the other hand, is granted after hearing both parties and remains in force until the final disposal of the suit. The interlocutory injunction is the more common remedy because it provides a considered order after both sides have been heard.

When a court grants an ex parte interim injunction, it must record reasons for doing so. If the party against whom the injunction is granted appears and shows cause, the court may modify, confirm, or vacate the interim order. In property-related suits, understanding the distinction between these two types of injunctions is critical. The guide on filing a suit for declaration of title discusses related remedies available in property disputes.

Key Takeaways

An interlocutory application is the procedural mechanism for seeking interim relief during the pendency of a civil suit, and it cannot be filed independently of the main proceeding. The most common types include applications for temporary injunctions under Order 39, attachment before judgment under Order 38 Rule 5, appointment of commissioners under Order 26, and applications under Section 151 CPC for relief not covered by specific provisions. Every application must be supported by an affidavit setting out the facts and attaching documentary evidence. For temporary injunctions, the three-pronged test of prima facie case, balance of convenience, and irreparable injury must be satisfied. An ex parte interim injunction is granted only in cases of extreme urgency without notice to the other side, while an interlocutory injunction is granted after hearing both parties and continues until the suit is decided. Court fees for IAs vary by state and are typically a fixed amount rather than ad valorem. Filing may be done physically or through the eFiling portal, and the application is linked to the main suit number.