Order 35 — Interlocutory Orders, Etc.

(1) Where 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.

(2) An application for an order under sub-rule (1) of Rule 1 of this Order may be made by the Claimant at any time after his right thereto appears from the pleadings.

(3) An application for an Order under sub-rule 1 of this Rule may be made by the Claimant immediately after closure of pleadings and before the commencement of trial.

Where an application is made before trial for an injunction or other Order, or at any time during the hearing thereof, it appears 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 subjectmatter of such action or matter or as to which any question may arise therein, and for all or any of the purposes aforesaid, authorise any persons 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, authorise any samples to be taken or any observation to be made or experiment to be conducted, 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 exchanged in the action or matter), and an inspection was applied for and was not granted, 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 person admitted to sue or defend in pauperis pauper, 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 therein.

Subject to the Court of Appeal Rules or any other law relating thereto:
(1) Where any property is in possession of the Court either before or after Judgement and it has remained so for a period of twelve months, a Judge may upon application make an Order for sale of that property and the proceeds thereof to be paid into an 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 such property shall be withdrawn from the bank by the successful party who shall present to the Chief Registrar, a Certified True Copy of the enrolled Judgement.

Where a claim 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, upon closure of pleadings, order that the party claiming to recover the property be at liberty to pay into Court, to await the outcome of the action, the amount of money in respect of which the lien or security is claimed and such further sum, if any, for the 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-matter 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 to the parties interested therein or any one 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.

Where an injunction has been or might have been claimed in any action or matter, the Claimant may, before or after Judgement, 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.

Where an application is made in any case 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 may probably be obtained by the Receiver and to the probable costs of his appointment and may, if the Judge shall deem fit, direct any inquiries on these or other matters before making the appointment.

Where an Order is made directing a Receiver to be appointed, unless otherwise ordered, the person to be appointed shall first give security to be approved by the Judge, duly to account for what he shall receive as such Receiver and to pay the same as the Judge shall direct and the person so to be appointed shall, unless otherwise ordered, be allowed a proper salary or allowance. The security to be given shall be by Guarantee or by an Undertaking as in Forms 31 or 32 with such variations as circumstances may require. The Guarantee or Undertaking shall be filed in the Registry and shall 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 Receiver, the Court may adjourn so that the Receiver may give security as in the last preceding Rule mentioned and may thereupon direct such Judgement or Order to be drawn up.

(1) Where a Receiver is appointed with a direction that he shall pass accounts, the Judge shall fix the days upon which he shall (quarterly or at shorter periods) leave and pass such accounts and also the days upon which he 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 him.

(2) Where a Receiver neglects to leave and pass his accounts and pay the balances at the times fixed for the purpose as aforesaid, the Judge may from time to time when his subsequent accounts are produced to be examined and passed, disallow the salary claimed by such Receiver and may also charge him with interest at a rate not exceeding twenty-five percent per annum upon the balances so neglected to be paid by him during the time the same remained in his hands.

Receivers’ accounts shall be as in Form 33 and with such variations as circumstances may require.

Every Receiver shall deliver to the Registrar his account together with an affidavit verifying the same as in Form 34 with such variations as circumstances may require. An appointment shall thereupon be obtained by the Claimant or person having the conduct of the action for the purpose of passing such account.

Where any Receiver fails to leave 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 passed or such payment was made or any other proper proceedings taken and thereupon such directions as shall be proper may be given, 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.