Order 39 — Interlocutory Orders, Etc.

(1) When by any contract a prima facie case of liability is established and there is alleged as a matter of defence a right to be relieved wholly or partially from such liability, a Judge may make an order for the preservation or interim custody of the subject matter of the litigation or may order that the amount in dispute be brought into Court or otherwise secured.

Whenever an application shall be made before trial for an injunction or other order and on the opening of such application, or at any time during the hearing thereof, it shall appear to the Judge that the matter in controversy in the cause or matter is one which can be most conveniently dealt with by an early trial, without first going into the whole merits on affidavit or other evidence for the purposes of the application, it shall be lawful for the Judge to make an order for such trial accordingly, and in the meantime to make such order as the justice of the case may require.

The Judge may, upon the application of any party, make any order for the sale by any person or persons named in such order and in such manner and on such terms as the Judge may deem desirable, of any goods, wares, or merchandise which may be of a perishable nature, or likely to deteriorate if kept, or which for any other just and sufficient reason it may be desirable to sell at once.

(1) A Judge may, upon the application of any party to an action or matter and upon such terms as may be just, make any order for the detention, preservation or inspection of any property or thing, being the subject of such action or matter or as to which any question may arise therein, and for all or any of the purposes aforesaid, to authorise any person to enter upon or into any land or building in the possession of any party to such action or matter, and for all or any of the purposes aforesaid to authorise any samples to be taken or any observation to be made or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence.

(2) Where an order for the inspection of any property or thing is made on an application under this Rule (including an application made before any pleadings have been delivered in the action or matter), it appears that inspection was requested in writing by the Applicant and was not given, then, unless the Judge is satisfied that the Respondent did not unreasonably fail or refuse to permit the inspection, the Judge shall order the costs to be paid by the Respondent in any event and except where the Respondent is a “poor person”, shall order the costs to be paid forthwith.

(3) The Judge by whom any action or matter may be heard or tried, may inspect any property or thing concerning which any question may arise or has arisen in the cause or matter.

(1) Where any property is in possession of the court either before or after judgment, and it has remained so for a period of 12 months, a Judge may, suo-motu or upon application, make an order for the sale of that property, and the proceeds thereof to be paid into an interest yielding account in a commercial bank directed by the Judge for the benefit of the person that succeeds at the trial or on appeal.

(2) The money paid after disposal of any property shall be withdrawn from the bank by the successful party who shall present to the Chief Registrar a certified true copy of the enrolment of the judgement.

Where an action or counterclaim is filed to recover specific property and the party from whom such recovery is sought does not dispute title but claims to retain the property by virtue of a lien or otherwise as security for any sum of money, the Judge may, at the pre-trial conference, order that the party claiming to recover the property be at liberty to pay into Court, to abide the event of the action, the amount of money in respect of which the lien or security is claimed and such further sum, if any, for interest and costs as the Judge may direct and that upon such payment into Court being made, the property claimed be given up to the party claiming it.

Where any real or personal estate or property forms the subject of any proceedings and the Judge is satisfied that the same will be more than sufficient to answer all the claims thereon which ought to be provided for in such proceedings, the Judge may, at any time after the commencement of the proceedings, allow the parties interested therein or anyone or more of them, the whole or part of the annual income of the real estate or a part of the personal estate or property or the whole or part of the income thereof, up to such time as the Judge shall direct.

In any action or matter in which an injunction has been or might have been claimed, the Plaintiff may, before or after judgment, apply for an injunction to restrain the Defendant or Respondent from the repetition or continuance of the wrongful act or breach of contract complained of or from the commission of any injury relating to the same property or right or arising out of the same contract and the Judge may grant the injunction either upon or without terms as may be just.

In every case in which an application is made for the appointment of a receiver by way of equitable execution, the Judge, in determining whether it is just or convenient that such appointment should be made, shall have regard to the amount of the debt claimed by the Applicant, to the amount which is likely to be realized by the appointment, and to the probable cost of the appointment.

(1) Where an order is made directing a receiver to be appointed, the person to be appointed shall, unless otherwise ordered-

(a) give security, to be approved by the Judge to duly account for what he shall receive as such receiver, and to pay the same as the Judge shall direct; and

(b) the person so appointed shall, unless otherwise ordered, be allowed a proper salary or allowance.

(2) The security to be given shall be-

(a) by guarantee or by an undertaking in Forms 29 and 30 with such variations as circumstances may require; and

(b) filed in the Registry and form part of the record of proceedings until it has been duly vacated.

Where any judgement or order is pronounced or made in court appointing a person therein named to be a receiver, the Court may adjourn the proceedings then pending in order that the person named as receiver may give security as in the last preceding rule mentioned, and may thereupon direct such judgement or order to be drawn up.

(1) When a receiver is appointed with a direction to pass accounts, the Judge shall fix the days upon which the receiver shall give and pass such accounts, either quarterly or such shorter period; and

(2) The days upon which the receiver shall pay the balances appearing due on the accounts so left or such part of them as shall be certified as proper to be paid by the receiver.

(3) Where any receiver neglects to give and pass accounts or pay balances at the times fixed for that purpose, the Judge may when his subsequent accounts are produced to be examined and passed, disallow the salary claimed by such receiver and may also charge the receiver with interest at a rate not exceeding twenty-five percent (25%) per annum upon the balances so neglected to be paid by the receiver during the time the same appears to have remained in the hands of the receiver.

Receivers’ accounts shall be in Form 31 with such variations as circumstances may require.

Every receiver shall deliver to the Registrar the receiver’s account, together with an affidavit verifying the same in Form 32 with such variations as circumstances may require. An appointment shall thereupon be obtained by the Plaintiff or person having the conduct of the action for the purpose of passing such account.

(1) Where any receiver fails to give any account or affidavit or to pass such account or to make any payment or otherwise, the receiver or the parties or any of them, may be required to show cause why such account was not passed or such payment was not made or any other proper proceedings taken; and

(2) The Judge shall, after the parties or the receiver have shown cause, give such directions as may be proper, including the discharge of any receiver and appointment of another and payment of costs.

The accounts of guardians shall be passed and verified in the same manner as is by this Order directed as to receivers’ accounts.