Incidental or ancillary powers are provided for in the Code of Civil Procedure. They otherwise inhere in the jurisdiction of the court exercising plenary jurisdiction in certain situations but it must be stated that an appellate court can exercise the incidental or ancillary power only after the appeal has been entertained and not as a condition precedent for entertaining the same.
It must be borne in mind that incidental power is to be exercised in aid to the final proceedings. In other words an order passed in the incidental proceedings will have a direct bearing on the result of the suit. Such proceedings which are in aid of the final proceedings cannot, thus, be held to be at par with supplemental proceedings which may not have anything to do with the ultimate result of the suit.
Such a supplemental proceeding is initiated with a view to prevent the ends of justice from being defeated. Supplemental proceedings may not be taken recourse to in a routine manner but only when an exigency of situation arises therefor. The orders passed in the supplemental proceedings may some time cause hardships to the other side and, thus, are required to be taken recourse to when it is necessary in the interest of justice and not otherwise. There are well-defined parameters laid down by the Court from time to time as regards the applicability of the supplemental proceedings.
Incidental proceedings are, however, taken recourse to in aid of the ultimate decision of the suit which would mean that any order passed in terms thereof, subject to the rules prescribed therefor, may have a bearing on the merit of the matter. Any order passed in aid of the suit is ancillary power.
The expression ‘ancillary’ means aiding, auxiliary; subordinate; attendant upon; that which aids or promotes a proceeding regarded as the principal.
The expression ‘incidental’ may mean differently in different contexts. While dealing with a procedural law, it may mean proceedings which are procedural in nature but when it is used in relation to an agreement or the delegated legislation, it may mean something more; but the distinction between an incidental proceeding and a supplemental proceeding is evident. [SUPREME COURT OF INDIA in G. L. Vijain Versus K. Shankar AIR 2007 SC 1103]