DECREE ORDER AND JUDGEMENT

Q) Define Decree. [3]/ [4]

Ans. Section 2(2) of the Code defines Decree as – ‘Decree’ means the formal expression of an
adjudication which, so far as regards the Court expressing it, conclusively determines the rights
of the parties with regard to all or any of the matters in controversy in the suit and may be either
preliminary or final. It shall be deemed to include the rejection of a plaint and the determination
of any question within section 144, but shall not include-
a. any adjudication from which an appeal lies as an appeal from an order, or
b. Any order of dismissal for default.
Explanation--
A decree is preliminary when further proceedings have to be taken before the suit can be
completely disposed of. It is final when such adjudication completely disposes of the suit. It
may be partly preliminary and partly final.
In the case of Bikoba Deora Gaikward v. Hirabai Marutirao Ghoragare (2008), it was held
by the court that a "decree" denotes final adjudication between the parties and against which
an appeal lies, but only when a suit is completely disposed of, thereby a final decree would
come into being.
Thus, 'decree' means a general or formal expression of an adjudication as regards the court
expressing it, conclusively determines the rights of the parties with regard to all or any of the
matters in controversy in the suit and may be:
(a) preliminary; or
(b) final.
The definition of decree does not include any order of “dismissal for default”. The words
“dismissal for default” include, for want of prosecution of suit or appeal, default for want of
prosecution of suit or appeal, default for non-appearance or for other reasons.
Q) What are the essential ingredients of a decree? [4]
Ans. Following are the mandatory elements to be fulfilled for the adjudication to be termed as
a decree.
1. Formal expression: There must be a formal expression of adjudication. In simple terms to be
a decree, the court must formally express its decision in the manner provided by law. A mere
comment of the judge cannot be a decree. The decree follows the judgment and must be drawn
up separately. If a decree has not been drawn up, then there is absolutely no scope of an appeal
 from the judgment i.e. No appeal lies against the judgment, if the decree is not formally drawn
upon the judgment.
2. Adjudication: It means judicial determination of the matter in dispute. Hence, if the decision
is of administrative in nature, then it cannot be considered as a decree. The adjudication must
be about any or all of the matters in controversy in the suit. The court should resolve the matter
of controversy through its own, by applying the facts and circumstances of the case therein.
The Supreme Court in Madan Naik v. Hansubala Devi, held that if the matter is not judicially
determined then, it is not a decree.
3. Suit: The Adjudication must have been given in a suit, which is commenced by filing a plaint
in a civil court. Without a civil suit there lies no decree. However, there are several specific
provisions which enable certain applications to be treated as suits such as proceedings under
the Hindu Marriage Act, the Indian Succession Act, the Land Acquisition Act, etc. They are
regarded as statutory suits and the decision given there under are decrees.
In Hansraj Gupta v. Official Liquidators of The Dehra Dun-Missoorie Electric Tramway
Co. Ltd., their Lordship of the Privy Council stated that the word ‘suit’ ordinary means, a civil
proceeding instituted by the presentation of a plaint.”
4. Rights of the parties: ‘Right’ means substantive rights and not merely procedural rights.
Similarly, the parties to the rights in controversy should be the plaintiffs and defendants and, if
an order is passed upon the application made by a third party who is a stranger to suit then it is
not a decree. It must have determined the rights of the parties with regard to all or any of the
matters in controversy in the suit. An order rejecting the application of a poor plaintiff to waive
the court costs is not a decree because it does not determine the right of the party in regards to
the matters alleged in the suit. Dismissing a suit for default in appearance of the plaintiff is not
a decree. However, dismissing a suit on merits of the case would be a decree.
The disputed matter should be the subject matter of the suit, regarding which the relief is
sought. Any question regarding the status and characters of party suing, the jurisdiction of the
court, maintainability of suit or any other preliminary matter is covered under this subject.
5. Conclusive Determination: The decision must be one which is complete and final as regards
the court which passed it. This means that the court will not entertain any argument to change
the decision i.e., as far as the court is concerned; the matter in issue stands resolved. For
example, an order striking out defence of a tenant under a relevant Rent Act, or an order
refusing an adjournment is not a decree as they do not determine the right of a party
conclusively. An interlocutory order which does not finally determine the rights of parties is
not considered as a decree. On the other hand, out of several properties in issue in a suit, the
court may make a conclusive determination about the ownership of a particular property. Such
a conclusive determination would be a decree even though it does not dispose off the suit
completely.
Q) What do you mean by Order? [4]
Ans. Section 2 (14) of the Code defines the term Order as a formal expression of any decision
of a Civil Court which is not a decree. Thus, the adjudication of a court which is not a decree
is an order. As a general rule, an order of the court of law is founded on objective considerations
and as such the judicial order must contain a discussion of the question at issue and the reason
which prevailed with the court which led to the passing of the order. An order should be a
formal expression of any decision. The decision should be pronounced by the civil court. An
order generally arises from a proceeding commenced on an application. An order may or may
not finally determine the rights of the parties. An order is passed from a single suit.
Q) Write a brief note distinguishing Decree, Order and Judgement. [3]
Ans.
Order vs Decree
In the realm of civil procedure, the terms "order" and "decree" are fundamental concepts that
play distinct roles in the judicial process. Both are official pronouncements made by a court,
yet they serve different purposes and have unique characteristics. Understanding the difference
between an order and a decree is crucial for anyone navigating the legal system, as each term
defines specific aspects of how legal decisions are communicated and implemented. This
distinction not only clarifies the procedural journey of a case but also impacts the rights and
obligations of the parties involved.
1. Meaning A decree is an official proclamation issued by a judge that explains the
adjudication concerning the rights of the parties involved in a lawsuit. It addresses the
substantive legal rights, such as ownership or compensation, and is a formal statement of
the court's decision on the matters presented in the suit. An order, on the other hand, is an
official announcement of the court's decision, defining the relationship of the parties during
the proceedings. Unlike a decree, an order deals primarily with procedural legal rights, such
as the admission of evidence or the scheduling of hearings.
2. Pass A decree is passed in a suit that has been initiated by the presentation of a plaint,
which is a formal written statement by the plaintiff outlining their cause of action. In
contrast, an order can be passed in a suit initiated not only by a plaint but also by an
application or petition. This means that orders can address various procedural aspects of
the case at different stages, beyond the initial filing of the plaint.
3. Deals with Decrees address the substantive legal rights of the parties involved, determining
the final resolution of the issues presented in the lawsuit. They provide a conclusive
statement on the rights and obligations of the parties. Orders, however, deal with the
procedural legal rights, guiding how the case proceeds through the judicial process. They
are more concerned with the steps and rules governing the conduct of the trial rather than
the final outcome of the dispute.
4. Defined in Decrees are defined under Section 2(2) of the Code of Civil Procedure Act,
1908. This section elaborates on what constitutes a decree, including its components and
implications. Orders are defined under Section 2(14) of the same Act, which outlines the
nature and scope of orders within the judicial process.
5. Ascertainment of Rights A decree clearly ascertains the rights of the parties concerned,
providing a definitive resolution to the legal issues in the suit. It leaves little ambiguity
regarding the rights and obligations determined by the court. Orders, however, may or may
not clearly ascertain the rights of the parties. They can be interim measures or procedural
directions that do not necessarily resolve the substantive issues in the case.
6. Number In any given suit, there is only one decree, which serves as the final judgment on
the matters at hand. However, there can be multiple orders issued throughout the duration
of the suit, addressing various procedural aspects as the case progresses.
7. Type Decrees can be preliminary, final, or partly preliminary and partly final. A
preliminary decree is an initial determination that requires further proceedings before a
final decree can be issued. A final decree concludes the litigation. Orders, in contrast, are
always final in nature regarding the specific procedural issue they address, though they do
not necessarily conclude the overall suit.
8. Appeal Decrees are normally appealable, allowing the parties to challenge the court's final
determination, except in cases where the law specifically bars such an appeal. Orders can
be either appealable or non-appealable, depending on the nature of the order and the legal
provisions governing it. Some procedural orders might not be subject to appeal, whereas
others can be challenged in a higher court.
In summary, while both orders and decrees are essential components of the judicial process,
they cater to different aspects of a lawsuit. A decree is a comprehensive resolution of the
substantive legal rights of the parties, often marking the conclusion of the litigation. In contrast,
an order primarily deals with procedural matters, guiding the conduct of the trial and ensuring
that the legal process is followed correctly. Recognizing the differences between these two
legal instruments is vital for understanding how courts administer justice and for effectively
navigating the complexities of civil litigation.
Orders v. Judgements
Order is defined under Section 2(14) of the CPC as "the formal expression of any decision of
a civil court which is not a decree." Whereas a judgement is defined under Section 2(9) of the
CPC as "the statement given by the judge of the grounds of a decree or order."
1. Purpose: Orders are used to manage the procedural aspects of a case, while judgements
provide the final decision on the case's merits.
2. Formal Expression: Orders must be expressed formally, whereas judgements are the
formal expression of the court's decision.
3. Decisive Nature: Orders are not necessarily conclusive, whereas judgements are
conclusive and final.
4. Execution: Orders can be executed immediately, whereas judgements are followed by the
issuance of a decree, which is then executed.
5. Appealability: Orders are generally non-appealable, whereas judgements are appealable.
6. Content: Orders typically include procedural details, whereas judgements include the
reasoning behind the decision and the relief granted.
7. Timing: Orders can be passed at any stage of the case, whereas judgements are typically
delivered after the completion of the hearing.
8. Significance: Orders are essential for managing the case, whereas judgements are the final
outcome of the legal process.
9. Execution by Court: Orders can be executed by the court that passed them, whereas
judgements are executed by the court that passed them or by another court to which they
are sent for execution.
10. Time Limit: Orders are generally not subject to a time limit, whereas judgements must be
pronounced within 30 days of the hearing, unless extraordinary circumstances apply.
Decrees v. Judgements
A decree is defined under Section 2(2) of the CPC as "the formal expression of an adjudication
which, so far as regards the Court expressing it, conclusively determines the rights of the
parties. "Whereas a judgement is defined under Section 2(9) of the CPC as "the statement given
by the judge of the grounds of a decree or order."
• Purpose: A decree is the final expression of the court's adjudication, whereas a judgement
is the statement given by the judge of the grounds of a decree or order.
• Formal Expression: A decree is the formal expression of the adjudication, whereas a
judgement is the formal expression of the court's decision.
• Conclusiveness: A decree conclusively determines the rights of the parties, whereas a
judgement is conclusive but does not necessarily determine the rights of the parties.
• Execution: A decree is executed by the court that passed it or by another court to which it
is sent for execution, whereas a judgement is followed by the issuance of a decree, which
is then executed.
• Appealability: A decree is generally not appealable, whereas a judgement is appealable.
• Content: A decree includes the adjudication of the case, whereas a judgement includes the
reasoning behind the decision and the relief granted.
• Timing: A decree is issued after the judgement, whereas a judgement is delivered after the
completion of the hearing.
• Significance: A decree is the final outcome of the legal process, whereas a judgement is
the statement given by the judge of the grounds of a decree or order.
• Time Limit: A decree is not subject to a time limit, whereas a judgement must be
pronounced within 30 days of the hearing, unless extraordinary circumstances apply.
• Execution by Court: A decree can be executed by the court that passed it or by another
court to which it is sent for execution, whereas a judgement is executed by the court that
passed it or by another court to which it is sent for execution
Q) Write a note on Execution of Decree. [10]
Ans. Execution is the last stage of any civil litigation. There are three stages in litigation:
1. Institution of litigation.
2. Adjudication of litigation.
3. Implementation of litigation.
Implementation of litigation is also known as execution. A decree will come into existence
where the civil litigation has been instituted with the presentment of plaint. Decree means
operation or conclusiveness of judgement. Implementation of a decree will be done only when
parties has filed application in that regard. A decree or order will be executed by court as
facilitative and not as obligation. If a party is not approaching court, then the court has no
obligation to implement it suo moto. A decree will be executed by the court which has passed
the judgement. In exceptional circumstances, the judgement will be implemented by other court
which is having competency in that regard. Execution is the medium by which a decree-holder
compels the judgement-debtor to carry out the mandate of the decree or order as the case may
be. It enables the decree-holder to recover the fruits of the judgement. The execution is
complete when the judgement-creditor or decree-holder gets money or other thing awarded to
him by judgement, decree or order.
The term “execution” has not been defined in the code. The expression “execution” means
enforcement or implementation or giving an effect to the order or judgement passed by the
court of justice. Simply “execution” means the process for enforcing or giving effect to the
judgement of the court. (Overseas Aviation Engineering 1962) Execution is the enforcement
of decrees and orders by the process of court, so as to enable the decree-holder to realise the
fruits of the decree. The execution is complete when the judgement-creditor or decree-holder
gets money or other thing awarded to him by the judgement, decree or order.
Illustration: A files a suit against B for Rs 10,000 and obtains a decree against him. Here A is
the decreeholder. B is the judgement-debtor, and the amount of Rs 10,000 is the judgement-
debt or the decretal amount. Since the decree is passed against B, he is bound to pay Rs 10,000
to A. Suppose in spite of the decree, B refuses to pay the decretal amount to A, and A can
recover the said amount from B by executing the decree through judicial process.
The principle governing execution of decree and orders are dealt with in Sections 36 to 74
(substantive law) and Order XXI of the code (procedural law).
Supreme Court in Ghanshyam Das v. Anant Kumar Sinha, (1991) dealing with provision of
the code relating to execution of decree and orders, stated, “so far as the question of
executability of a decree is concerned, the Civil Procedure Code contains elaborate and
exhaustive provisions for dealing with it in all aspects. The numerous rules of Order XXI of
the code take care of different situations providing effective remedies not only to judgement-
debtors and decree-holders but also to claimant objectors, as the case may be. In an exceptional
case, where provisions are rendered incapable of giving relief to an aggrieved party in adequate
measures and appropriate time, the answer is a regular suit in the civil court.
Principles with regard to execution of Decree and Order
1. Provision of CPC relating to execution of decree and order shall be made applicable to both
Appeal and Sue.
2. A decree may be executed by the court which passed the judgement and decree or by some
other court which is having competency to implement the judgement passed by such other
court.
3. The court which passed the decree may send it for execution to other court either on
application of the applicant (decree-holder) or by the court itself.
4. A court may order for execution of decree on the application of decree on the application
of decree holder
 (a) by delivery of any property which was in possession of judgement-debtor and decree
has been specifically passed concerning such property
(b) by attachment and sell of the property of the judgement-debtor
(c) by arrest and detention (civil imprisonment)
(d) by appointing a receiver
(e) in such other manner which depends upon nature of relief granted by the court.
5. Upon the application of decree-holder, the court may issue “percept” to any other court
which is competent in that regard.
6. All questions arising between the parties to the suit in the decree shall be determined by the
court while executing the decree and not by separate suit.
7. Where a decree is passed against a party as the “legal representative” of a deceased person
and decree is for payment of money out of the property of deceased person, it may be
executed by attachment and sell of any such property.
8. A judgement-debtor may be arrested at any time and on any date shall required to be
brought before the court which has passed the decree and his detention may be in civil
prison of the district where decree shall have to be executed.
9. Where immovable property has been sold by the court in execution of a decree such sell
shall be absolute. The property shall be deemed to be invested in the favour of purchaser,
and the purchaser shall be deemed as a party to litigation.
10. The court to which decree is sent for execution shall require certifying to the court which
has passed decree stating the manner in which decree has been implementing concerning
the fact of such execution.
Q) Can the following Orders be deemed as Decree: [5×2]
(i) The rejection of plaint.
Yes, the rejection of a plaint can be deemed as a decree. According to the Code of Civil
Procedure, an order rejecting a plaint is considered a decree, as it negates the plaintiff's right to
file the suit.
(ii) The return of plaint.
No, the return of a plaint is not considered a decree. The search results indicate that an order
returning a plaint to be presented to the proper court is not a decree, as it does not negate any
right of the plaintiff and is not a decision on the rights of the parties.
(iii) For granting alimony.
Yes, an order granting alimony can be deemed as a decree. The search results do not explicitly
mention this, but an order granting alimony would be a final adjudication of the parties' rights
and therefore considered a decree.
(iv) For dismissal of suit.
Yes, an order dismissing a suit can be deemed as a decree. However, the search results note
that a dismissal of a suit for non-prosecution or non-appearance of the plaintiff is not considered
a decree, as the definition of 'decree' does not include orders of dismissal for default.
(v) Any adjudication from which an appeal lies.
No, not all adjudications from which an appeal lies are considered decrees. The search results
explain that an 'order' is the formal expression of any decision of a civil court that is not a
decree. Orders that are appealable, such as orders on arbitration matters, are not considered
decrees.
Q) Short Notes on: [8]
(i) Decree Holder
Section 2(3) of CPC defines the term decree holder. Decree holder means any person in
whose favour a decree has been passed or an order capable of execution has been made.
The term decree holder denotes a person:
• In whose favour a decree has been passed.
• In whose favour an order capable of execution has been made.
• Whose name appears in the decree, either as plaintiff or defendant and the following
conditions are satisfied:
1. The decree must be capable of execution.
2. The said person, by the terms of the decree itself or from its nature, should be legally
entitled to seek its execution.
In Ajudhia Prasad v. The UP Govt. through the Collector (1947), the Allahabad High
Court considered the scope of the expression decree holder. The Court held that it is clear
from this that a person in whose favour an order capable of execution has been made is
also a decree holder.
It is also evident from this definition that a decree-holder need not be a party to the suit.
Q) “A court executing the decree cannot go beyond the decree. It must take the decree as
it stands”. Explain this statement with reference to its exceptions. [10]
Ans. The executing court cannot question the validity of a decree. It has to take the decree as
it stands and has to execute it according to its terms. The executing court must abide by the
directions contained in the decree. It is beyond its province to question its legality or
correctness. The executing court cannot enter into criticism of the decree or give relief against
its rigour. It cannot allow objections that the decree was obtained by fraud or passed against a
wrong person or against a minor, who was not properly represented. Such pleas can be raised
not in the executing court but by means of a separate suit or by means of an appeal, if the same
is permissible. There are, however, three cases where the executing court can go behind the
decree. They are as under-
1. Where the decree is a nullity- The objection of the judgment debtor that the decree
isa nullity because it waspassed against a dead person, without bringing his legal
representative on the record is an objection which can be entertained by the executing court,
for in such a case if the objection Is proved there is no executable decree all.
2. Where the decree is ambiguous, i.e., a decree instead of meaning one thing may mean
two or more different things. In such a case it is the duty of the executing court to go behind
the decree and seek to ascertain from the judgment and pleading the true implication of the
decree. This is necessary to enable the executing court to execute the decree
3. Where the decree has been made by a court without jurisdiction, i.e., in respect
of territorial or pecuniary jurisdiction or in respect of the judgment debtors person. 'no
objection based on the ground of jurisdiction can be entertained by the executing court for
if the decree has been passed without jurisdiction by a court, there is no executable decree.
Q) Explain the different modes of executing Decree. [6]
Ans. The execution of a decree involves various methods, as prescribed under Order 21 of the
Code of Civil Procedure (CPC). A decree-holder must file an application in the court to initiate
execution according to Order XXI Rule 10. The modes of execution are detailed below:
1. Delivery of Property
One common mode is the delivery of property. For movable property, Order XXI Rule 79
stipulates that property sold and seized must be delivered to the purchaser. In the case of
immovable property, Order XXI Rule 35 provides guidelines for its delivery. The property can
be handed over to the person adjudged or their representative, and any person bound by the
decree who refuses to vacate must be removed. In cases of joint possession, a warrant copy is
affixed in a visible place. If access is obstructed, the court can take necessary actions, such as
breaking locks or doors, to ensure possession.
2. Attachment of Property
Attachment and sale of property is another significant mode. Section 60 of the CPC lists
properties liable to attachment, including land, buildings, goods, money, securities, debts, and
shares. Certain agricultural produce is exempted under Section 61. When immovable property
spans multiple jurisdictions, any one court can attach and sell it (Order XXI Rule 3).
Applications for attachment must include specific information (Order XXI Rule 13). Specific
movable property can be seized, delivered, or lead to the detention of the judgment-debtor in
civil prison (Order XXI Rule 31).
3. Arrest and Detention
Arrest and detention of the judgment-debtor is another method detailed under Section 55,
which provides general rules, including the timing of arrests and the conditions for detention
in civil prison. Rule 37 allows judgment-debtors to show cause against detention, and Rule 38
and Rule 39 cover the execution of arrest warrants and subsistence allowances for the
judgment-debtor. Judgment-debtors can be detained for periods depending on the decree
amount, as specified in Section 58, and may be released on grounds of illness (Section 59).
4. Partition
For partition of property, Rule 18 of Order XX allows the court to pass a preliminary decree to
demarcate rights. If the property involves revenue to the government, the Collector or a
gazetted officer may handle the partition. Cross-decrees and cross-claims involve the
simultaneous execution of mutual debts between parties (Order XXI Rule 18 and Rule 19).
5. Payment of Money
The payment of money under a decree is governed by Order XXI Rule 1, which outlines
methods such as court deposit, money order, or bank deposit. Judgment-debtors must notify
the court of out-of-court payments (Order XXI Rule 2). Enforcement can involve detention or
property attachment (Order XXI Rule 30). For specific performance or injunctions, Rule 32
allows detention or property attachment for willful disobedience.
6. Appointment of a Receiver
The appointment of a receiver, covered under Order XL, is another mode of execution. Courts
can appoint receivers to manage property, collect rents, execute documents, and perform other
duties. Receivers must furnish security, submit accounts, and are responsible for property
losses due to wilful default or negligence. The court may attach and sell the receiver's property
to recover losses incurred.
Q) "Civil Procedure is an adjective law" - Discuss. [16]
Ans. Procedural Law (or Adjective Law) deals with the enforcement of law that is guided and
regulated by the practice, procedure and machinery. This law is very important in
administration of justice. Procedural law functions as the means by which society implements
its substantive goals. Procedural law is derived from constitutional law, Statutes enacted by
legislature, law enforcement agencies promulgating written regulations for their employees,
which may not have the force of law but their violation may result in internal sanctions; and
the rules and procedural guidelines laid down by the Supreme Court.
According to Holland, Adjective law, though concerns primarily with the rights and acts of
private litigants, touches closely on topics, such as the organization of Courts and the duties of
judges and sheriffs, which belong to public law. It comprises of (i) jurisdiction (in the conflicts
sense); (ii) jurisdiction (domestic sense) ; (iii) the action, including summons, pleadings,
trial(including evidence); (iv) judgment; (v) appeal; (vi) execution. Procedural Law is that law
which prescribes method of enforcing rights or obtaining redress for their invasion; machinery
for carrying on a Suit. The Code of Civil Procedure, 1908; Code of Criminal Procedure, 1973;
Indian Evidence Act, 1872; Limitation Act, 1963; The Court Fees Act 1870; The Suits
Valuation Act, 1887 are examples of Procedural Law in India.
CPC is a collated code incorporating the various laws in its sphere but it is not exhaustive
within it. Courts are to be guided by principles of equity and justice while dealing with
scenarios for which the existing code may not be enough. Thus, the court’s ability to take such
decisions is deemed necessary in its objective of preventing any miscarriage of justice.
Various judgments in this regard can be to ascertain the aforementioned purpose of the code
such as Sangram Singh v. Election Tribunal wherein the apex court discussed about the need
for a more liberal understanding of CPC for justice to be delivered in its most apt manner. Only
through these adjective laws, the concept of fair trial and natural justice can be executed in
reality and without these ideas in context; the court trial is deemed to be invalid and null. Civil
Procedural Code has been very important in the legal framework owing to its various
procedural aspects as well as its objective of pursuing of an efficient justice system through
fair trial, free provision of legal aid and speedy justice among other ideals. It can be concluded
that these ideals are being properly followed through the innumerable efforts in the Code
towards the objective of natural justice. The Code engendered various innovative measures to
achieve its goal of speedy trials like that of arbitration and measures of settlement which helps
reduce the backlog of cases and provides fair trial to people in a more efficient manner. Not
only these, there are other forms of efforts being taken for fair trial to be followed in Indian
Judicial process such as Open and Public trial. All the principles of appeal and review of
decisions have been properly enshrined in the framework to create a robust system that is
largely unfailing. The principles of natural justice have constantly been referred to and every
amendment that have taken place clearly has been through such understanding.
In general, all Procedural Laws are retrospective unless a legislature specifies so. In ‘Nani
Gopal Mitra v. State of Bihar’ (AIR 1970), the Court declared that amendments relating to
procedure operated retrospectively subject to the exception that whatever be the procedure
which was correctly adopted and proceedings concluded under the old law the same cannot be
reopened for the purpose of applying the new procedure.
The CPC exemplifies procedural or adjective law, playing a crucial role in the Indian judicial
system by outlining the methods for enforcing rights and obtaining legal remedies. It ensures
systematic and fair legal processes, guiding courts in aspects like jurisdiction, trials, judgments,
and executions. While comprehensive, the CPC is not exhaustive, allowing courts the
discretion to apply principles of equity and justice to fill gaps and prevent miscarriages of
justice. Through mechanisms like arbitration and settlement, the CPC strives for efficient case
resolution, embodying ideals of fair trial and natural justice. Amendments to procedural laws,
often applied retrospectively, illustrate an ongoing effort to adapt and enhance the justice
delivery system. Thus, the CPC is indispensable in achieving a fair and effective judicial
process, underscoring the critical importance of procedural law.
PLAINT AND WRITTEN STATEMENT

Q) What is a Plaint [8]

Ans. The expression Plaint has not been defined in the Code. However, it can be said to be a
statement of claim, a document, by presentation of which the suit is instituted. Its object is to
state the grounds upon which the assistance of the court is sought by the plaintiff. It is a
pleading of the Plaintiff.
Provisions of Plaint in CPC
Order VII of the CPC is all about the “plaint.” In this order, you’ll find different rules that cover
various aspects of what should be in a plaint. Here’s a breakdown:
• Rules 1 to 8: These rules explain what specific details should be included in the plaint.
• Rule 9: This rule tells us how the court should admit the plaint.
• Rules 10 to 10-B: These rules discuss what happens if the plaint in CPC needs to be
returned and how parties should appear.
• Main Rules 11 to 13: These rules lay out the situations in which the court can reject the
plaint.
Section 26 of the Code of Civil Procedure is important because it says that every lawsuit has
to start with the presentation of a plaint in CPC or in a way that the law says. So, it’s clear that
a plaint is essential when you want to begin a case in a civil or commercial court.
Contents of A Plaint
A plaint in CPC is a crucial legal document that must contain specific information; otherwise,
it won’t be considered valid. These necessary details are outlined in Rules 1 to 8 of Order VII
of the CPC. Here’s a breakdown of what should be the content of a plaint in CPC:
1. The name of the civil or commercial court where the lawsuit will be filed.
2. Information about the plaintiff, including their name, address and description.
3. Details about the defendant, including their name, residence and description.
4. If the plaintiff has any health issues or disabilities, these should be mentioned.
5. The facts that give rise to the cause of action and where this cause of action occurred.
6. Facts that help determine the court’s jurisdiction.
7. Information about the relief or remedy the plaintiff is seeking from the court.
8. If the plaintiff wants to set off a portion of their claim, the amount allowed should be stated.
9. The value of the subject matter of the suit, not just for jurisdiction but also for court fees.
10. Verification by the plaintiff under oath.
These details make a plaint in CPC essential for starting a lawsuit in civil or commercial courts
and it remains significant throughout the legal process. Additionally, Rule 2 of Order VII
specifies that the plaintiff must state the exact amount of money they seek from the defendant
and Rule 3 requires a proper description of immovable property when it’s involved in the case.
Q) What are the necessary elements of plaints? [8]
Ans. Define Plaint
A plaint in CPC is a crucial legal document that must contain specific information; otherwise,
it won’t be considered valid. These necessary details are outlined in Rules 1 to 8 of Order VII
of the CPC. Here’s a breakdown of what should be the content of a plaint in CPC:
1. The name of the civil or commercial court where the lawsuit will be filed.
2. Information about the plaintiff, including their name, address and description.
3. Details about the defendant, including their name, residence and description.
4. If the plaintiff has any health issues or disabilities, these should be mentioned.
5. The facts that give rise to the cause of action and where this cause of action occurred.
6. Facts that help determine the court’s jurisdiction.
7. Information about the relief or remedy the plaintiff is seeking from the court.
8. If the plaintiff wants to set off a portion of their claim, the amount allowed should be stated.
9. The value of the subject matter of the suit, not just for jurisdiction but also for court fees.
10. Verification by the plaintiff under oath.
These details make a plaint in CPC essential for starting a lawsuit in civil or commercial courts
and it remains significant throughout the legal process. Additionally, Rule 2 of Order VII
specifies that the plaintiff must state the exact amount of money they seek from the defendant
and Rule 3 requires a proper description of immovable property when it’s involved in the case.

Q) What is written statement? [2]

Ans. Though the expression ‘written statement’ has not been defined in the Code, it is ‘a term
of specific connotation ordinarily signifying a reply to the plaint filed by the plaintiff. In other
words, a written statement is the pleading of the defendant wherein he deals with every material
fact alleged by the plaintiff in his plaint and also states any new facts in his favour or takes
legal objections against the claim of the plaintiff.
The importance of filing a written statement cannot be underestimated. The reason is that as
per settled law, a case different than the one pleaded in the written statement cannot be set up
at trial
Q) What are the grounds of Rejection of plaint? [6]
Ans. The provision of rejection of plaint is mandatory in nature. If any of the grounds specified
in clauses a to e of Order 7 Rule 11 are made out, court is bound to reject the plaint. The main
grounds for rejection of a plaint under Order 7 Rule 11 of the Code of Civil Procedure are:
1. The plaint does not disclose a cause of action. Cause of action refers to the material facts
that give rise to a legal claim. If the facts stated in the plaint do not establish a valid legal
claim, the court can reject the plaint.
2. The relief claimed is undervalued and the plaintiff does not make up the deficiency
within the time fixed by the court. The plaint must state the relief sought and its proper
valuation. Undervaluation can lead to rejection.
3. The relief claimed is properly valued but the plaint is returned for presentation to the
proper court and the plaintiff fails to present it to such court within the time fixed by
the court. If the plaint is filed in the wrong court, it can be returned to be presented in the
proper court. Failure to do so leads to rejection.
4. The suit appears from the statement in the plaint to be barred by any law. If the facts
show the suit is prohibited by any law, the plaint can be rejected.
5. The plaint is not filed in duplicate as required under Rule 1. Failure to file the plaint in
duplicate as mandated can be a ground for rejection.
6. The plaintiff fails to comply with the provisions of Rule 9. Rule 9 requires the plaintiff
to present a copy of the plaint for service on the defendant. Non-compliance can lead to
rejection.
7. Other grounds. The grounds for rejection specified in Rule 11 of Order 7 are not
exhaustive. On other relevant grounds also a plaint can be rejected. Thus, if the plaint is
signed by a person not authorised by the plaintiff and the defect is not cured within the time
granted by the court, the plaint can be rejected. Likewise, where the plaint is found to be
vexations and meritless, not disclosing a clear right to sue, the court may reject the plaint
under this rule.
Q) Who are Necessary Party and Proper Parties? [8]
Ans. Necessary Party
A necessary party is one without whom no effective order can be made in the suit. Their
presence is indispensable for the court to proceed with the case and make a final decision.

Examples of necessary parties include:

• Parties whose rights are directly affected by the suit and who must be heard before any
order can be made against them.
• Co-owners of property who are necessary for a complete adjudication of the dispute over
that property.
Proper Party
A proper party is one whose presence is not absolutely necessary to make an effective order,
but whose presence would enable the court to completely and adequately adjudicate all the
matters in dispute.
Examples of proper parties include:
• Parties who have an interest that may be affected by the judgment, but whose presence is
not essential for the court to decide the rights of the main parties.
• A lessee in possession of disputed property, whose presence could help the court fully
resolve the dispute, even though the lessee is not a necessary party.
In case of Govindaraju v. Alagappa AIR 1926, while interpreting the two basic conditions
for Order III, the court held that, the word 'and' makes it clear that both the conditions are
cumulative and not alternative. So, for inducing the provisions of Order III, both the conditions
should be made out explicitly.
The key distinction is that a necessary party is indispensable, while a proper party is not
absolutely required but their inclusion would allow for more complete adjudication. The court
has discretion to add proper parties under Order 1 Rule 10 of the Civil Procedure Code, even
if the plaintiff does not want them included.
Q) Who may be joined as Plaintiffs and Defendants? [8]
Ans.
Q) What are the pre-conditions to be followed in institutions of suit by or against the
Government? [10]
Q) Explain the provisions as lain down in the Civil procedure Code in the following Cases:
[16]
a. When neither plaintiff nor defendant appeared in court when the suit is called on
for hearing. [4]
When neither the plaintiff nor the defendant appears before the court when the suit is
called for hearing, the court is empowered to dismiss the suit under Rule 3 of Order IX
of the Code of Civil Procedure, 1908. The dismissal of the suit under this rule does not
put a bar on filing a fresh suit on the same cause of action as per Rule 4 of Order IX.
b. Where the defendant appears and the plaintiff does not appear when the suit is
called on for hearing. [4]
When the plaintiff does not appear but the defendant appears, the court may pass an ex-
parte order against the plaintiff. If the defendant denies the claim of the plaintiff, the
court shall dismiss the suit. But if the defendant admits the claim, the court may pass
an order against him on the ground of his admission, as per Order IX Rule 6 of the Code
of Civil Procedure, 1908.
c. Where the plaintiff appears and the defendant does not appear when the suit is
called on for hearing. [4]
When only the plaintiff appears but the defendant does not appear, then an ex-parte
order can be passed against the defendant. The court is empowered under Order IX Rule
6 of the Code of Civil Procedure, 1908 to pass an ex-parte decree against the defendant
d. What is the remedy open to the party in such circumstance? [4]
The party against whom an ex-parte decree or an order of dismissal has been passed
can apply to the court to set aside such order under Order IX Rule 13 of the Code of
Civil Procedure, 1908. The court may set aside the order if it is satisfied that there was
sufficient cause for the non-appearance of the party.The plaintiff can also apply for
setting aside the dismissal if he is able to satisfy the court that there was sufficient cause
behind his non-appearance. If the court is satisfied with the cause of non-appearance,
 then it may set aside the order of dismissal and schedule a day for the hearing of the
suit.

RES JUDICATA AND RES SUBJUDICE

Q) Write a brief note on the meaning, nature and object of Res Judicata. [16]
Ans. The rule of res judicata has a very ancient history. It was well understood by Hindu
lawyers and Mohammedan jurists. It was known to ancient Hindu Law as Purva Nyaya (former
judgment). Under the Roman law, “ex captio res judicata” means “one suit and one decision is
enough for any single dispute”. The doctrine has been accepted in all civilized legal system. In
India, it is governed under Section 11 of Civil Procedure Code, 1908 which provides that once
a matter is finally decided by a competent court, no party can be permitted to reopen it in a
subsequent litigation.
In Satyadhyan Ghosal v. Deorjin Debi, A.I.R. 1960, it was held that the principle of res
judicata is based on the need of giving finality to judicial decision. Further, in the absence of
such a rule, there will be no end to litigation and the parties would be put in constant trouble,
harassment, and expenses.
Object
The doctrine is founded on three maxims which are non-negotiable in any civilised system of
law-
1. nemo debet bis vexari pro una et eadem causa (no man should be vexed twice for the same
cause.)
2. interest republicae ut sit finis litium (it is in the interest of the state that there should be an
end to litigation.) and
3. res judicata pro veritate occipitur (a judicial decision must be accepted as correct.
Conditions for application of Res Judicata
1. There must be two suits: One former & other subsequent: Former suit means previously
decided suit. It doesn’t matter when the suit was instituted. What it matters is when the
decision came from the court.
2. Matter directly and substantially in the subsequent suit: It means that matter must be
directly related to the suit. It must not be collateral or incidental to the issue. For example,
‘A’ and her mother filed a suit against her father’s brother for claiming a share in the
property of her mother. The question of marriage expenses was not directly or substantially
in issue. The claim of partition was dismissed by the court. However, the principle of res
 judicata doesn’t bar ‘A’ to file a subsequent suit for her marriage expenses as the matter
was not directly in issue in the former suit
3. There must be same parties: The parties to a suit are those whose name appears on the
record of the suit at the time of the decision. A party who withdraws or whose name is stuck
off is not considered as a party. Further, a minor not represented by the guardian for the
suit is not a party to the suit. Where any decision made by the court in favor of or against
any party then it not only binds the party but also their successors too. For an instance, a
suit filed by any person for recovery of possession and ownership title and the court decided
in his favor, then his legal heirs also considered as the parties after his death and res judicata
will apply.
4. There must be the same title: ‘Same title’ means ‘in same capacity’. It has been held in
the number of cases that ‘a verdict against a man suing in one capacity will not stop him
when he sues in another capacity’. For example, ‘A’ file suit against ‘B’ as the owner of
property and suit is dismissed by the court. Later on, he filed a suit to claim his right as
mortgagee will not bar him to institute a subsequent case. So where the suit is filed in a
different capacity then it is considered to be a valid suit and doesn’t bar by this doctrine.
5. The decision must be made by the competent court: The Former decision must be given
by competent court having jurisdiction on the case. If the case is decided by the court has
no jurisdiction over the subject matter then res judicata will not apply. For an instance,
revenue courts exercising authority under the Act can be held to be a court of limited
jurisdiction and decision by it within its competence will operate as res judicata.
6. Heard and finally decided: The matter directly & substantially in issue in subsequent suit
must have been heard and finally decided by the court in a former suit. “Heard and finally
decided” means that the court has exercised its judicial mind & after argument and
consideration came to decision on contested matter and decision is made on the merits of
the case. In following cases the matter is deemed to be finally decided on merits even if the
former suit is disposed of in the following manner:
1. By ex parte
2. By dismissal
3. By decree on an award
4. By oath tender under section 8 on Indian Oath Act, 1873
5. By dismissal owing to plaintiff failed to produce evidence at the hearing.
Nature and Scope
“Res” means “subject-matter” or “dispute” and “Judicata” means “adjudged”, “decided” or
“adjudicated”. “Res Judicata” thus means “a matter adjudged” or “a dispute decided”.
The doctrine of res judicata is conceived in the larger public interest which requires that all
litigation must sooner than later come to an end. The principle is also founded on justice, equity
and good conscience which require that a party who has once succeeded on an issue should not
be harassed by multiplicity of proceedings involving the same issue.
In M. Nagabhushana v. State of Karnataka, the Supreme Court held that the doctrine of res
judicata is of universal application and has been accepted by all civilized systems of
jurisprudence. The principle of finality of litigation is based on the high principle of public
policy. In the absence of such principle, great oppression might result under the colour and
pretence of law inasmuch as there would be no end to litigation. Rich and malicious litigants
may succeed in infinitely vexing their opponents by repetitive suits and appeals. This may
compel the weaker party to relinquish his right. The doctrine of res judicata has been evolved
to prevent such anarchy. The principle of res judicata seeks to promote honesty and fair
administration of justice and to prevent abuse of process of law.
Illustration
A sues B for possession of certain properties on the basis of a sale deed in his favour. B impugns
the deed as fictitious. The plea is upheld and the suit is dismissed. A subsequent suit for some
other properties on the basis of the same sale deed is barred as the issue about the fic- titious
nature of the sale deed was actually in issue in the former suit directly and substantially.
Extent and applicability
The doctrine of res judicata is a fundamental concept based on public pol- icy and private
interest. It is conceived in the larger public interest which requires that every litigation must
come to an end. It, therefore, applies to civil suits, execution proceedings, arbitration
proceedings, taxation mat- ters, industrial adjudication, writ petitions, administrative orders,
interim orders, criminal proceedings, etc.
The doctrine of res judicata codified in Section 11 of the Code of Civil Procedure is not
exhaustive."
Res judicata and rule of law
The doctrine of res judicata is of universal application. In the historic decision of Daryao v.
State of U.P.", the Supreme Court has placed the doctrine of res judicata on a still broader
foundation. In that case, the petitioners had filed writ petitions in the High Court of Allahabad
under Article 226 of the Constitution and they were dismissed. Thereafter, they filed
substantive petitions in the Supreme Court under Article 32 of the Constitution for the same
relief and on the same grounds. The respondents raised a preliminary objection regarding
maintainability of the petition by contending that the prior decision of the High Court would
operate as res judicata to a petition under Article 32. The Supreme Court upheld the contention
and dismissed the petitions.
Speaking for the Constitution Bench, Gajendragadkar, J. (as he then was) observed:
"The binding character of judgments pronounced by courts of competent jurisdiction is itself
an essential part of the rule of law, and the rule of law obviously is the basis of the
administration of justice on which the Constitution lays so much emphasis."
Q) Discuss the various principles of Res Judicata. [8]
Ans. The principle of res judicata seeks to promote the fair administration of justice and honesty
and to prevent the law from abuse. The principle of res judicata applies when a litigant attempts
to file a subsequent lawsuit on the same matter, after having received a judgment in a previous
case involving the same parties.
Conditions for application of Res Judicata
1. There must be two suits: One former & other subsequent: Former suit means previously
decided suit. It doesn’t matter when the suit was instituted. What it matters is when the
decision came from the court.
2. Matter directly and substantially in the subsequent suit: It means that matter must be
directly related to the suit. It must not be collateral or incidental to the issue. For example,
‘A’ and her mother filed a suit against her father’s brother for claiming a share in the
property of her mother. The question of marriage expenses was not directly or substantially
in issue. The claim of partition was dismissed by the court. However, the principle of res
judicata doesn’t bar ‘A’ to file a subsequent suit for her marriage expenses as the matter
was not directly in issue in the former suit
3. There must be same parties: The parties to a suit are those whose name appears on the
record of the suit at the time of the decision. A party who withdraws or whose name is stuck
off is not considered as a party. Further, a minor not represented by the guardian for the
suit is not a party to the suit. Where any decision made by the court in favor of or against
any party then it not only binds the party but also their successors too. For an instance, a
suit filed by any person for recovery of possession and ownership title and the court decided
in his favor, then his legal heirs also considered as the parties after his death and res judicata
will apply.
4. There must be the same title: ‘Same title’ means ‘in same capacity’. It has been held in
the number of cases that ‘a verdict against a man suing in one capacity will not stop him
 when he sues in another capacity’. For example, ‘A’ file suit against ‘B’ as the owner of
property and suit is dismissed by the court. Later on, he filed a suit to claim his right as
mortgagee will not bar him to institute a subsequent case. So where the suit is filed in a
different capacity then it is considered to be a valid suit and doesn’t bar by this doctrine.
5. The decision must be made by the competent court: The Former decision must be given
by competent court having jurisdiction on the case. If the case is decided by the court has
no jurisdiction over the subject matter, then res judicata will not apply. For an instance,
revenue courts exercising authority under the Act can be held to be a court of limited
jurisdiction and decision by it within its competence will operate as res judicata.
Q) Explain the principle of Res-Judicata with the help of decided cases and suitable
illustration.[12]
Ans. Intro
Nature and Scope
The doctrine of res judicata is conceived in the larger public interest which requires that all
litigation must sooner than later come to an end. The principle is also founded on justice, equity
and good conscience which require that a party who has once succeeded on an issue should not
be harassed by multiplicity of proceedings involving the same issue.
The scope has been decided in the case of Gulam Abbas vs State of Uttar Pradesh. In this
case the court incorporated the rules as evidence as a plea of an issue already tries in an earlier
case. Judgment of this case was difficult as the judges should apply res judicata. It was decided
that res judicata is not exhaustive and even if the matter is not directly covered under the
provisions of the section it will be considered as a case of res judicata on general principles.
Illustration
A sues B for possession of certain properties on the basis of a sale deed in his favour. B impugns
the deed as fictitious. The plea is upheld and the suit is dismissed. A subsequent suit for some
other properties on the basis of the same sale deed is barred as the issue about the fic- titious
nature of the sale deed was actually in issue in the former suit directly and substantially.
Conditions (1,2,3,4,5) as in the question before.
Conclusion
Q) Write a note on applicability of Res-Judicata in writ petition in India. [4]
Ans. The doctrine of res judicata is of universal application. In the historic decision of Daryao
v. State of U.P.", the Supreme Court has placed the doctrine of res judicata on a still broader
foundation. In that case, the petitioners had filed writ petitions in the High Court of Allahabad
under Article 226 of the Constitution and they were dismissed. Thereafter, they filed
substantive petitions in the Supreme Court under Article 32 of the Constitution for the same
relief and on the same grounds. The respondents raised a preliminary objection regarding
maintainability of the petition by contending that the prior decision of the High Court would
operate as res judicata to a petition under Article 32. The Supreme Court upheld the contention
and dismissed the petitions.
Speaking for the Constitution Bench, Gajendragadkar, J. (as he then was) observed:
"The binding character of judgments pronounced by courts of competent jurisdiction is itself
an essential part of the rule of law, and the rule of law obviously is the basis of the
administration of justice on which the Constitution lays so much emphasis."
However, it may be noted that the doctrine of Res Judicata will not apply to a writ of “Habeas
Corpus”.
Q) Discuss the Doctrine of Res-Judicata. What are the conditions for application of Res-
Judicata? How does it differ from Res-Subjudice? [4+6+6]
Ans. The rule of res judicata has a very ancient history. It was well understood by Hindu
lawyers and Mohammedan jurists. It was known to ancient Hindu Law as Purva Nyaya (former
judgment). Under the Roman law, “ex captio res judicata” means “one suit and one decision is
enough for any single dispute”. The doctrine has been accepted in all civilized legal system. In
India, it is governed under Section 11 of Civil Procedure Code, 1908 which provides that once
a matter is finally decided by a competent court, no party can be permitted to reopen it in a
subsequent litigation.
In Satyadhyan Ghosal v. Deorjin Debi, A.I.R. 1960, it was held that the principle of res
judicata is based on the need of giving finality to judicial decision. Further, in the absence of
such a rule, there will be no end to litigation and the parties would be put in constant trouble,
harassment, and expenses.
Object
The doctrine is founded on three maxims which are non-negotiable in any civilised system of
law-
1. nemo debet bis vexari pro una et eadem causa (no man should be vexed twice for the same
cause.)
2. interest republicae ut sit finis litium (it is in the interest of the state that there should be an
end to litigation.) and
3. res judicata pro veritate occipitur (a judicial decision must be accepted as correct.
Illustration
‘A’ sued ‘B’ as he didn’t pay rent. ‘B’ pleaded for the lessening of rent on the ground as the
area of the land was less than the mentioned on the lease. The Court found that the area was
greater than shown in the lease. The area was excess and the principles of res judicata will not
be applied.
Difference between Res Judicata and Res Subjudice
1. Definition:
Res Judicata refers to a matter that has already been decided by a competent court and cannot
be re-litigated between the same parties, whereas Res Subjudice refers to a matter that is
currently pending before a court and prevents parallel proceedings on the same issue.
2. Application:
Res Judicata applies when a previous suit has been conclusively decided, leaving no room for
further appeals, whereas Res Subjudice applies when there are two pending suits between the
same parties on the same matter.
3. Essential Conditions:
Res Judicata requires that the matter was directly and substantially in issue, the previous suit
was between the same parties, the court had jurisdiction, and the matter was heard and decided,
whereas Res Subjudice requires that there are two suits, the matter in issue is the same, the
suits are pending before competent courts, and the parties are the same.
4. Purpose:
Res Judicata aims to bring finality to litigation and prevent re-litigation of the same issue,
whereas Res Subjudice aims to avoid conflicting judgments and prevent the duplication of
judicial processes.
5. Summary:
Res Judicata applies after a matter has been conclusively decided, barring re-litigation,
whereas Res Subjudice applies when a matter is still pending before the courts, barring parallel
proceedings.
Q) Distinguish between Res- Judicata and Estoppel? [6]
Ans. Res Judicata is a legal principle that prevents a court from taking action in a case that
another court has already decided. It means that a matter that has been adjudicated by a
competent court cannot be pursued further by the same parties.

The doctrine of Res Judicata is codified under Section 11 of the Code of Civil Procedure, 1908.
Purpose: The purpose of Res Judicata is to uphold the finality of judgments, prevent
multiplicity of proceedings, and ensure consistency in judicial decisions.
Key Elements:
1. The matter directly and substantially in issue in the subsequent suit or issue must have been
directly and substantially in issue in the former suit.
2. The former suit must have been between the same parties or their representatives.
3. The former suit must have been decided by a court of competent jurisdiction.
4. The matter in the former suit must have been heard and finally decided.
Binding Effect: The principle of Res Judicata is binding on the parties involved in the previous
litigation and their privies.
Estoppel
Estoppel is a legal principle that prevents a person from asserting or denying a fact because of
the person's previous conduct, action, or representation.
The doctrine of Estoppel is codified under Sections 115-117 of the Indian Evidence Act, 1872.
Purpose: The purpose of Estoppel is to prevent fraud and uphold the principle of equity by
prohibiting a person from going back on their previous statements or actions.
Key Elements:
1. A representation or conduct by one party.
2. Reliance on such representation or conduct by another party.
3. Detriment or prejudice caused to the party relying on the representation or conduct.
Binding Effect: The principle of Estoppel is binding on the party who made the representation
or engaged in the conduct, and not necessarily on the other party.
Key Differences:
1. Origin: Res Judicata originates from a court's previous decision, while Estoppel originates
from the conduct or representation of the parties.
2. Scope: Res Judicata applies to the entire subject matter of the previous suit, while Estoppel
applies only to the specific issue or representation.
3. Binding Effect: Res Judicata is binding on the parties and their privies, while Estoppel is
binding only on the party who made the representation or engaged in the conduct.
4. Purpose: Res Judicata aims to uphold the finality of judgments, while Estoppel aims to
prevent fraud and uphold the principle of equity.
5. Applicability: Res Judicata can be applied by the court on its own, while Estoppel can only
be pleaded by the party who has been prejudiced by the representation or conduct.
In summary, while both Res Judicata and Estoppel are legal principles that aim to prevent re-
litigation, they differ in their origin, scope, binding effect, purpose, and applicability.
Q) Does consent decree operate as Res-Judicata [4]
Ans. The Bombay High Court in Chiranji Lal v Life Insurance Corpn of IndiaAIR 1952
has, however, held that a consent decree made in a representative suit, whether under Order 1,
Rule 8 or under section 92 of CPC, could be res dedicated on the ground of estoppel. Law
commission of India in its 144th report had recommended that the matter of consent decree is
of relevance. It had been subjected to controversies that whether res judicata applies to consent
decree and there are different views regarding it. Therefore, the commission recommended to
add explanation in this section with respect to it. The present status is that the section does not
apply, to consent decrees for. It cannot be said in the case of such decrees that the matters in
issue between the parties ‘’have been heard and finally decided’ ’within the meaning of the
section. A compromise decree, if not vitiated by fraud, misrepresentation, misunderstanding or
mistake is binding and operates as judicata as also estoppel between the parties
Q) Short Notes on: [8]
(i) Constructive Res Judicata
The principle of res judicata, rooted in the Latin maxim “res judicata pro veritate accipitur,”
translates to “a matter adjudged is taken for truth.” Essentially, it prevents the same matter from
being litigated repeatedly between the parties.
Constructive res judicata expands upon this principle by preventing parties from advancing
arguments that could and should have been presented in an earlier proceeding but were not.
This doctrine enhances the finality of decisions and discourages dilatory tactics aimed at
prolonging legal battles.
Applicability and Requirements of Constructive Res Judicata
Certain conditions must be met to invoke the principle of constructive res judicata under
Section 11 of the CPC.
• Firstly, the parties involved in both proceedings must be the same.
• Secondly, the subject matter of the subsequent proceeding should be identical to that of the
earlier proceeding.
• Thirdly, the issue raised in the subsequent proceeding should have been directly and
substantially in issue in the earlier proceeding.
• Lastly, the earlier proceeding must have resulted in a final decision on the merits.
The Rule in Practice for Constructive Res Judicata
A notable case that highlights the application of the rule of constructive res judicata is the case
of the State of Uttar Pradesh v. Nawab Hussain. In this case, the Deputy Inspector General
(D.I.G) dismissed an employee named M from service. He challenged this dismissal through a
writ petition, alleging that he was not given a reasonable opportunity to be heard.
The court dismissed his petition. Later, he filed another petition, this time arguing that the DIG
did not possess the authority to dismiss him as he was appointed by the Inspector General of
Police (I.G.P).
The question arose whether the second petition was barred by constructive res judicata. While
the trial court, the first appellate court and the High Court opined that it wasn’t, the Supreme
Court took a different stance. The Supreme Court held that the doctrine of constructive res
judicata applied to the case.
It ruled that M could have raised the argument about the DIG’s authority in his initial writ
petition. Since he didn’t, the issue was considered to be constructively adjudicated upon, and
he couldn’t raise it in a subsequent proceeding. This case underscores the importance of
exhausting all available arguments and defences in a single proceeding to avoid the application
of constructive res judicata.
Rationale and Significance of Constructive Res Judicata
The principle of constructive res judicata is grounded in the larger objective of ensuring
efficiency, finality and fairness in judicial proceedings. Allowing parties to raise new
arguments in each successive proceeding would not only lead to endless litigation but also
undermine the sanctity of judgments.
Exceptions and Limitations of Constructive Res Judicata
The doctrine of constructive res judicata is not an absolute bar and has its exceptions. If a new
plea arises from events that occurred after the previous proceeding, it might not be barred.
Similarly, if there is a fundamental error in the earlier judgment or if the issue was not directly
and substantially in question, the doctrine may not apply.
The judiciary has the discretion to evaluate the circumstances and equities of each case to
determine whether the application of constructive res judicata is fair and just.
Conclusion
The doctrine of constructive res judicata, enshrined in Section 11 of the CPC, stands as a
testament to the Indian legal system’s commitment to promoting efficiency, fairness and
finality in judicial proceedings. By barring parties from raising issues that could have been
raised earlier, this doctrine reduces the chances of abuse and prevents endless litigation.
(ii) Res- Subjudice.
Subjudice in latin means ‘under judgment’. It denotes that a matter or case is being considered
by court or judge. when two or more cases are filed between the same parties on the same
subject matter, the competent court has power to stay proceeding. However the doctrine of res-
subjudice means stay of suit. This Code provides rules for the civil court in respect of the
doctrine of res subjudice. This rule applies to trial of a suit not the institution thereof.

LIMITATION

Q) “Law of Limitation bars remedy but does not extinguish right.” – Explain. [16]
Ans. The Law of Limitations limits or prescribes a time after the lapse of which suit or other
proceedings cannot be maintained in a Court of law or the persons liable to sue shall become
exempt from answering therein. It does not postpone or suspend the right of claimants, it merely
prescribes a period for the institution of suit and forbids them from being brought after periods,
each of which starts from some definite event. It only restrains the holder of a right from
enforcing his right by recourse to law after prescribed period of limitation
The statement "Law of Limitation bars remedy but does not extinguish right" signifies an
important principle in the realm of legal jurisprudence. It underscores the distinction between
the right itself and the means to enforce that right through legal action. The essence of this
principle is that while the law may limit the time within which a legal claim can be brought to
court, it does not obliterate the underlying right itself.
Section 3 of the Limitation Act articulates this principle by stating that if any suit, appeal, or
application is brought before the court after the expiry of the prescribed time, the court is
obligated to dismiss such suit, appeal, or application as time-barred. This section embodies the
fundamental rule that the statute of limitations serves to bar the remedy through legal
proceedings but does not extinguish the substantive right. For instance, if an individual has a
right to recover a debt, the law prescribes a specific period within which they must initiate legal
proceedings to enforce that right. If they fail to do so within the stipulated period, the court will
refuse to entertain the claim, rendering the remedy unavailable. However, the debtor's
obligation to pay the debt does not vanish merely because the period for legal enforcement has
lapsed.
Nature of Act: "The rule of limitation is a rule of procedure, a branch of adjective law. The
intention of the law of limitation is not to create a right where there is none, nor to extinguish
a right where there is one, but to interpose a bar after a certain period to enforce an existing
right."1 The plea of limitation can be raised only as against the plaintiff and not against the
defendant. Law is "lex feri": It means whether an obligation is to be enforced or not depends
exclusively upon the law of limitations of the country in which the suit is brought (lex feri) Act
is a Complete Code: The Limitation Act is an exhaustive code governing law of limitation in
India in respect of all matters specifically dealt with by it and the Indian Courts are not
permitted to travel beyond its provisions to add or to supplement them.
The rule of limitation is a rule of procedure. It does not either create or extinguish a right. In
the words of Sir Richard Couch in Harrynath v. Mather, "The intention of the law of
limitation is not to give right where there is none nor to extinguish a right where there is one
but to interpose a bar after a certain period to a suit to enforce an existing right."
The statute of limitation thus prescribes only the period within which legal proceedings must
be initiated. It does not impose any restriction on the period for setting up a defence against
such proceedings. This means that while the right to initiate a suit may be barred by limitation,
the original right to the claim persists.
For example, if a creditor initiates a suit to recover a debt after the limitation period has
expired, the court will dismiss the suit as time-barred. However, if the debtor acknowledges
the debt and makes a payment, the creditor is entitled to retain it. The debtor cannot later
reclaim the payment on the basis that the debt was time-barred. This scenario demonstrates that
the right to the debt continues to exist as a moral obligation or as consideration for a fresh
enforceable obligation, even though the judicial remedy to enforce it has been barred by the
statute of limitation.
Legal precedents further elucidate this principle.
In the case of Punjab National Bank and Ors v. Surendra Prasad Sinha, the Supreme Court
of India underscored that the rules of limitation are not intended to destroy the rights of the
parties. The court held that Section 3 of the Limitation Act bars the remedy but does not
extinguish the right itself. This judgment highlights that the substantive right remains intact
even when the procedural right to enforce it is barred.
Similarly, in another case, the court held that a defendant in a suit can put forward any defence,
even if the defence is barred by limitation. This ruling reiterates that there is no limitation
against setting up a defence, thereby affirming that the right persists even when the remedy is
unavailable.
Exception
An important exception to this general rule is found in Section 27 of the Limitation Act. Under
certain circumstances, this section provides that the right itself may be extinguished after the
lapse of the prescribed period. However, this is a specific exception and does not represent the
general principle.
Section 27-"At the determination of the period hereby limited to any person for instituting a
suit for possession of any property his right to such property shall be extinguished."
In First National Bank Ltd. v. Seth Santlal, AIR 1954 Punjab 328 it was observed: "Section
27 of the Limitation Act is, however, an exception to the general rule that in personal actions,
the Limitation Act bars only the remedy and does not extinguish the right. In a suit for
possession of any property on the determination of the period of limitation not only the remedy
but the right also, is extinguished under Section 27. But a debt does not cease to be due, because
it cannot be recovered after the expiration of the period of limitation provided for instituting a
suit for its recovery. After a debt becomes barred a person is still deemed to owe."
In practical terms, the persistence of the right despite the bar on remedy has several
implications. For instance, if a debtor owes multiple debts to a creditor and makes an
unspecified payment, the creditor can allocate it towards any of the debts, even if the recovery
of such debts is barred by limitation. This practice is permissible because the right to the debt
remains, even though the judicial remedy to enforce it is no longer available.
Moreover, the principle allows for defensive rights to be asserted even when the right to initiate
a suit is barred. A defendant can use a time-barred right as a defence in legal proceedings,
highlighting that the limitation period does not apply to defenses.
In conclusion, the law of limitation serves to ensure that legal claims are made within a
reasonable time frame, promoting legal certainty and fairness. However, it only restricts the
remedy through judicial proceedings and does not extinguish the underlying right itself. This
principle allows for the continued recognition of rights outside the strict time limits for
enforcement, preserving the balance between fairness and legal finality.
Q) What is Legal Disability? [6]
Ans. Legal Disability under Limitation Act refers to the lack of legal capacity to perform an
action due to insufficient physical and mental abilities. It denotes the incapacity of a person to
exercise all the legal rights that an average person possesses.
Section 6 of the Act addresses situations where a person entitled to initiate a suit or file an
application for the execution of a decree is a minor, insane or mentally disabled. It states that
such a person can file a suit or make an application once the disability ends, as specified in the
Act’s schedule. If a person is affected by multiple disabilities, they can file a suit or make the
application when both disabilities cease.
In cases where the legal disability continues until the person’s death, their legal representatives
can file the suit or make the application after the person’s demise. If the legal representatives
are affected by a disability other than death, the aforementioned provisions still apply.
Furthermore, if a person with a disability passes away after the disability has ended but before
the deadline set by this section, their legal representative may file a lawsuit or application
within the same timeframe as if the person were still alive.
It is important to note that, according to this section, the term “minor” encompasses a child in
the womb of the mother.
Kinds of Legal Disabilities
Section 6(1) of the Limitation Act, 1963 provides three types of legal disabilities:
Minor
The first legal disability under Limitation Act is related to the age of an individual, known as
“minor.” According to the Indian Majority Act, 1875, an individual attains majority at the age
of eighteen. It is important to note the following points as per Section 3(2) of the Indian
Majority Act:
• The day of birth is considered as a whole day.
• The individual is considered a major when the 18th anniversary of their birth begins.
The Indian Majority Act, 1875 is applicable to individuals of all religions and can be considered
a secular law. However, personal laws may have different provisions regarding the age of
majority. The Indian Majority Act also considers a child in the womb as a minor. In cases
where the court appoints a guardian for the welfare of a minor before they turn eighteen, the
age of the minority is extended to twenty-one.
Insanity
The second legal disability is “insanity.” The SC, in the case of S.K. Yadav v. State of
Maharashtra, discussed the concept of legal insanity. The court held that legal insanity is
recognized by the courts, as distinct from medical insanity. There is no specific test to prove
legal insanity, but even if medical insanity is established in lower courts, it must be proven
again in higher courts. To determine whether a person is legally insane, their behaviour,
antecedents and events before, during and after the incident must be considered.
Idiot
In the case of Hari Singh Gond v. State of Madhya Pradesh, the SC defined four sub-types
of non-compos mentis, including “idiot.” An idiot is someone who is unable to count the days
of the week, lacks sane memory since birth and cannot count up to twenty.
A lunatic experiences periods of sanity interspersed with bouts of erratic behaviour, such as in
the case of epilepsy. Madness is considered a permanent condition. Lunacy and madness are
categorized as acquired insanity, while idiocy is seen as natural insanity. This means that while
a person can become lunatic or mad at any time during their lifetime, idiocy is present since
birth.
The ‘Law of Limitation’ provides an aggrieved party with the time limit for different suits
within which the party can approach the court for relief. The suit is dismissed by
the competent court where the time limit provided by the limitation act expires. A situation
may exist where, due to his physical or mental condition, the person is not able to file a suit or
make an application. In such cases, the law may not be the same and additional rights and
benefits may be accorded to individuals with disabilities. The concept of legal disability is
provided under Section 6 of the Limitation Act,1963 which further extends to Sections 7, 8
and 9.
Q) Discuss briefly the law relating to legal disability proved under Sections 6 and 9 of
the Limitation Act, 1963. [16]
Ans. Generally limitation begins to run from the date of cause of action. But the Indian
Limitation Act itself provides certain exceptions to this general principle. Thus, in a case where
the aggrieved party is suffering with some legal disability, the period of limitation does not run
from the date of the accrual of the cause of action but runs from a subsequent date, on which
the disability ceases. In this connection Sections 6, 7 and 8 of Indian Limitation Act are the
counterpart of each other and they unitedly form one unit. The general rule regarding disability
is provided by Section 6 which reads as under:
1. Where a person entitled to institute a suit or make an application for the execution of decree
is at the time from which the prescribed period is to be reckoned, a minor or insane, or an
idiot, he may institute the suit or make the application within the same period after the
disability has ceased, as would otherwise have been allowed from the time specified there
for in the third column of the schedule.
2. Where such person is, at the time from which the prescribed period is to be reckoned,
affected by two such disabilities, or where, before his disability has ceased, he is affected
by another disability, he may institute the suit or make application within the same period
after both disabilities have ceased as would otherwise have been allowed from the time so
specified.
3. Where the disability continues up to the death of that person his legal representative may
institute the suit or make the application within the same period after the death, as would
otherwise have been allowed from the time so specified.
4. Where the legal representative referred to in sub- section (3) is at the death of person to
whom he represents, affected by any of such disabilities the rules contained in sub-sections
(1) and (2) shall apply.
5. Where a person under disability, dies after the disability ceases but within the period
allowed to him under this Section, his legal representative may institute the suit or make
the application within the same period after the death, as would otherwise have been
available to that person had he not died.
Explanation: for the purposes of this Section 'minor' includes a child in the womb.” So,
Section 6 does not prevent running of limitation but only extends the period of limitation 'on
the ground of disability of person entitled to sue or apply’. Section 6 excuses an insane person,
minor and an idiot to file a suit or make an application for the execution of a decree within the
time prescribed by law and enables him to file the suit or make an application after the disability
has ceased, counting the period of time from the date on which the disability ceased. If one
disability supervenes on another disability or one disability is followed by another without
leaving a gap the suit or application for execution may be filed after both disabilities have
ceased to exist. If the disability or disabilities continue till the person's death then the legal
representative of the deceased on whom the title devolves is allowed to file a suit or make an
application for execution within the time allowed by law counting it from the death of the
person entitled. The mere fact that there is a guardian for the person under disability does not
deprive such person of the indulgence granted by Section 6.
Sometimes a situation arises when one of the several persons jointly entitled to institute a suit
or to execute a decree is under disability. In this connection Section 7 of Act says that if one of
the several persons jointly entitled to institute a suit or make an application for the execution
of a decree, is under any such disability and a discharge can be given without the concurrence
of such person, the time will run against all of them.
However, if such discharge cannot be given, time will not run as against any of them until one
of them becomes capable of giving such discharge without the concurrence of the other or until
the disability has ceased.
So, Section 7 of Limitation Act would apply when the right to sue is joint irrespective of
whether the substantive right is joint or not.
Section 8 of Indian Limitation Act makes it clear that Rules contained in Sections 6 and 7 are
subject to the following conditions:
1. They cannot be applied to the suits to enforce rights of pre-emption.
2. They cannot be applied to any of the cases in which extension of period of imitation for more
than three years from the ceasation of disability or the death of a person as the case may be, is
sought for.
Continuous Running of Time (Section 9)
It is a fundamental principle of law of limitation that "Once the time has commenced to run it
will not cease to do so by reason of any subsequent event." In other words, the time runs
continuously and without any break or: interruption until the entire prescribed period has run
out and no disability or inability to sue occurring subsequently can stop it. This rule has been
embodied in Section 9 of the Act in the following words:
"Where once time has begun to run, no subsequent disability or inability to institute a suit or
make an application stops it."
Provided that, where letters of administration to the estate of a creditor have been granted to
his debtor, the running of the period of a limitation for a suit to recover the debt shall be
suspended while administration continues."
This Section applies not only to suits but to applications as well. This has not been expressly
provided in the Section.
If at the date on which the cause of action arose the plaintiff was under no disability, or inability,
then time will naturally begin to run against him because there is no reason why the ordinary
law should not have full operation. Section 9 says that once time has begun to run, no
subsequent disability or inability to sue can stop its running. This applies to a person himself
as well as to his representatives-in-interest after his death. The Section contemplates a case of
subsequent and not of initial disability, that is, it contemplates those cases where the disability
occurred after the accrual of the cause of action; whereas cases of initial disability have been
provided for by Section 6.
Disability or inability to sue: Disability has been defined as the want of legal qualification to
act and inability of the physical person to act. Thus, according to Calcutta High Court in
Pooran Chandra v. Sasson, AIR 1919, disability is the state of being minor, insane or idiot,
whereas illness, poverty etc. are instances of inability.
In Union of India v. Tata Engineering and Locomotive Co. Ltd. AIR 1989 it was observed
"true it is that in terms of Section 9 when time has begun to run, no subsequent disability or
inability to institute a suit or make an application stops it but Section 9 does not provide for a
computation of period of limitation."
Exceptions: The principle of Section 9 is strictly applied and no exceptions other than those
which the Act itself prescribes can be recognised. Thus, the running of time is suspended in
following eight cases
1. The proviso to Section 9 contains exception to the general rule that once time begins to run,
no subsequent disability or inability to sue can stop it. The proviso lays down that when
administration of an estate has been given to a debtor of the deceased, no time will run
 against such a debtor until the administration of estate which has been entrusted to him has
been finished. In such cases, the law prevents the duty of properly administering the estate
to come into conflict with the right of the person to sue for the debt, the hand to give and
the hand to receive is the same.
2. The time spent in obtaining a copy of the decree, sentence or order appealed from or sought
to be reviewed shall be excluded while computing the period of limitation prescribed for
an appeal or an application for leave to application and an application for review of
judgment. In the same way the time spent in obtaining the copy of the award shall be
excluded, while computing the period of limitation to file an application to set aside an
award (Section 12).
3. The time taken for prosecuting an application for leave is to be excluded if leave is
necessary while computing the period of limitation for a suit or appeal (Section 13).
4. When the plaintiff has been prosecuting with due diligence another same proceedings the
time spent in it shall be excluded while computing the period of limitation (Section 14).
5. When an injunction order has been obtained to stay the institution of suit, the time spent in
obtaining injunction or order shall be excluded while computing the period of limitation
[Section 15(1)].
6. When notice is served before the institution of a suit, the limitation shall be suspended
during the period of notice (Section 15(1).
7. The period of limitation shall be suspended during the time for which the proceedings to
set aside the sale have been prosecuted in a suit for possession by purchaser at an execution
sale [Section 15(4)].
8. If the defendant is absent from India or in the territories beyond India, under the
administration of the Central Government, the time up to which he has been absent shall
be excluded while computing the period of limitation (Section 15(5)).
Q) Discuss the provisions of law relating to computation of period of limitation under
the Limitation Act, 1963. [8]
Ans.
Q) Explain the words 'Extension of Prescribed Period' under Section 5 of the Limitation
Act, 1963. [8]
Ans. The Code of Civil Procedure confers a right to appeal, but does not prescribe a period of
limitation for filing an appeal. The Limitation Act, 1963, however, provides the period of filing
up appeals. It states that the appeals against a decree or order can be filed in a High Court
within ninety days and in any other court in thirty days from the date of the decree or order
appealed against.
It is for general welfare that a period be put on litigation. Further, it is a general principle of
law that law is made to protect only diligent and vigilant people. Equity aids the vigilant and
not the indolent. Law will not protect people who are careless about their rights. (Vigilantibus
non domientibus jur A subventiunt). Moreover, there should be certainty in law and matters
cannot be kept in suspense indefinably. It is, therefore, provided that Courts of Law cannot be
approached beyond fixed period. In civil matters, the limit is provided in Limitation Act, 1963.
The 'Law of Limitation' prescribes the time-limit for different suits within, which an aggrieved
person can approach the court for redress or justice. The suit, if filed after the exploration of
time-limit, is struck by the law of limitation. It's basically meant to protect the long and
established user and to indirectly punish persons who go into a long slumber over their rights.
The statutory law was established in stages. The very first Limitation Act was enacted for all
courts in India in 1859. And finally took the form of Limitation Act in 1963.
A citizen is not expected to master the various provisions which provide for limitation in
different matters but certain basic knowledge in this regard is necessary. For instance, Section
12 of the Limitation Act lays down certain guidelines regarding computation of limitation
period. It says that in computing the period of limitation for any suit, appeal or application, the
day from which such period is to be reckoned, shall be excluded.
Further, the day on which the judgment complained of was pronounced and the time requisite
for obtaining a copy of the decree, sentence or order appealed from shall be excluded. However,
any time taken by the court to prepare the decree or order before an application for a copy
thereof is made shall not be excluded.
Section 14 of the act, similarly, says that in computing the period of limitation for any suit, the
time during which the plaintiff has been prosecuting in civil proceedings, whether in a court of
first instance or of appeal or revision against the defendant shall be excluded where the
proceedings relate to the same matter in a court which is unable to entertain it on account of
defect of jurisdiction or other cause of a like nature.
'Sufficient Cause': It is necessary to get the benefit of this Section that the court must be
satisfied with the 'sufficient cause' for not preferring the appeal or application. The term
'sufficient cause' used here has not been defined in this Act. Its meaning, therefore, can be
accepted as a cause, which is beyond the control of the party invoking the aid of this Section.
This term 'sufficient cause' must of course, be given a liberal meaning so as to advance
substantial justice when any negligence or inaction or want of bona fide is 'not imputable to the
appellant. The sufficient cause can be determined from the facts and circumstances of a
particular case.
So any appeal or application (other than one made under Order XXI of C,P.C.) may be admitted
after prescribed period if appellant or applicant as the case may be shows "sufficient cause" for
not preferring appeal or making application within the prescribed period. But mere proof of
existence of "Sufficient Cause" for not filing the proceeding within the prescribed period does
not, under the section, ipso facto compel the Court to extend the time. The court has a discretion
to admit or refuse the proceeding even' if sufficient cause is shown.
Discretion is conferred on the Court before which an application for condoning delay is made
and if the Court after keeping in view relevant principles exercises its discretion granting relief
unless it is shown to be manifestly unjust or perverse, the Supreme Court would be loathe to
interfere with it."
Explanation to Section 5 says that "the fact that the appellant or the applicant was misled by
any order practice or judgment of the High Court in ascertaining or computing the prescribed
period may be "sufficient cause" within the meaning of this Section ", The following are some
examples of what is and what is not "Sufficient Cause":
1. Illness: Illness is considered as 'sufficient cause' to get benefit of Section 5, but mere plea
of illness is not sufficient cause for not filing proceeding in time unless it is shown that the
appellant or applicant was utterly disabled to attend to any duty.
2. Imprisonment: A person can be given the benefit of Section 5 if he is undergoing
imprisonment due to some criminal act. The time spent by him in the jail may be deducted
from the prescribed period of time.
3. Mistaken Legal Advice: A mistaken advice given by a legal practitioner may in
circumstances of particular case give rise to 'Sufficient Cause' within the meaning of
Section 5. In State of WB. v. The Administrator, Howrah Municipality, AIR 1972, it
was held that if a party had acted in a particular manner on a wrong advice given by his
legal advisor, he cannot be held guilty for negligence so as to disentitle the party to plead
sufficient cause under Section 5 provided that no negligence, nor inaction nor want of
bonafides is imputable to a party.
4. Illiteracy: The fact that appellant was illiterate is not sufficient reason to condone the delay.
5. Delay in obtaining copies: When a delay is caused:
i) in obtaining a copy of the order or decree of a court and such delay was caused by the
officer of the court.
ii) by the court itself in issuing orders.
iii) due to the method wrongly adopted in procuring the copy of the decree or order of the
court. Such delay shall be deemed as sufficient cause for granting benefit of Section 5
 of this Act. The power given to the courts under Section 5 above is discretionary yet it
has to be exercised in a judicial manner keeping in view the special circumstances of
each case.
In Collector, Land Acquisition v. Mst. Katiji, AIR 1987, their Lordships of the Supreme
Court laid down the following guiding principles:
1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.
2. Refusing to condone delay can result in a meritorious matter being thrown out at the very
threshold and cause of justice being defeated. As against this when delay is condoned the
highest that can happen is that a cause would be decided on merits after hearing the parties.
3. "Every day's delay must be explained" does not mean that a pedantic approach should be
made. Why not every hour's delay, every second's delay? The doctrine must be applied in
a rational common sense pragmatic manner.
4. When substantial justice and technical considerations are pitted against each other, cause
of substantial justice deserves to be preferred for the other side cannot claim to have vested
right in injustice being done of a non-deliberate delay.
5. There is no presumption that delay is occasioned deliberately, or on account of culpable
negligence; or on account of mala fides. A litigant does not stand to benefit by resorting to
delay.
6. It must be grasped that judiciary is-respected not on account of its power to legalize
injustice on technical grounds but because it is capable of removing injustice and it is
expected to do so.
It was pointed out that the Courts should adopt liberal approach in the matter of condonation
of delay keeping in view the above principles.
Q) What is legal disability? Write in brief the combined effect of Section 6, Section 7
and Section 8 of the Limitation Act, 1963. [6+10]
Ans. Section 6 of the Limitation Act,1963
Legal disability — (1) Where a person entitled to institute a suit or make an application for
the execution of a decree is, at the time from which the prescribed period is to
be reckoned, a minor or insane, or an idiot, he may institute the suit or make the application
within the same period after the disability has ceased, as would otherwise have been allowed
from the time specified there for in the third column of the Schedule.
(2) Where such person is, at the time from which the prescribed period is to be reckoned,
affected by two such disabilities, or where, before his disability has ceased, he is affected by
another disability, he may institute the suit or make the application within the same
period after both disabilities have ceased, as would otherwise have been allowed from
the time so specified.
(3) Where the disability continues up to the death of that person, his legal
representative may institute the suit or make the application within the same period after
the death, as would otherwise have been allowed from the time so specified.
(4) Where the legal representative referred to in sub-section (3) is, at the date of the death of
the person whom he represents, affected by any such disability, the rules contained sub-sections
(1) and (2) shall apply.
(5) Where a person under disability dies after the disability ceases but within the period
allowed to him under this section, his legal representative may institute the suit or make the
application within the same period after the death, as would otherwise have been available to
that person had he not died.
Explanation —For the purposes of this section, ‘minor’ includes a child in the womb.
The section deals with following types of disabilities:
Minority
▪ Minor is a person who has not attained the age of 18 years according to Indian
Majority Act, 1875.
▪ The calculation of the age has to be done according to Section 3(2) of the Majority
Act, 1875 - In computing the age of any person, the day on which he was born is to be
included as a whole day and he shall be deemed to have attained majority at the
beginning of the eighteenth anniversary of that day.
Insanity
▪ It means unsoundness of mind or lack of the ability to understand that prevents
someone from having the mental capacity required by law to enter into a particular
relationship, status, or transaction or that releases someone from criminal or civil
responsibility.
▪ In the case of S.K.Yadav v. State of Maharashtra (2009), the concept of insanity has
been dealt with in detail by the Supreme Court and the court opined that only legal
insanity is recognized by law and not the medical insanity.
▪ Another case on the point of insanity is that of Hari Singh Gond v. State of Madhya
Pradesh (2008) in which the Supreme Court categorized insanity into further four
categories:
▪ When one is an idiot;
▪ When one is made non compos by illness
 ▪ When one is a lunatic or a mad man and
▪ When one is drunk.
Idiocy
A person who acts in an extremely foolish way is said to be an idiot. Idiocy is not an acquired
form of mental instability, rather a person is an idiot since his/her birth.
Computation of Limitation Period in case of Legal Disability
Persons with insanity, minority and idiocy as disabilities are exempted under Section
6 to file a suit or an application for the execution of the order in the time prescribed by the
law. They are allowed to file a suit or an application when their disability has ceased and
counting the period starts from the day their disability comes to an end.
Who is entitled to the benefit of Section 6
It is only a person “entitled to the suit” who can claim benefit of legal disability. Where the
person dies with such disability the ‘Legal Representative’ of such person may sue and all the
rules provided by Section 6 would apply to such legal representative as well.
Accrual of cause of action
▪ The provision provides that the plaintiff must be suffering from the disability at the
time when the cause of action accrues.
▪ In the case of Udhavji Anandji Ladha and Ors. v. Bapudas Ramdas Darbar (1949)
Bombay High Court held that Section 6 does not cover in any way
any “intervening” kind of legal disability. When a legal disability is in existence, only
then can Section 6 be successfully applied.
Section 7 of the Limitation Act,1963
Disability of one of several persons.—Where one of several persons jointly entitled
to institute a suit or make an application for the execution of a decree is under any such
disability, and a discharge can be given without the concurrence of such person, time will run
against them all; but, where no such discharge can be given, time will not run as against any of
them until one of them becomes capable of giving such discharge without the concurrence of
the others or until the disability has ceased.
Explanation I —This section applies to a discharge from every kind of liability, including a
liability in respect of any immovable property.
Explanation II —For the purposes of this section, the Manager of a Hindu undivided family
governed by the Mitakshara law shall be deemed to be capable of giving a discharge without
the concurrence of the other members of the family only if he is in management of the joint
family property.
 ▪ Section 7 had to be taken as an exception to the general principle set out in Section
6 and provides that if there were several persons who were jointly entitled to file suits
and if one of them were disabled, the time would not run against either of them until
the disability ceased to exist. But if one of the persons entitled to institute a suit was
competent to grant discharge without concurrence from others, then time would begin
to run against both of them.
Section 8 of the Limitation Act,1963:
Special exceptions — Nothing in Section 6 or in Section 7 applies to suits to enforce rights of
pre-emption, or shall be deemed to extend, for more than three years from the cessation of
the disability or the death of the person affected thereby, the period of limitation for any suit
or application.
▪ This provision provides that if the limitation period is extended under Section 6 or
7 then in no case it should be extended for more than 3 years.
▪ Also, the extension under Section 6 or 7 will not be applicable to suits for pre-
emption.
Q) What is meant by Period of Limitation? How is the Period of Limitation computed?
[4+8]
Ans. The "period of limitation" refers to the specific duration within which a legal action, such
as filing a lawsuit, appeal, or application, must be initiated in a court of law. This time frame
is prescribed by law and varies depending on the nature of the claim or legal proceeding. The
Limitation Act, 1963, in India, outlines these time limits for different types of legal actions to
ensure that claims are made within a reasonable period and to promote legal certainty and
finality.
Section 12: Exclusion of Time in Legal Proceedings
Section 12 of the Limitation Act, 1963, specifies that in computing the period of limitation for
any suit, appeal, or application, the day from which such period is to be reckoned shall be
excluded. It also excludes the time taken to obtain a copy of the judgment, decree, order, or
award for appeals or revisions.
In Maideen Kunju v. Gopalan (AIR 1975 Ker 27), the Kerala High Court held that the time
taken to obtain the certified copy of the decree must be excluded while computing the period
of limitation for filing an appeal.

Section 13: Exclusion of Time in Cases Where Leave to Sue or Appeal as a Pauper is Applied
For
Section 13 provides that the time during which an application for leave to sue or appeal as a
pauper is pending shall be excluded in computing the period of limitation. This ensures that
applicants are not penalized for the time taken in obtaining permission to proceed as paupers.
In Ratanlal v. Surajbhan (AIR 1971 MP 4), the Madhya Pradesh High Court held that the period
during which an application to sue as a pauper was pending must be excluded from the
limitation period for filing the suit.

Section 14: Exclusion of Time Spent in Proceedings Bona Fide in Court Without Jurisdiction
Section 14 allows for the exclusion of time spent in bona fide proceedings in a court that lacked
jurisdiction. The time spent in prosecuting or defending a case in such a court, provided it was
in good faith, is not counted towards the limitation period.
In Roshanlal Kuthalia v. R.B. Mohan Singh Oberoi (AIR 1975 SC 824), the Supreme Court of
India held that Section 14 applies when the plaintiff had acted in good faith in pursuing a
remedy in a court without jurisdiction, thus allowing the exclusion of that period.

Section 15: Exclusion of Time in Certain Other Cases

Section 15 outlines specific situations where time is excluded from the limitation period, such
as:
When the defendant is outside India.
When an injunction or stay order has been granted by the court.
When notice is required to be given before instituting the suit.
In Sukhdeo Singh v. Narain Singh (AIR 1982 SC 88), the Supreme Court held that the period
during which the execution of a decree is stayed by an injunction or order of a court shall be
excluded in computing the limitation period for an application for the execution of the decree.

Section 16: Effect of Death on or Before the Accrual of the Right to Sue
Section 16 provides that if a person entitled to file a suit or make an application dies before the
right to sue accrues, the limitation period begins from the time when there is a legal
representative capable of instituting the suit.
In Harnand Rai v. Mam Chand (AIR 1966 SC 907), the Supreme Court explained that the
limitation period is extended when a right to sue accrues after the death of a person, ensuring
that the legal representatives are given a fair opportunity to file the suit.

Section 17: Effect of Fraud or Mistake

Section 17 states that in cases of fraud or mistake, the period of limitation begins when the
plaintiff discovers the fraud or mistake. This provision ensures that the limitation period
accounts for instances where the claimant was unaware of their right to sue due to fraud or
mistake.
In P.S. Sadasivaswamy v. State of Tamil Nadu (AIR 1975 SC 2271), the Supreme Court held
that the limitation period for a suit based on fraud starts from the date of discovery of the fraud.

Section 18: Effect of Acknowledgment in Writing

Section 18 states that where, before the expiration of the prescribed period for a suit or
application, an acknowledgment of liability has been made in writing and signed by the party
against whom the claim is made, a fresh period of limitation shall be computed from the time
of acknowledgment.
In Shapoor Freedom Mazda v. Durga Prosad Chamaria (AIR 1961 SC 1236), the Supreme
Court clarified that an acknowledgment must be made before the expiry of the limitation period
and must be in writing and signed to trigger a fresh limitation period.

Section 19: Effect of Payment on Account of Debt or of Interest on Legacy

Section 19 provides that where payment on account of a debt or interest on a legacy is made
before the expiration of the prescribed period, a fresh period of limitation shall be computed
from the time of such payment.
In L.C. Mills v. Aluminium Corporation of India Ltd. (AIR 1971 SC 1482), the Supreme Court
held that part payment of a debt or interest before the expiration of the limitation period would
extend the limitation period, starting from the date of such payment.

Section 20: Effect of Acknowledgment or Payment by Another Person

Section 20 states that in cases of joint liability, an acknowledgment or payment made by one
of several persons liable shall extend the limitation period for all.
In Babulal Rukmanand v. Official Liquidator, Bharatpur Oil Mills Co. Ltd. (AIR 1968 SC 445),
the Supreme Court held that an acknowledgment by one of the joint debtors would extend the
limitation period for the other joint debtors as well.

Section 21: Effect of Substitution or Addition of New Plaintiffs or Defendants

Section 21 provides that when a new plaintiff or defendant is added or substituted after the
institution of the suit, the suit shall be deemed to have been instituted against the new party
from the date of such addition or substitution.
In Kandappan v. Muthuswami (AIR 1966), the Supreme Court held that the limitation period
for the newly added defendant starts from the date of their addition, ensuring they are not
unfairly prejudiced by actions before their involvement.

Section 22: Continuing Breach and Tort

Section 22 states that in the case of a continuing breach of contract or a continuing tort, a fresh
period of limitation begins at every instance of the breach or tort.
In Balkrishna Savalram Pujari v. Shree Dhyaneshwar Maharaj Sansthan (AIR 1959), the
Supreme Court held that in cases of continuous torts, a fresh limitation period starts with each
occurrence, allowing the plaintiff to seek redress for ongoing issues.

Section 23: Suits for Compensation for Act Not Actionable Without Special Injury
Section 23 specifies that for suits seeking compensation for acts that are not actionable without
special injury, the period of limitation begins when the special injury occurs.
In Manickam v. William Jacks & Co. (AIR 1967), the Supreme Court clarified that the
limitation period for suits involving special injury starts from the date of the injury, not the act
itself.

Section 24: Computation of Time Mentioned in Instruments

Section 24 provides that for instruments (such as contracts or agreements) where time is
mentioned, the computation of the limitation period should follow the specific time mentioned
unless otherwise specified by the Act.
In Laxmi Mills Co. Ltd. v. Aluminium Corporation of India Ltd. (AIR 1971), the Supreme
Court held that when a specific time frame is mentioned in a contract, it must be followed for
computing the limitation period unless it contradicts the provisions of the Limitation Act.

In conclusion, Sections 12 to 24 of the Limitation Act, 1963, provide detailed provisions for
computing the period of limitation, addressing various scenarios such as legal disabilities,
fraud, acknowledgment of debt, and continuing breaches. These sections ensure that the
limitation period is calculated fairly, accommodating exceptional circumstances and providing
clarity on when the limitation period starts and how it is extended or excluded. The case laws
cited illustrate the application and interpretation of these provisions by the Indian judiciary,
reinforcing the Act's principles in practical scenarios.
Q) Write short notes on any two of the following : [8×2]
(a) Distinguish between Limitation and Prescription.
(b) Sufficient cause and condonation of delay.
Sufficient cause means that there should be adequate reasons or reasonable ground for the court
to believe that the applicant was prevented from being proceeding with the application in a
Court of Law.
In State (NCT of Delhi) v. Ahmed Jaan, it was said that the expression “sufficient cause”
should receive a liberal construction. In Balwant Singh (Dead) v. Jagdish Singh & Ors, the
Supreme Court held that it is obligatory upon the applicant to show sufficient cause because of
which he was prevented from continuing to prosecute the proceeding in the suit. In this case,
there was a delay of 778 days in filing the application for bringing the legal representatives on
record.
The Bombay High Court in Brij Indar Singh v. Kansi Ram observed that the true guide for
the Court while exercising jurisdiction under Section 5 is whether the litigant acted with
sensible and reasonable diligence in prosecuting the appeal.
Whether an applicant has given a sufficient cause or not depends upon the discretion of the
court and the circumstances of each case. For instance, a Court can condone the delay on
medical grounds.
Condonation of Delay
Condonation of delay means that extension of time given in certain cases provided there is
sufficient cause for such delay. Section 5 talks about the extension of the prescribed period in
certain cases. It provides that if the appellant or the applicant satisfies the court that he had
sufficient cause to not prefer the appeal or application within that period, such appeal or
application can be admitted after the prescribed time. This Section further mentions that an
application made under any of the provisions of Order XXI of the Code of Civil Procedure,
1908 (5 of 1908). The explanation states that in ascertaining or computing the period prescribed
when the applicant or appellant has been misled by any order, practice or judgment of the High
Court. It will be a sufficient cause within the meaning of this section.
However, If a party does not show any cogent ground for delay then the application, suit or
appeal will be rejected by the court.