ASSIGNMENT

OF
CODE OF CIVIL PROCEDURE – II

TOPIC: - INTERPLEADER SUIT

(2018-2023)

SUBMITTED BY SUBMITTED TO
AMAN KUMAR Dr. VIVEK KUMAR
18FLICDDNO2020 ICFAI LAW SCHOOL
BA LLB ‘A’ DEHRADUN

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 ACKNOWLEDGEMENT

I would like to thank DR. VIVEK KUMAR whose guidance helped me a lot with
structuring my project. I owe the present accomplishment of my project to my friends, who
helped me immensely with materials throughout the project and without whom I couldn’t
have completed it in the present way.
I would also like to extend my gratitude to my parents and all those unseen hands who
helped me out at every stage of my project.

Thank you,
AMAN KUMAR
18FLICDDN02020

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 Contents

ACKNOWLEDGEMENT 2
INTRODUCTION: 3
1. CONCEPT OF SUIT 4
1.1 Meaning and essential of suit under Code Of Civil Procedure,1808 5
1.2. Institution of Suit: the Provisions under the Civil Procedure Code, 1908: 7
2. Principles governing for filing of Interpleader suit - Analysis of relevant provisions 8
2.1. Framing of general or ordinary suit (as amended in 1999) 8
2.1 Principles governing framing of interpleader suit 10
CONCLUSION AND SUGGESTIONS 12
BIBLIOGRAPHY 13

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 INTRODUCTION:

An interpleader suit is one in which the real controversy/dispute is not between the plaintiff
and the defendant, but is rather between the defendants only, who inter-plead against each
other. The hallmark of an interpleader suit is the fact that, in an interpleader suit, the
plaintiff is not really interested in the subject-matter of the suit. The primary and the
foremost object of an interpleader suit are to have the claims of rival defendants
adjudicated, for, in an interpleader suit, there must be some debt, or, some money, or, other
property in dispute between the defendants only. The plaintiff in an interpleader suit must
be in a position of impartiality/ non-arbitrariness.

The Halsbury’s Laws of England: The Halsbury’s Laws of England (Fourth Edition),
Volume 37, Para 264 (at p.200) states that, “Where a person is under liability in respect of
a debt or in respect of any money, goods or chattels and he is, or expects to be sued for or
in respect of the debt or money or those goods or chattels, by two or more persons making
adverse claims thereto, he may apply to the court for relief by way of interpleader”.

Section 88 of the Code of Civil Procedure, 1908: Section 88 of the Code of Civil
Procedure, 1908, states that, where two or more persons claim adversely to one another
some debt, sum of money or other property (moveable or immoveable) from another
person, who in fact does not claim any interest in that sum of money or property except the
cost or charges incurred by him in instituting an interpleader suit and/or safeguarding the
property and is ready and willing to pay or deliver the sum of money or property to the
rightful claimant, then, such another person can file an interpleader suit. The pre-condition
for filing an interpleader suit is that- on the date of institution of an interpleader suit there
must be no suit pending in which the rights of the rival claimants can be properly decided.

In the case of, Asan v. Saroda1 , it was held that, where defendants do not claim adversely
to each other, nor does the plaintiff admit the title of one of the defendant or is willing to
pay or deliver the property to him, the suit is not interpleader.

1 AIR 1922 Cal 138

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 1. CONCEPT OF SUIT

The basic aim of a legal system of a country is to impose duty to respect the legal rights
conferred upon the members of the society. The person making a breach of that duty is said
to have done the wrongful act. On the basis of nature and gravity of such wrongful acts,
those are separated under two categories: Public Wrong and Private Wrong. Public wrong
is deemed to be committed against the society and the Private wrong, against individuals.
The gravity of the former is greater than that of the latter. The first category is termed
under the Law as ‘crime’ governed by the Criminal Laws (Substantive and Procedural) and
the second category, as ‘civil wrong’ governed by the Civil Laws. Under the Criminal Law
the action is taken by the state in its name and the accused has to pay fine to the State’s
fund and is punished by imprisonment or sentenced to death and in such cases the
proceeding is started either by lodging the FIR or by lodging complaints as provided by
the Criminal Procedure Code, 1973. In case of civil wrong, the remedy is the compensation
either liquidated or unliquidated damages; the remedial measures ensured to the people is
based on the Latin maxims damnum sine injuria (damage without injury), injuria sine
damnum (injury without damage) and ubi jus ibi remedium. According to the first two
maxims if the legal right of a person is violated he will get the remedy, even in case where
no actual damage is caused to him; but where he has no legal right, then if any actual
damage is caused to him, he cannot be entitled to get the remedy. The ubi jus, ibi idem
remedium (where there is a right there is a remedy), speaks of the remedial measure
available in the formerly mentioned cases. Such remedial measures are enforced through
the institution of suit. The Code of Civil Procedure, 1908 is the procedural or the adjective
law of India in civil matters. Sections 26 and Sections 35-35B read with Orders I (Parties
to the Suit), II (Framing of the Suit), IV (Institution of the Suit), VI (Pleadings) and VII
(Plaint) provide the procedural principles and rules regarding institution of suits.

The word ‘suit’ has wider application. There is a little difference between the suits under
the CPC 1908 and the other civil suits. This is under the CPC the suits is instituted by the

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presentation of the plaint which has particular format and in other suits like the suit for
divorce, the same is instituted by mere presentation of the petition by or on behalf of either
spouse. It should be mentioned that ‘suit’ is different from the ‘writs’. Suit is instituted to
enforce the legal rights (not the political and religious) only; but the ‘writs’ are concerned
with the enforcement of the Fundamental Rights guaranteed by Part III of the Indian
Constitution. Only the High Courts and the Supreme Court have the Writ jurisdiction
governed by the Indian Constitution

1.1 Meaning and essential of suit under Code Of Civil Procedure,1808

The term suit has not been defined under CPC, but on the basis of various decision it can
be said that “ Suit ordinarily means a civil proceeding instituted by the presentation of a
plaint”. Civil suit is the institution of the litigation for the enforcement of civil right or
substantive right , it may be against state or against individual. A suit results in decree
without suit there can not be decree.
According to Chamber’s 20th Century Dictionary (1983), it is a generic term of
comprehensive signification referring to any proceeding by one person or persons against
another or others in a court of law wherein the plaintiff pursues the remedy which the law
affords him for the redress of any injury or enforcement of a right, whether at law or in
equity.
In the Black’s Law Dictionary (7th Edition) this term is defined as the proceeding initiated
by a party or parties against another in the court of law. According to some other views,
‘suit’ includes appellate proceeding also; but it does not include an execution proceeding.
Ordinarily, suit under the CPC is a civil proceeding instituted by the presentation of a
plaint

There are four essential of suit

1. Opposing parties, i.e., parties to the suit; Order 1of CPC

In a civil suit, the presence of both the plaintiff, who files the suit, and the defendant, who
is sued, is necessary. In each case there are two categories; first one is the necessary party
and the other is proper party. A necessary party is one whose presence is indispensable to
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the constitution of the suit, against whom the relief is sought and without whom no
effective order can be passed. A proper party is one in whose absence an effective order
can be passed, but whose presence is necessary for a complete and final decision on the
question involved in the proceeding.

Where the number of plaintiff/defendant is one, no dispute arises regarding their

representation; but some uniform rules become mandatory if this number crosses this limit.
Order 1 contains these rules

2. Subject-matter in dispute

Subject-matter’ means the bundle of facts which have to be proved in order to entitle the
plaintiff to the relief claimed by him. This term includes the course of action. According to
sub-rules (4) and (5) of Rule 1, where the court is satisfied (a) that a suit must fail by
reason of some formal defect, or (b) that there are sufficient grounds for allowing the
plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim, it may, on
such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such
part of the claim with liberty to institute a fresh suit in respect of the subject matter of such
suit or such part of the claim. Where the plaintiff (a) abandons any suit or part of claim
under sub-rule (1), or (b) withdraws from a suit or part of a claim without the permission
referred to in sub-rule (3), he shall be liable for such costs as the court may award and shall
be precluded from instituting any fresh suit in respect of such subject matter or such part of
the claim.

Examples: a) Where the suit is instituted for the recovery of immovable property with or
without rent, the subject-matter is that immovable property.

b) Where the suit is instituted for the compensation for wrong done to one movable
property, the subject-matter is that movable property.

More specifically on the basis of the subject-matter the jurisdiction of a Court is

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determined in some cases. For example, a Presidency Small Causes Court has no
jurisdiction to try suits for specific performance of a contract, partition of immovable
property, foreclosure or redemption of a mortgage etc. Similarly, in respect of testamentary
matters, divorce cases, probate proceedings, insolvency proceedings etc. only the District
Judge or Civil Judge (Senior Division) has jurisdiction.

3. Cause of action Order 2, Rules 3, 6 and 7:

Cause of action may be defined as ‘a bundle of essential facts, which is necessary for the
plaintiff to prove before he can succeed.’ A cause of action is the foundation of a suit. It
must be antecedent to the institution of a suit and on the basis of it the suit must have been
filed. Every fact constituting the cause of action should be set out in clear terms. A cause of
action must include some act done by the defendant since in the absence of such an act no
cause of action can possibly accrue. If a plaint does not disclose a cause of action, the
Court will reject that plaint.

4. Relief Order II, Rules 1-2, 4-5:

Relief is the legal remedy for wrong. According to Rule 1 of Order 2 every suit shall as far
as practicable be framed so as to afford ground for final decision upon the subjects in
dispute and to prevent further litigation concerning them.

1.2. Institution of Suit: the Provisions under the Civil Procedure Code, 1908:

Section 26(1), CPC says that every suit shall be instituted by the presentation of a plaint or
in such other manner as may be prescribed. Sub-section (2) provides that in every plaint,
facts shall be proved by affidavit. The procedural framework relating to the institution of a
suit is give below:
i. Preparing the plaint
ii. Choosing the proper place of suing
iii. Presentation of the plaint

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 2. Principles governing for filing of Interpleader suit - Analysis of
relevant provisions

Not every suit which is civil in nature follows the same course of trial and proceeding. A
few civil cases do not follow the regular course and are comparatively different in nature in
terms of the parties and their involvement in the suit. One such kind of suit is the
interpleader suit. Interpleader suits are very different from the ordinary suits that are filed
before the Hon’ble Court between two parties, the plaintiff and the defendant. The dispute
in such suits is instead between two defendants who fight for a claim over a particular
good, debt, or chattel. The plaintiffs in such suits usually do not have any real interest in
the subject matter of the suit and institute the suit to only make sure that the property in
dispute is put in the custody of the actual owner.

For an interpleader suit to be filed there must be a property or a sum of money that is in
dispute over ownership and possession. The person currently in possession should not
claim any right over the property in dispute and should rather be ready to deliver it to the
respective owner once decided by the court. Section 88 and Order 35 are related to the
Interpleader Suits. Section 88 defines it and Order 35 gives the description of procedural
formalities.

2.1. Framing of general or ordinary suit (as amended in 1999)

Before discussing the general principle governing for filling or framing of interpleader suit
it is important to understand the rule pertaining to framing of general suit.
i) Order 2, Rules 1 to 7 C.P.C. have provided for "Frame of suit".
The rule is : every suit should be framed so as to afford ground for final
decision on the subjects in dispute
The objective is to prevent further litigation. Hence, as far as possible the
framing should be complete by itself.

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 e.g. In a partition suit, the plaint should be so framed as to disclose the whole
partible property.[all properties to be partitioned]
ii) The plaintiff should include the whole of his claim, to which he is entitled as
regards cause of action. He may relinquish a part of his claim, but in this case
he is estopped from claiming it (Rule 2).
Where various reliefs are available in respect of the same cause of action he
may claim for a few. If he has omitted a relief, he cannot claim, except with the
permission of the court.

iii.) Joinder of causes of action : Rule 3

a) Plaintiff may unite several causes of action against the same defendant or
defendants jointly.
b)Further, if plaintiffs are jointly interested in the cause of action, they may sue
jointly.

iv) For recovery of immovable property

The plaintiff may include with the leave of the court:
i) mesne profits or arrears of rent
ii) damages for breach of contract
iii) claims on the same cause of action.

Exception : In a suit for foreclosure or redemption the party may claim

possession of mortgaged property

iv) Rule 7 : All objections for misjoinder of causes of action should be

taken by the defendant at the earliest time. Otherwise it is deemed to be
waiver.

Procedure: O.IV R 1 : The plaint should be filed to the Court with a duplicate copy.
If duly instituted, a summon is issued to the defendant to appear and answer the claim. He
should file the written statement of his defence, if any, within thirty days from the day of
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institution of the suit as may be specified therein: But no summon is issued if defendant
was present at the time of filing of suit and admits the claims.
If the defendant fails to file his written statement within the 30 days, the Court in its
discretion may allow to file his W S on a day not later than 30 days from date of service of
summons to him

2.2 Principles governing framing of interpleader suit

● Plaint in an Interpleader Suit: Order XXXV, Rule 1 of the Code of Civil Procedure,
1908 require the interpleader to state in his plaint that, the plaintiff claims no interest in
the subjectmatter of suit and the claims put forth by the defendants severally. The
interpleader must also categorically state that, there is no collusion between the parties
to the suit, that is, the plaintiff and any of the defendants. The interpleader must specify
in the plaint, the claims made by the defendants severally, and should express his
willingness to bring the property (if it is moveable) before the court. The interpleader in
the prayer clause of his plaint must pray the Hon’ble Court to grant him the cost
incurred by him in instituting the suit and also, any other charges incurred by the
interpleader in maintaining and/or safeguarding the property in dispute, which the
defendants claim adversely to one another.
● Payment of the thing claimed into Court: Order XXXV, Rule 2 of the Code of Civil
Procedure, 1908, provides that where a thing claimed is such that, it is capable of being
paid into the court, then, the plaintiff/interpleader may be required to pay such amount
or thing before the court. Thus, the court has discretion to make such orders as regards
the subject matter in dispute and the party concerned will be bound to obey the order
before it can ask for any relief in the suit.2
● Procedure where Defendant is suing the Plaintiff: Order XXXV, Rule 3 of the Code
of Civil Procedure, 1908 states that, where any of the defendants in an interpleader suit
is actually suing the plaintiff in respect of the subject-matter of such suit, the court in
which the suit against the plaintiff is pending, on being informed by the court in which
the interpleader suit is pending, shall stay the proceedings in that suit as against him. 3 In
2 See: Syed Shamshul Haque v. Sitaram Singh & Ors, AIR 1978 Pat. 151
3 See: Sir Dinshaw Fardunji Mulla, The Key to Indian Practice, Lexis Nexis, 11th Edition, p.217
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 the case of, Satyanarain v. District Judge, Tonk & Ors4 , it was held that, it is not as if
that once the suit for interpleader is filed, the other civil suit has to be stayed
automatically; in order to invoke the power under Order XXXV, Rule 3 of the Code of
Civil Procedure, 1908, the plaintiff (or interpleader) is duty bound to establish a prima
facie case in his favour.4
● Procedure at First Hearing: Order XXXV, Rule 4 of the Code of Civil Procedure,
1908 empowers the court to declare at the first hearing itself, that the plaintiff is
discharged from all liabilities and as a necessary corollary the court can award the
plaintiff his costs and dismiss him from the suit. However, if the court is of the opinion
that justice, propriety and convenience requires that all parties to the suit be retained,
then, the court shall not discharge the plaintiff till the final disposal of the suit. If the
court finds it necessary, then, it can direct that certain other issues be framed and tried
along with other issues albeit the suit, and that any claimant (that is, defendant in the
interpleader suit) be made a plaintiff in lieu of or in addition to the original plaintiff.
● Who cannot file Interpleader Suit? : Order XXXV, Rule 5 of the Code of Civil
Procedure, 1908 states that, an agent cannot sue his principal, and similarly, a tenant
cannot sue his landlord for the purpose of compelling such principals/landlords to
interplead with persons other than the ones claiming through them.5 In the case of,
N.M.N. Duraiswami Chettiar v. Dindigul Urban Co-operative Bank Ltd 6 , it was held
that, on a dispute as to the ownership of the deposit arising between the customers and
the third person, an interpleader suit filed by the bank, would not come within the
prohibition of Order XXXV, Rule 5 of the Code of Civil Procedure, 1908.
● Charge for Plaintiff’s Costs: Order XXXV, Rule 6 of the Code of Civil Procedure,
1908 states that, when an interpleader suit is properly instituted, then, the court can
provide for the costs to be given to the original plaintiff either by giving him a charge on
the thing claimed by the defendants/claimants, or, in some other equally efficacious
way.
● Appeal: An order dismissing an interpleader suit is appealable. An appeal can be
preferred under Order XLIII, Rule 1 of the Code of Civil Procedure, 1908.

4 See: S.B. Civil Writ Petition No. 15587/2009, High Court of Rajasthan, Date of Decision: 18.08.2010,
Coram: R.S. Chauhan, J.
5 See: Jugal Kishore & Anr v. Bhagwan Das, AIR 1990 P&H 82
6 AIR 1957 Mad 745
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 CONCLUSION AND SUGGESTIONS

The law enshrined under the Section 88 and Order XXXV stands to be one of the most
important civil laws. This provision is intended to protect person with a bona fide intent
from future condemn that he did not discharge his obligation or in other words it
safeguards a person right to costs of litigation who claims no interest in property or who is
the plaintiff and to determine the correct claim over the property or debt. If no such right is
protected or overlooked by the courts an appeal can filed before the appellate court under
Order XLIII, Rule 1 of the Code of Civil Procedure, 1908

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 BIBLIOGRAPHY

Books referred:
● Civil Procedure Code, Justice P.S. Narayana, 5th Edition, Asia Law House, 2013

● The Code of Civil Procedure, M.P.Jain, 3rd Editon, Lexis Nexis, 2012

● Law of Torst, Ratanlal Dhirajlal, 5th Edition, Lexis Nexis, 2013

● Criminal Law, Takwani, 2nd Edition, Lexis Nexis, 2013

Acts Referred
● Civil Procedure Code, 1908.

Websites Referred
● http://pib.nic.in/
● www.manupatra.com
● SCC online
● Legalservices.com
● www.draftingpleadingsfromat.com

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