Order XXXIX Rule 8 CPC: Notice Before Orders for Interim Sale, Preservation and Inspection
Order 39 Rule 8 of the Code of Civil Procedure, 1908 sets out when a plaintiff or defendant may request orders under Rules 6 and 7 and requires notice to the opposite party unless delay would defeat the purpose of the proposed order.
Text of Order XXXIX Rule 8 CPC
Application for such orders to be after notice.
(1) An application by the plaintiff for an order under rule 6 or rule 7 may be made at any time after institution of the suit.
(2) An application by the defendant for a like order may be made at any time after appearance.
(3) Before making an order under rule 6 or rule 7 on an application made for the purpose, the Court shall, except where it appears that the object of making such order would be defeated by the delay, direct notice thereof to be given to the opposite party.
Meaning and scope of Rule 8
This rule is a procedural safeguard for applications under Order XXXIX Rule 6 (interim sale of certain movable property) and Order XXXIX Rule 7 (detention, preservation, inspection and related measures concerning the subject matter of a suit). It does not itself authorize a new category of relief; it governs the timing of applications and the notice requirement for relief under those two rules.
Rule 8(1): Application by plaintiff
The plaintiff may seek a Rule 6 or Rule 7 order at any time after institution of the civil suit. The application should identify the relevant property, explain the necessity of the requested measure and supply supporting material.
Rule 8(2): Application by defendant
A defendant may make a corresponding application after appearing in the suit. The provision therefore permits either side, subject to its stated timing conditions, to seek preservation or inspection measures.
Rule 8(3): Notice to opposite party
The ordinary rule is that the court directs notice before passing an order under Rule 6 or Rule 7. The express exception applies where the court considers that waiting to give notice would defeat the object of the order. Urgency must be assessed in the circumstances of the particular case; an application does not automatically become ex parte merely because urgency is alleged.
How an application under Rule 8 is considered
A party ordinarily files an interlocutory application in the pending suit, specifies whether relief is sought under Rule 6 or Rule 7, identifies the property and explains why the order is necessary. Relevant documents, photographs, inventories or other supporting evidence may assist the court.
The court considers whether the substantive conditions of Rule 6 or Rule 7 are met and ordinarily provides the opposite party an opportunity to respond. If notice would frustrate the proposed measure, the court may consider proceeding without prior notice under the exception in Rule 8(3). The court may impose appropriate conditions, including measures for the property's protection and accountability.
For example, a request to sell perishable goods during litigation must be examined under Rule 6; a request to inspect a disputed site or obtain samples must be examined under Rule 7. Rule 8 determines when the parties may apply and whether advance notice is necessary.
Frequently asked questions
Does Order 39 Rule 8 apply to every temporary injunction?
No. Rule 8 specifically governs applications for orders under Order XXXIX Rules 6 and 7, not all injunction applications.
When can the plaintiff apply under Rule 8?
The plaintiff may apply at any time after the suit is instituted.
When can the defendant apply under Rule 8?
The defendant may apply at any time after appearance in the suit.
Can the court proceed without prior notice?
Yes, where the court considers that delay would defeat the object of the proposed order under Rule 6 or Rule 7.
Legal information is general in nature. Court-specific rules, local amendments and the facts of a particular suit may affect the procedure.