Criminal Law Property Law

Differences between Original Petition and Interlocutory Petition/Application

Original petition generally refers to any petition or any application in court that states the origination of disputes and seeks specific reliefs.  Rule 3(9) of the Code of Civil Procedure defines Original Petition as: ‘Original petition means a petition whereby any proceeding other than a suit or appeal or a proceedings in execution of a decree or order, is instituted in a court.” The Original Petition refers to the point of origination of the dispute.

On the other hand Interlocutory Petition is defined under the Civil Rules of Practice, Rule 2 (j) to mean “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”. It is interesting to note that the word “application” is defined in Rule 2 (c) that includes execution application, execution petition and interlocutory application, both written and oral.

Interlocutory Petitions are a form of incidental proceedings and they are in aid to the final proceedings. An Interlocutory Petition is initiated with a view to prevent the ends of justice from being defeated when the Original Petition is unable to address the immediate circumstances. Interlocutory Applications or Interlocutory Petitions are filed to support the main petition for an interlocutory relief during pendency of the main Petition.

However, interlocutory orders passed in the incidental proceedings have a direct bearing on the result of the original petition and such orders may be issued in a divorce proceeding where the interlocutory application is for maintenance, pending a decision on alimony and child support. Further, courts may also issue interlocutory orders where property is about to be sold or forfeited and grant interlocutory injunction, preventing the transfer of property until it has made a final decision.

If we look at the definition of Petition:

Petition: A written address, embodying an application or prayer from the person or persons preferring it, to the power, body or person to whom it is presented, for the exercise of his or their authority in the redress of some wrong, or the grant of some favour, privilege, or licence. A formal written request addressed to some Governmental authority. The right of the people to petition for redress of grievances is guaranteed by the First Amendment U.S. Constitution.

In general–A “petition” is a formal written request, made to some official or body having authority to grant it. State exc rel. Jackson v. School Dist. No. 2, 34P 2d 102, 104, 140 Kan 171.

A “petition” is a formal written request or prayer for a certain thing to be done, the signers of which attach their signatures voluntarily Davis v. Henderson 104 SW 1009, 127 Ky 13.

“Petition” meant an “appeal”, a “prayer” or a “request” to act, and did not mean a particular form diagram or definition. Tex O-Kan Flour Mills v. U.S. D.C. Tex., 49 F Supp 516, 520.

In Sm. Shyamali Sarkar vs Ashim Kumar Sarkar AIR 1988 Cal 124, 92 CWN 659 it was held that:
“the word petition, when used in juxtaposition to the word application, would mean petitions of original nature, that is petitions which would initiate and found proceedings of original nature which are independent of and not consequential to any other proceedings.”

However, the world application is synonymous with the term petition which means a written statement of material facts requesting the Court to grant the relief or remedy based on those facts as held in Philip v. Director of Enforcement AIR 1976 SC 1185, 1187/Criminal Procedure Code (1974), Section 482(2)(a).

In A.R. Munuswamy Rajoo vs Hamsa Rani (1974) 2 MLJ 237 it was held that:

Under Section 26 to make orders and provisions with respect to the custody, maintenance and education of children. It is true that as per this Rule, proceedings under Section 26 of the Act are to be initiated by means of an Original Petition. But then Rule 2 of the same Rules says that “every other proceedings subsequent to the petition shall be by an interlocutory application.

Petition for restitution of conjugal rights under Section 9 was initiated by an Original Petition in conformity with Rule 1. As Rule 2 says that every other proceeding subsequent to the petition shall be an interlocutory application, it may be construed to mean that once the main proceeding has been initiated by an Original Petition, any other proceeding like an application for maintenance subsequent to the petition can be by an interlocutory applications.

Further, in Joshy vs The State 1986 CriLJ 263 it was stated with regard to interlocutory orders that:

Ordinarily and generally ‘interlocutory’ order will have to be understood to mean as a converse to the term ‘final order’. But whatever is not final order cannot be taken as interlocutory order. If such an interpretation is placed, the revisional powers of the Sessions Court or the High Court will be rendered nugatory because only such orders on final determination of the action which are not appealable will become revisable. Evidently that is not the intention of the legislature when it retained the revisional powers of the High Court under the new Code. The retention of the revisional power and the bar in the exercise of such power in relation to interlocutory orders will have to be harmoniously interpreted. Orders summoning witnesses, adjourning cases, granting or refusing bail, calling for reports and such other steps which have nothing to do with determination of the rights of parties and which are only steps in aid of the pending proceedings will no doubt be only interlocutory orders from which revision petitions are barred under Section 397(2) of Cr.P.C.

Lastly, in T.V. Satyanarayana vs Subba Aruna Meenakshi ILR 1988 KAR 1074, it was said that the term Interlocutory Application” given in the Karnataka Civil Rules of Practice, 1967, reads as:

“17.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 the decree or setting aside the decree or final order made in such suit, appeal or proceeding.” An application under Section 24 of the Hindu Marriage Act squarely falls within the meaning of the words “Interlocutory Application”, as it could be made only in a main proceeding under one or the other provisions of the Hindu Marriage Act. Any order passed on such an application would certainly be an interlocutory order, Therefore, he submitted that notwithstanding the fact that an interlocutory order made in an application presented under Section 24 of the Hindu Marriage Act amounted to a ‘judgment’, the fact remains that it was an interlocutory order. Therefore, he submitted that as Section 19(1) expressly provides that an appeal lies only against any judgment or order, not being an interlocutory order, no appeal lies against an order made for grant of interim maintenance under Section 24 of the Hindu Marriage Act and notwithstanding the fact that it was a Judgment.

Thus, from the above discussion, it is evident that there are lot of differences between original petition and interlocutory petition/application. The intention of the legislature as well as the judiciary has been to allow Interlocutory applications that seek to meet the ends of justice and provide relief in circumstances where the Original Petition is not sufficient to address the immediate circumstances. However, there are several restrictions imposed on interlocutory applications and interlocutory orders to prevent unnecessary delays in court proceedings.

13 replies on “Differences between Original Petition and Interlocutory Petition/Application”

i am in need of a succinct format for Civil application for interlocutory order in a writ petition.
Is it the same as petition with only difference pertaining to the interim relief to be sought. IS the detailed fact of the case to be mentioned again inthe civil application

I have filed a OS 4 years ago for a pre-emption right for a adjacent piece of land measuring 26 units.. At the time of filing the suit, in the disputed land 14 to 15 units of the land was coverd with extra mud and brought to higher plateau than the surrounding land, around 6 months ago the defendants brought extra mud to cover the remaining 10 units of land and bring it to same level as the earlier filling in the process they also built a water well there… there was no action taken from the plaintiffs side except for making a poilce complaint…. will this new development have a bearing on the the final disposal of the case…

when we do the roll of judge at that mootcourt practical training what question we ask for example state of U.P. V/S munesh

Whats meaning of I.A. IS REJECTED in the following case ? Please let me know

Bench Last Date Purpose Action
Hon’ble Shri Justice Goutam Bhaduri 09/09/2014 MOTION HEARING MATTERS I.A. IS REJECTED

I have given the price for a land, which was registered under my brother’s name. Now my brother is not handing over that land to me. How I will get the solution. Now he is not accepting that the price of land I have paid.

Very clearly explained. .it would be better if you had given atleast one example..

HI.. Could you please tell clearly as to where is the definition of Original Petition under the Code of Civil Procedure??? You claim it to be Rule 3 (9) but under which Order of the First Schedule of the Code of Civil procedure, 1908 has the word ‘Original Petition’ been defined?

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