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Cpc unit 4 questions and answers in one format.

Civil Procedure Code & Limitation Act (Karnataka State Law University)

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Unit-4
Q1
What is Commission? What are the different purposes for which a Commission may be appointed?
What are the circumstances in which a Commission may be appointed?
SYNOPSIS
INTRODUCTION
IN WHAT CIRCUMSTANCES COURT CAN ISSUE COMMISSION?
THE COURT MAY ISSUE A COMMISSION FOR ANY OF THE FOLLOWING PURPOSES
CONCLUSION

Introduction
Commission

Any authority or document of authority is been delegated to any person (known as commissioner)
for the act he might have done or to do any certain act or not to do the same. This is provided by the
court during the proceeding and is formally known as the “commission”.

In what circumstances court can issue commission?

The Order XXVI of Code of Civil Code defines the entire procedure of the court to delegate
Commission in any the Civil Matter. Where under section 75 the commissioner is appointed and
court may issue order to the commissioner for the examination of any person, for investigation in
local limits, for examination or adjustment of accounts, make a partition, have scientific, technical
investigation, deal the sale of property which is in possession of the court to proceed the suit
pending and all other acts as deem fit by the court, perform any ministerial act.

Why the Jurisdictional limit is the main concern?

This is so, because court has power only to entertain the suit which falls under its jurisdictional limits.
The suit is maintainable only if it is falling under following types of Jurisdiction:

 Subject Matter Jurisdiction

 Territorial Jurisdiction
 Pecuniary Jurisdiction
 Original or Appellate Jurisdiction
If the suit is not falling under the ambit of the above mention types than it is not maintainable and
therefore, jurisdictions limit is the main concern.

The Court may issue a Commission for any of the following purposes

1) To examine any Person

2) To make a local investigation
3) To examine or adjust accounts
4) To make a partition
5) To make a scientific investigation
6) To conduct for sale, and
7) To perform a ministerial act.

There are shortly discussed about the above grounds, which are given below.

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To examine any Person:

Section (76 – 78), order (XXVI) 26, Rules (1 – 8) of the Code of Civil Procedure deals with the
Commission to examine of witness. The court may issue a commission for the examination on
interrogatories or otherwise of any person in the following circumstances: –

1) If the person to be examined as a witness reside within the local limits of the court’s
Jurisdiction;
2) If he resides beyond the local limits of the Jurisdiction of the court, or
3) If he is about to leave the Jurisdiction of the court.

To make a local investigation:

The court may, in any suit, issue a commission to such person as it thinks fit directing him to make
local investigation.

To examine or adjust accounts:

In any suit in which an examination or adjustment of accounts is necessary, the court may issue a
commission to such person as it thinks fit directing him to make such examination or adjustment.

To make a Partition:
Where a preliminary decree for partition of immoveable property has been passed, the court may
issue a commission to such person as it thinks fit to make a partition or separation according to the
rights as declared in such decree.

To make a scientific investigation:

Where any question arising in a suit involves any scientific investigation the court may issue a
Commission to such person as it thinks fit, directing him to enquire into such question and report
thereon to the court.

To conduct for sale:

Where, in any suit, it becomes necessary to sell any moveable property which is in the custody of the
Court, pending the determination of the suit and which cannot be conveniently preserved, the court
may, issue a commission to such person as it thinks fit, directing him to conduct such sale and resort
thereon to the court.

To perform a ministerial act:

Where any question arising in a suit involves the performance of any ministerial act which cannot, in
the opinion of the Court, be conveniently performed before the court, the court may issue a
commission to such person as it thinks fit, directing him to perform that ministerial act and report
thereon to the court

Conclusion

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Q2
What are the pre-conditions and procedures to be followed in institution of suits by or against
Government?
SYNOPSIS
INTRODUCTION
PROVISIONS OR PRECONDITIONS
CONCLUSION

Introduction
Under the Civil Procedure Code, the subject of suits by or against public officers in their official
capacity has been recognized under Section 79, Section 80 and Order 27 of CPC. Firstly, it should be
understood that Section 79 of CPC is a procedural provision and hence, it does not deal with rights
and liabilities enforceable by or against the government [1]. But at the same time, it declares a mode
of the procedure when the cause of action arises. On the other hand, Section-80 of CPC is not a
procedural provision but a substantive one [2], the rules involved in it and working of Section 80 will
be discussed further. Lastly, Order 27, includes under its ambit various rules and subjects like that of
recognized agents, attorney general and the procedure to be followed while the suit is being filed by
or against the government or public officers in their official capacity. This article tries to analyze the
three sections in detail and provide an overview of the same in a clear-cut way.

Provisions or pre-conditions
Section 79 and 80 are defined as follows under the Procedure of Civil Code-
Section 79- This Section defines the concept of suits by or against the government: Whenever a case
is filed against a government or if it is filed by the government, the plaintiff and the defendant who
will be named in the case will be as provided under:
-Whenever the case is instituted by or against the central government, the Union of India will be
represented as the required plaintiff or defendant respectively.
-Whenever the suit is filed by or against the state government, the state government will be required
to act as the plaintiff or the defendant.

Section 80- This section deals with the concept of Notice. According to this Section, there exists no
onus for the institution of a suit against the government without issuing a notice regarding the same;
this includes the state of Jammu and Kashmir. With respect to institution of a suit against a public
officer with respect to the act done by him in his official capacity, there is again a need for issuance
of notice regarding the same. Further, the notice should be served two months prior to the
institution of the suit and it should be made sure that such a notice was delivered or left at the office
of:

-Whenever the case is against the central government, and it does not relate to the railways then,
the notice should be delivered to the secretary of the government.
-Whenever a case has been instituted against the central government and it relates to the railways
then, the notice is to be served to the general manager of that railways.
-Whenever the case is instituted against any of the state governments then, the notice is to be
served either to the secretary to that government or to the collector of the district.

Scope of Section 79
Section 79 lays down the procedure whereby the suits are brought by or against the government but
at the same time, it does not deal with the rights and liabilities enforceable by or against the
government body [3]. In the case of Jehangir v. Secretary of State [4], an important observation was

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made which was that this section gives no cause of action but only declares the mode of the
procedure when the cause of action arises.

Jurisdiction
Under Section 79, only the court within whose local limits, the cause of action arose, has the
jurisdiction to try the suit and otherwise it cannot. In the case of Dominion of India v. RCKC Nath &
Co. [5], it was held that words like ‘dwell’ or ‘reside’ or ‘carry on business’ which are mentioned in
Section 18, 19 and 20 of code do not apply to the government [6].

Suit against Railway

If the railway is administered by the union of India or a State, then any suit to enforce a claim against
railway administration can be brought against the Union of India or State, and this may not include
making the railway administration a part of the suit. But on the other hand whenever there is a
requirement for a suit for freight for carrying goods, then such a suit can be instituted by the Union
of India, and this was held in the landmark case of Union of India v. RC Jall [7].

Section 80
This part of the article will include under its ambit the detailed analysis of Section 80 of Civil
Procedure Code, and for the purpose of better understanding, the subtopics are to be studied by
breaking them down under the Section of nature and liability, contents of the notice, effect of non-
compliance and waiver of notice.

Contents of the Notice

Notice under Section 80, is required to contain the following aspects: name, description, residence of
the plaintiff, the cause of action and lastly the relief which the plaintiff claims. Also, the notice is
required to convey to its recipients, sufficient information to enable him to consider the claim, which
was held in Union of India v. Shankar Stores [10]. The above-mentioned particulars should be given in
such a way that, it enables the authorities to identify the person giving the notice.

Order XXVII
1- Suits by or against the government- It should be noted that in any suit by or against the
government, the plaint or the written statement should be signed by such a person, as the
government by general or special order, appoint in this behalf. State of Rajasthan v. Jaipur Hosiery
Mills [12], in this case, it was held that the sanction to sign must be prior to the institution, and if not
complied with this, the signing shall be by an incompetent person, and further, issuing of a
retrospective sanction will not preserve the defect.

Government pleader is an agent under the order 27 of CPC. The government pleader acts as an agent
for receiving processes issued against the government. Also he is the only person to intimate the
court that he is representing the government and no stamped power of attorney or vakalatnama is
required for the same [13].

Lutfar Rahman v. State of West Bengal [14]. In the aforementioned case, it was held that when a
person other than the government pleader wants to act as an agent, it is possible only when the
government agent intimates the Court that the former is acting under his directions. Rule 5 of Order
27, has been discussed in the next segment of this article.

2- Attendance of person being able to answer the questions related to suits against the government-
The court may, in any case where government pleader is not accompanied by person on the part of

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the government and if he is able to answer the questions relating to suit, the court may direct the
attendance of that person [15].

Conclusion
Hence, all the three provisions which bring to light the various procedures and rules involved in the
suit by or against the government or a public officer have been discussed and analyzed in detail. It
can be said that the applicability of these sections must be determined by the law as it stands [17].
Further, if the procedure lay down by the rule in these sections is not followed, then the court is to
proceed with the footing that there is no appearance of government pleader on behalf of the public
officer. And lastly, the rules laid down in Order 27 are to be strictly abided by while filing a suit.

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Q3
What is the procedure for institution of suit by an indigent person?
SYNOPSIS
INTRODUCTION
MEANING OF INDIGENT PERSON
OBJECT
PROCEDURE TO FILE A SUIT AS AN INDIGENT PERSON
CONCLUSION

Introduction
In India, there are so many people, who are poor and not able to get two-time food. So in these
situations, how can we expect that they are able to get the justice from the court without money.
Indian law provides an equal opportunity before the law and equality before the law all the citizens
of India. It is the duty of the law to provide free Legal Aid to the persons who are needed. For
providing equal justice to all the people of the India CPC has provided the provision regarding the
indigent person under order 33.
Order 33 provides the procedure for filing of suit by an indigent person. It empowers the
persons who are not able to pay Court fees to institutes suits without payment of requisite Court
fees

Meaning of indigent person

An indigent person means any person who fulfills the conditions provided under Order 33 Rule 1
which is as follows:-
1. Any person who has no means to pay the Court fees prescribed by the law for the plaint in suit;
and,
2. He has not entitled to any property worth 1000 rupees where no fees is prescribed.

Object
Order 33 provides the provisions which are intended to enable an indigent person to institute and
prosecute suits without payment of the court fees under the Court Fees Act plaintiff showing in the
court of law is bound to pay Court fees prescribed presentation of the plaint. Under this Order, the
person is exempted from paying the court fee at the first instant and allow him to prosecute his suit
provided certain conditions laid down in this order 33 has been enacted to server triple purpose
I. To protect Bonafide cleans of an indigent person
II. To safeguard the interest of revenue and
III. To protect the defendant from harassment

Procedure to file a suit as an indigent person

Before filing a suit as an indigent person begins, it is important to add all the relevant contents in the
application seeking permission to be an indigent person [Rule 2]. As per Rule 2 of Order XXXIII, the
application must include the particulars similar to what is mentioned in the plaint and all movable or
immovable properties of the indigent person/applicant along with its estimated value.

The indigent person/applicant shall himself in person present the application before the court. In
case, such a person is exempted from appearing in the court, an authorized agent may present the
application on his behalf. In certain circumstances where there are two or more plaintiffs, the
application can be presented by any of them. [Rule 3]. The suit begins as soon as the application to
sue as an indigent person is duly presented before the court. Subsequently, the indigent

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person/applicant is examined by the court. However, if the applicant is being represented by his
agent, then in such a case, the court may examine the applicant by the commission [Rule 4].

Conclusion
It has been observed that Order XXXIII, permits the destitute, impoverished, and downtrodden, who
meet the criteria of an indigent person as provided by Order XXXIII, to seek justice by exempting
them from paying the required Court fees. Order XXXIII further authorizes such poor people to file a
suit in their own name. The court at the outset itself while deciding the application must take into
account the persons having sufficient means and out rightly reject them to sue as indigents. The
permission to file suit as indigent persons must be carefully given to those who face financial
constraints and lack basic resources as access to justice can sometimes also be in the form of
injustice.

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Q4
What are the special procedures to be followed in a suit by or against partnership firms?
SYNOPSIS
INTRODUCTION
ORDER 30 OF CIVIL PROCEDURE CODE, 1908
ORDER XXX OF CIVIL PROCEDURE CODE (CPC) – SUITS BY OR AGAINST FIRMS AND PERSONS
CARRYING ON BUSINESS IN NAMES OTHER THAN THEIR OWN
CONCLUSION

Introduction
What is a partnership?
Indian Partnership Act, 1932 defines a partnership as an entity where two or more people join
together with a common object of carrying out the firm’s business and share all the profits and losses
incurred in the business carried out on all or anyone acting for all. A firm does not have a different
legal entity of its own. That means a firm does not have any right to sue or to be sued by anyone
independently since it is not a legal person.

Order 30 of Civil Procedure Code, 1908

Fraud, contractual disputes, breach of trust, etc. are some very common which are heard in
partnership businesses. Sometimes with the intent of committing fraud, some firms enter into
partnerships with other firms and try to avoid their liabilities and promises later. Order 30 of the Civil
Procedure Code, 1908, lays down certain procedures for suing a firm and being sued by a firm and
how to conduct these suits.

The Hon’ble Supreme Court of India in Purushottam Umedbhai and Co. v. Manilal and Sons, stated
that the provisions of Order 30 of the Civil Procedure Code are enabling provisions to allow different
firms who are carrying out businesses as partners to sue or to be sued in the name of the firm and it
does not restrict the partners of a firm from suing or being sued in their names, nor do they restrict
the partners, who may be doing business outside India, from suing in their names individually in
India.

ORDER XXX OF CIVIL PROCEDURE CODE (CPC) – SUITS BY OR AGAINST FIRMS AND PERSONS
CARRYING ON BUSINESS IN NAMES OTHER THAN THEIR OWN
1. Suing of partners in name of firm.
(1) Any two or more persons claiming or being liable as partners and carrying on business, in India
may sue or be sued in the name of the firm (if any) of which such persons were partners at the time
of the accruing of the cause of action, and any party to a suit may in such case apply to the Court for
a statement of the names and addresses of the persons who were, at the time of the accruing of the
cause of action, partners in such firm, to be furnished and verified in such manner as the Court may
direct.

(2) Where persons sue or are sued partners in the name of their firm under sub-rule (1), it shall, in
the case of any pleading or other document required by or under this Code to be signed, verified or
certified by the plaintiff or the defendant, suffice such pleading or other document is signed, verified
or certified by any one of such persons.

2. Disclosure of partners’ names.

(1) Where a suit is instituted by partners in the name of their firm, the plaintiffs or their pleader shall,
on demanding writing by or on behalf of any defendant, forthwith declare in writing the names and
places of residence of all the persons constituting the firm on whose behalf the suit is instituted.

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(2) Where the plaintiffs or their pleader fail to comply with any demand made under sub-rule (1) all
proceedings in the suit may, upon an application for that purpose, be stayed upon such terms as the
Court may direct.

(3) Where the names of the partners are declared in the manner referred to in sub-rule (1) the suit
shall proceed in the same manner and the same consequences in all respects shall follow, as if they
had been named as plaintiffs in the plaint:
Provided that all proceedings shall nevertheless continue in the name of the firm, but the name of
the partners disclosed in the manner specified in sub-rule (1) shall be entered in the decree.

3. Service.
Where persons are sued as partners in the name of their firm, the summons shall be served either-
(a) Upon any one or more of the partners, or
(b) at the principal place at which the partnership business is carried on within India upon any person
having, at the time of service, the control or management or the partnership business, there, as the
Court may direct; and such service shall be deemed good service upon the firm so sued, whether all
or any of the partners are within or without India:
Provided that, in the case of a partnership which has been dissolved to the knowledge of the plaintiff
before the institution of the suit, the summons shall be served upon every person within India whom
it is sought to make liable.

4. Rights of suit on death of partner.

(1) Notwithstanding anything contained in Section 45 of the Indian Contract Act, 1872 (9 of 1872)
where two or more persons may sue or be sued in the name of a firm under the foregoing provisions
and any of such persons dies, whether before the institution or during the pendency of any suit, it
shall not be necessary to join the legal representative of the deceased as a party to the suit.

(2) Nothing in sub-rule (1) shall limit or otherwise effect any right which the legal representative of
the deceased may have-
(a) To apply to be made a party to the suit, or
(b) To enforce any claim against the survivor or survivors.

5. Notice in what capacity served.

Where a summons is issued to a firm and is served in the manner provided by rule 3 , every person
upon whom it is served shall be informed by notice in writing given at the time of such service,
whether he is served as a partner or as a person having the control or management of the
partnership business, or in both characters, and, in default of such notice, the person served shall be
deemed to be served as a partner.

6. Appearance of partners.
Where persons are sued as partners in the name of their firm, they shall appear individually in their
own names, but all subsequent proceedings shall, nevertheless, continue in the name of the firm.

7. No appearance except by partners.

Where a summons is served in the manner provided by rule 3 upon a person having the control or
management of the partnership business, no appearance by him shall be necessary unless he is a
partner of the firm sued.

8. Appearance under protest.

(1) Any person served with summons as a partner under rule 3 may enter an appearance under
protest, denying that he was a partner at any material time.

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(2) On such appearance being made, either the plaintiff or the person entering the appearance may,
at any time before the date fixed for hearing and final disposal of the suit, apply to the Court for
determining whether that person was a partner of the firm and liable as such.

(3) If, on such application, the Court holds that he was a partner at the material time, that shall not
preclude the person from filing a defence denying the liability of the firm in respect of the claim
against the defendant.

(4) If the Court, however, holds that such person was not a partner of the firm and was not liable as
such that shall not preclude the plaintiff from otherwise serving a summons on the firm and
proceeding with the suit; but in that event, the plaintiff shall be precluded from alleging the liability
of that person as a partner of the firm in execution of any decree that may be passed against the
firm.

9. Suits between co-partners.

This Order shall apply to suits between a firm and one or more of the partners therein and to suits
between firms having one or more partners, in common; but not execution shall be issued in such
suits except by leave of the Court, and, on an application for leave to issue such execution, all such
accounts and inquiries may be directed to be taken and made and directions given as may be just.

10. Suit against person carrying on business in name other than his own.
Any person carrying on business in a name or style other than his own name, or a Hindu undivided
family carrying on business under any name, may be sued in such name or style as if it were a firm
name, and, in so far as the nature of such case permits, all rules under this Order shall apply
accordingly.

Conclusion

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Q5
What are the special procedures to be followed in suits by or against minors?
SYNOPSIS
INTRODUCTION
DEFINITION
NATURE AND SCOPE
OBJECT
SUITS BY MINORS
SUIT AGAINST MINORS
DECREE AGAINST MINORS
CONCLUSION

Introduction

Minor: Definition:
Rule 1
A minor is a person who has not attained the age of 18 years. But in the case of a minor ofwhose
person or property a guardian or next friend has been appointed by a court or whose property is
under superintendence of a Court of Wards, the age of majority is 21 years.

Nature and scope

Order 32 prescribes the procedure of suits to which the minors or person of unsound mindare
parties.

Object
Order 32 has been specially enacted to protect the interest of minors and persons of unsound mind
and to ensure that they are represented in suits or proceedings by persons who are
Qualified to act as such.
An infant is, in law, regarded as of immature intelligence and discretion and owing to his want of
capacity and judgment is disable from binding himself except where it is for his
Benefit. The law will, as a general principle, treat all acts of an infant which are for his
benefit on the same footing as those of an adult, but will not permit him to do anything
prejudicial to his own interests.“ Thus, a decree passed against a
Minor or a lunatic without appointment of a guardian is a nullity and void and not merely voidable.
The provisions of Order 32
Reflect principles of natural justice,
equality and good conscience, inasmuch as they allow litigation to be prosecuted or defended on
behalf of minors, persons of unsound mind and
Persons with mental infirmity. In absence of such provisions
Interest of persons with legal disability are bound to suffer.

Suits by minors:
Rule 1-2A

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Every suit by a minor should be instituted in his name through his guardian or next friend. Ifit is not
done the plant will be taken off the file. Where such minor is a plaintiff the courtmay at any stage of
the suit, order his guardian or next friend, either on the application of thedefendant or suomotu for
reason to be recorded to furnish security for costs of the defendant.The provision seeks to
discourage vexatious litigation by guardians or next friends of minors

Suit against minors:

Rule 3

Where a suit is instituted against a minor, the court should appoint a guardian ad litem to defend the
suit. Such appointment should continue throughout all the proceedings including an appeal or
revision and in execution of a decree unless it is terminated by retirement, removal or Death of such
guardian.

Who may be appointed as guardian or next friend?

Rule 4Any person who has attained majority and is of sound mind, may act as a guardian or next
friend, provided his interest is not adverse to that of the minor, who is not the opposite party in the
suit and who gives consent in writing to act as a guardian or next friend. In the interest of a minor,
however, the court may permit another person to act as the next friend or guardian of the minor. In
the absence of a fit and willing person to act as a guardian, the court may appoint any of its officers
to be such guardian.

Power &duties of guardian or next friend:

Rule 5-7 No guardian or a next friend can, without the leave of the court receive any amount or
movable property on behalf of a minor by way of compromise, nor enter into any agreement or
compromise on his in the suit. An application for leave of the court should be accompanied by an
affidavit of the next friend or guardian, and if the minor is represented by pleader, with the
certificate of the pleader that such compromise is, in his opinion, for the benefit of the minor. Such
certificate or opinion expressed in the affidavit, however, cannot preclude the court from examining
whether the agreement or compromise proposed is for the benefit of the minor. An agreement or
compromise entered into without the leave of the court is voidable at the instance of the minor.
Once such an agreement or compromise is avoided by a minor, it has no effect at all.

Rules 6 and 7 provide that no next friend or guardian of a minor for the suit shall, without the leave
of the court, (a) receive any money or, other movable property on behalf of a minor either by way of
compromise before or under a decree or order in favor of the minor, (b)enter into any agreement or
compromise on behalf of a minor with reference to the suit, unless such leave is expressly recorded
in the proceedings.

The application for such leave must be accompanied by an affidavit of the next friend or guardian of
the minor, as the case may be, and if the minor is represented by a pleader, by the certificates of the
pleader to effect that such compromise is in his opinion for the benefit of the minor. The opinion so
expressed in the affidavit or certificate cannot preclude the court from examining whether in fact the
compromise is for the benefit of the minor.

Any compromise entered into without the leave of the court shall be voidable against all parties
other than the minor. Therefore, the compromise is good unless the minor chooses to avoid it.”
But once it is avoided by a minor, it ceases to be effective as regards the other parties also.

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Rule 6 and 7 are designed to safeguard the interest of minor during the pendency of a suit against
hostile, negligent or collusive act of a next friend or guardian. They are based upon the general
principle that infant litigants become wards of the court and the court has got the right and also the
duty to see that the next friends or guardian act properly and bona fide in the interest of minors and
that no suit are instituted or carried on by them for their own benefits only irrespective of the
benefits of minors.

Decree against minors:

Rule 3-A

A decree passed against a minor without appointment of next friend or guardian is null andvoid. But
a decree passed against a minor cannot be said to be illegal nor can be set asideonly on the ground
that the next friend or a guardian Of the minor had an interest in theSubject-matter of the suit
adverse to that of the minor. If the minor is prejudiced because ofadverse interest of the next friend
or guardian, it can be made a ground for setting aside adecree. The minor may also obtain
appropriate relief for misconduct or gross negligence onthe part of his next friend or guardian.

Conclusion

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Q6
What is an interpleader suit? Explain the conditions and procedure relating to interpleader suit and
who cannot file interpleader suit?
SYNOPSIS
INTRODUCTION
DEFINITION
INTERPLEADER SUIT AND ITS CONDITION
WHO CANNOT FILE AN INTERPLEADER SUIT?
CONCLUSION

Introduction

Meaning and definition

When the plaintiff on behalf of the claimant filed a suit for choosing the actual owner of the property
then it is called an interpleader suit. When a Plaintiff is not in the direct possession of the property or
thing, he files a suit. Petitioner has the indirect possession of the property. There is more than one
defendant in this suit. Because in this suit more than one defendant can file the suit for the claim of
property. When the actual owner of the property dies without transferring the property to anyone
then the property transfer becomes the interpleader suit. Other than that the plaintiff may file a suit
for the movable or immovable property to deliver the property to the defendant because more than
one person has filed a suit for the claim of property. Debt is required in this suit or some amount of
money for the dispute which is between two defendants. Defendants can claim some debt from
another defendant of the property. Only the plaintiff is the one who cannot claim any cost and is also
ready to deliver the property to the defendants. Interpleader is defined in Section 88 of the Civil
Procedure Court.

Interpleader suit in CPC

Interpleader suit in C.P.C is defined in section 88 with order no XXXV. An interpleader suit means if
any person claims any property of her husband or her parents and in case the owner of the property
is dead without transferring the property, then the second owner has to claim the property from the
bank or authority.

Interpleader suit and its condition

-Conditions of Interpleader suit
1. Debt, money, property either movable or immovable in the dispute.
2. Two defendants are there in the suit.
3. Both defendants can claim each other for the property or money.
4. The person who has to pay the debt to the defendant is not valid for any interest.
5. The Claimant is willing to pay the debt or some amount of money, or property to the defendant.
6. Suits are not pending in this.
7. This suit cannot be filed twice if the judgment is given in
8. Res judicata.

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-Test of applicability
The test of applicability is done during the suit when the pleading is going on. This test is done by a
court of law, after this test they decide about the next owner of the property or money. This test is
very important for the interpleader suit. Because in an interpleader suit one or more defendants are
there. In a test of applicability, some questions are asked from the defendant during the pleading.

-Plaint in an interpleader suit

The Plaintiff is the person who only filed a suit in the court on behalf of defendants for the claim of
property which is claimed by the different defendants. The Plaintiff has no direct possession of the
property. He has an indirect possession of the property. But in this type of suit, the only plaint can
file a suit. The defendant is not allowed to file a suit.

Who cannot file an interpleader suit?

Defendants cannot file the interpleader suit because defendants are the claimant who claims the
property or debt from the plaintiff. The plaintiff is only allowed to file a suit in the court. And the
plaintiff only pays the cost of the suit in the court. But defendants only litigate in court in the subject-
matter. Defendants are free from all liability after filing the suit in the court.

Interpleader suit by agents

An Agent cannot file an interpleader suit against his owner or the party. He cannot even claim
anything from the tenant and landlord.

Case law:

Smt. Mohan Devi V. SH. Gokal Chand And Anr

Facts of the case:

The tenant filed a case against the landlord in court under an interpleader suit for threatening them
to pay the rent of the house. But according to the tenant, he is paying the rent according to the date
and time. Defendant 1 claimed that he lowers the rent as the rent is 250/- per month but he lowers
the rent to 200/- per month. But after the relevant fact, it has been noticed that defendants tried to
threaten the tenant to pay the rent. When the written statement is given by the defendant he
admitted that tenant is paying 250/- per month. But according to order 33, rule 5 of CPC the suit is
not maintainable. The RC and E officer observed that the tenant did not give any evidence related to
his shop and it is clearly mentioned in the evidence that the tenant is not the owner of the shop and
had let it out to one Alladia. He accordingly declared that the shop was vacant.

Interpleader suit by Railway Company

Railway Company can file a suit against agent and third party under order 35 of rule 5.

Case law:

Chhaganlal Himatlal vs. the Bombay, Baroda and Central India Railway
Facts of the case:

The railway company has filed a suit in the interpleader suit against the agent and third party
claiming consignor that the company is not an agent of the consignor. According to the provisions of
the railway act, the company is in direct contract with the consignor for the carriage of goods. So the
railway company has claimed that the company is not an agent of the consignor but they are in
contract with the consignor for the carriage of goods. The court gives the decision that in virtue of

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Order XXXV, Rule 5 of the Civil Procedure Code, Railway Company is not competent to constitute an
interpleader suit as it was an agent of the consignors.

Interpleader suit by tenants

No agents can sue their principles and no tenants can sue their landlords in the interpleader suit for
compelling him to interplead with other person makes a claim related to the tenants through the
landlord. If the other person is claiming the property with the old landlord who has no direct
possession of the property and tried to ask for the rent with the tenant. Then tenant can file an
interpleader suit.

Case law

Neeraj Sharma vs. The District Sangpur Gram

Facts of the case:

Shanti Devi who died in the year 1922 is the owner of the premises. After the death of the owner of
the premises the petitioner, Neeraj Sharma claimed that he is the owner of the premises. The
respondent takes the premises in dispute from Smt. Shanti Devi who is already dead. Then the
petitioner filed a petition for the application for ejectment of the respondent society on the ground
of non-payment of rent. After that, the petitioner filed a second petition based on the same ground.
In judgment, the provisions of Order 35 Rule 5 of C.P.C are not applicable to the case because the
plaintiff does not point out to anyone defendant to be his landlord.

Conclusion
At last, I would conclude my topic by saying that interpleader suit means the suit which was filed by
the plaintiff on behalf of defendants because the actual owner of the property or debt dies and
plaintiff who is in the indirect possession of the property can file a suit on behalf of defendants, who
claim for the ownership of the property. Because this has one more than the defendant. There is
collusion between defendants. Defendants only litigate in court in front of judges. Plaintiff has no
direct possession of the property he is only there to sue in court to decide who will be the actual
owner of the property or debt. He is liable for the amount of money for the suit filed. An
interpleader suit is defined in the Civil Procedure Court. Interpleader suit can only be file under Res
Judicata. This suit cannot be reviewed in any other court of law. This suit once reviewed in the court
of law then it cannot be reviewed twice.

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Q7
Discuss arrest before judgement.
SYNOPSIS
INTRODUCTION
NATURE AND SCOPE
THE DECREE FOR ARREST AND DETENTION MAY BE PASSED IN THE FOLLOWING CASES GIVEN
UNDER ORDER XXI:
PROCEDURE TO BE FOLLOWED
CONCLUSION

Introduction
A decree is passed by the court under the Code of Civil Procedure (hereinafter referred to as CPC) to
decide the rights and liabilities of the persons in a matter of controversy. The person in whose favour
a decree is passed is called decree-holder and against whom the decree is passed is judgement
debtor. There are various ways under civil law by which a decree can be passed. One such way is
“arrest and detention”. The law relating to arrest and detention in the CPC has been dealt with under
Section 51 to 59 and Rules 30 to 40 of Order XXI.

Nature and scope

The provision is remedial in nature. It seeks to provide a remedy to the decree-holder where a suit
has been decided in his favour. Such a remedy can be in the form of arrest and detention of the
judgement debtor if he fails to satisfy the decree passed against him.

The provision applies to every person against whom the decree is passed under the Code. When a
decree is passed in favour of a person, then that person has to move to the court for execution of
that decree. The court then according to the provisions of the Code can order for arrest and
detention of the judgement debtor.

When arrest and detention may be ordered?

Under Section 51(c) of CPC, it is given that when a decree-holder moves to the court for executing a
decree, the court can execute such decree by the arrest and detention of the judgement debtor.

The decree for arrest and detention may be passed in the following cases given under Order XXI:

Under Rule 30, a decree for the payment of money can be executed by the arrest and detention of
the judgement debtor.
-Under Rule 31, where the decree is for a specific moveable party, it can be executed by the arrest
and detention of the judgement debtor.
-Under Rule 32, where the decree is for specific performance of the contract or an injunction, the
court can execute the decree by arrest and detention of the judgement debtor.

Who cannot be arrested?

There are certain classes of persons that are exempted from arrest and detention under the various
provisions of CPC. Such persons include:

1. Women, as per Section 56,

2. Judicial officers, as per Section 135(1),
3. Where a matter is pending, their pleaders, mukhtars, revenue-agents, and witnesses acting in
obedience to a summons, under Section 135(2),
4. Members of legislatures, as per Section 135A,

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Classes of persons, whose arrest according to the State 5.Government, might be attended with
danger or inconvenience to the public, under Section 55(2), and
6. Where the decretal amount is less than two thousand rupees, under section 58(1A).

Procedure to be followed
The procedure to be followed for arrest and detention is provided under Section 55. It says that a
judgement debtor can be arrested at any hour or any day during the execution of a decree, and after
such arrest, the person must be presented before the court. However, there are certain restrictions
regarding entry and time. They are as follows:

1. That no dwelling house shall be entered after sunset and before sunrise.
2. That no outer door shall be broken in order to enter the house unless such a house is the
occupancy of the judgement debtor, in case he refuses to prevent access thereto.
3. Where the room is in occupancy of a woman who is not the judgement debtor and does not
appear in public due to the customs, the officer shall give reasonable time and facility to her to
withdraw therefrom.
4. Where there is a decree for the payment of money, and the judgement debtor pays the full
decretal amount and the costs of the arrest to the arresting officer, he shall not be arrested.

Notice
Under Order XXI Rule 37, a person who is to be arrested shall be given a show-cause notice to appear
before the court and give reasons as to why he should not be committed to the civil prison in
execution of the decree. However, such notice is not necessary if the court is satisfied, by affidavit or
otherwise, that the effect of delaying the execution can lead to absconding of the jurisdiction by the
judgement debtor. If the judgement debtor does not appear before the court after serving of the
notice, if the decree-holder so requires, the court shall issue a warrant to arrest such person.

Conclusion
The purpose of arrest and detention is to give relief to a decree-holder and commit the judgement
debtor to the civil prison if he does not pay the decretal amount despite having means to pay the
same. However, it also protects honest debtors, where his inability to pay is supported by a
reasonable cause. The court has to afford the right to be heard to the debtors in order to ensure
proper justice

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Q8
What is injunction? What are temporary injunctions? Explain the grounds & principles for granting
temporary injunction. Factors considered by court before granting temporary injunction.
SYNOPSIS
INTRODUCTION
INJUNCTION – MEANING AND OBJECT
WHAT ARE THE BASIC PRINCIPLES OF TEMPORARY INJUNCTION?
GROUND FOR GRANTING TEMPORARY INJUNCTION FROM COURT
FACTORS
CONCLUSION

Introduction
Have you ever imagined what happens if a person tries to demolish or infringes your property? What
are the possible claims you can ask from the competent court to stop the demolition or infringement
of your property? In law under civil trial, an Injunction is an order which can be passed by a court
against one or more of the parties to refrain from doing, or less commonly to do, some specified act
or acts.[1]

Injunction – meaning and object

An Injunction is an equitable remedy which is “a judicial process that compels a party to refrain from
doing or to do a particular act or thing”. If any person disobeys the Order of Injunction passed by the
Competent Court then there can be stiff monetary penalties and even imprisonment in certain
instances. The primary purpose of granting interim relief is the preservation of property in dispute till
legal rights and conflicting claims of the parties before the court are adjudicated. However, Injunction
can also be modified or dissolved if circumstances change in future. Section 94, 95 and Order 39 of
the Civil Procedure Code precisely talks about the Injunctions and whereas, the temporary and
perpetual injunctions are defined under section 36 to 42 of the Specific Relief Act.

Temporary Injunction: The temporary Injunction is been granted by the Court when the Defendant is
about to the make some injury to the property of the Plaintiff or threatens the Plaintiff to dispossess
the property or creates a thirty party interest in the property, then in such situation, the Court may
grant a temporary injunction to restrain the Defendant to do such an act or make other order to
prevent the dispossession of the plaintiff or prevent the causing of injury to the plaintiff in relation to
any property in dispute or creating any thirty party rights in the property.
Temporary injunction is an interim remedy that is raised to reserve the subject matter in its existing
condition and which may be granted on an interlocutory application at any stay of the suit. Its
purpose is to prevent the suspension of the plaintiff’s rights. Section 94 of the CPC provides the
supplemental proceeding so that Plaintiff can prevent this right, wherein Section 94 (c) and (e) of
Code of Civil Procedure, the Court may grant a temporary injunction or make such other
interlocutory orders. These are temporary injunction because its validity is until the further order
passed by the court or until the final decree of the case.

What are the basic principles of temporary injunction?

Granting the temporary injunction is the exercise of the discretion which should be in judicial
manner. No hard and fast rule can be laid down for guidance of the court to that effect. Therefore it
is well settled that, before granting the Temporary Injunction, the Judge has to consider whether the
Application is falling into below-mentioned categories/ has Plaintiff shown following points[3]:

 Prima Facie Case

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 Irreparable Injury
 Balance of Inconvenience
 Other Factor
Let us understand the meaning and how all the basic ingredients are identified in below mentioned
cases laws;

Is it a Prima Facie case: In every application, the Applicant/Plaintiff must make out a prima facie case
in support of the right claimed by the Plaintiff. The Court should be pleased that there is a bonafide
dispute between the parties wherein the investigation is needed. The Plaintiff is given the burden to
prove and satisfy the court by leading evidence or witness that he has a prima facie case in his
favour. The plaintiff should come to Court with clean Any material facts are suppressed by the
Plaintiff then, in that case, the Plaintiff is not liable for any relief.

Is there any Irreparable Injury: Further, the applicant must satisfy the court that he will suffer
irreparable injury if the injunction is not granted. The Court is satisfied that the Plaintiff needs to be
protected from the consequences of apprehended injury. An injury will be viewed as irreparable
wherein there exists no certain monetary standard for calculating damages.
The expression irreparable injury however does not mean that there should be no possibility of
repairing the injury. It only means that the injury must be a material one. i.e. which cannot be
adequately compensated by damages. An injury will be regarded as irreparable where there exists no
certain pecuniary standard for measuring damages.

Is there any Balance of Convenience: The Applicant must prove in this application that there is the
balance of convenience must be in favour of the applicant i.e. the comparative mischief, hardship or
inconvenience which is likely to be caused to the Applicant if the injunction is been refused. The
balance of convenience comes into the picture when there is doubt as to the adequate remedies in
damages available to either party or both.

Other factors: The Court also considers some other factors before granting injunction. The relief of
injunction may be refused on the ground of delay, laches or acquiescence or whether the applicant
has not come with the clean hands or has suppressed material facts, or where monetary
compensation is adequate relief.

Ground for granting temporary injunction from court

Under Section 95 of CPC, it is specifically mentioned that the temporary injunction may be granted in
any suit wherein the Court is satisfied that there are sufficient grounds to grant the temporary
injunction. If the Plaintiff fails to prove the sufficient grounds in his application then the Court may
pass the suitable compensation to the defendant, in case the Defendant is claiming in his application.

Factors
Section 95 read with Order 39 Rule 1 and 2 empowers the Court to pass the temporary injunction
[11]:
-When there is a reasonable apprehension and danger of alienation or disposal of property by any
party to the suit or by wrongful waste of the property; or
-When there is an apprehension of alienation or disposal of the property to defraud creditors; or
-Where Defendant threatens to dispossess the Plaintiff or otherwise causes injury to the interest of
the Plaintiff or otherwise causes injury to the interest of Plaintiff in relation to the disputed property;
or
-When the Defendant is about to commit a breach of contract; or
-Any other injury is likely to be caused or likely to be repeated; or

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-Where the Court is of the opinion that for protection of interest of any party to the suit or in the
interest of justice injunction or stay is required and necessary.

Temporary Injunction when cannot be granted

-To restrain any person from prosecuting a judicial proceeding at the institution of the suit, in which
injunction is sought, unless restraint is necessary to prevent multiplicity of proceedings.
-to restrain any person from instituting or prosecuting any proceeding in a Court not subordinate to
that, from which injunction is sought.
-to restrain any person from applying to any legislative body,
-to restrain any person from instituting or prosecuting any proceeding in a criminal matter,
-to prevent the breach of a contract the performance of which could not be specifically enforced.
-to prevent on the ground of nuisance, and act of which it is not reasonably clear that it will be a
nuisance.
-to prevent a continuing breach in which the plaintiff has acquiesced,
-when equally efficacious relief can be certainly be obtained by any other usual mode of proceeding
except in case of breach of trust,
-when conduct of the plaintiff or his agents has been such as to disentitle him to the assistance of
the Court.
-when the plaintiff has no personal interest in the matter [12].

Conclusion
In view of the aforementioned, it can be determined that grant of temporary injunction cannot be
requested by the party as a matter of right nor can be denied by the Court arbitrarily. The injunction
is an equitable remedy and attracts the application of the maxim “he who seeks equity must do
equity”. The Court has complete discretion to grant an injunction or to refuse it. The discretion to be
exercised by the Court is shown by the principles mentioned hereinabove and depends on the facts
and circumstances of each case. The relief cannot be claimed as an affair of right however
worthwhile the applicant’s case may be. The power to grant an injunction must, therefore, be
exercised with the utmost prudence, vigilance, and care.

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Q9
Who is a Receiver? What are his powers and functions? How is he appointed and removal.
SYNOPSIS
INTRODUCTION
WHO IS A RECEIVER?
OBJECT
APPOINTMENT OF A RECEIVER
POWERS OF A RECEIVER
DUTIES AND LIABILITIES OF A RECEIVER
CONCLUSION

Introduction
The Civil Court in India has the power to issue various interim orders according to the needs and
exigencies of each case. One such power is the power to appoint a receiver, i.e., an officer of the
court who looks after the subject matter of the suit during its pendency, under Order 40 of the Code.
He is impartial and independent, and acts as a reasonable prudent man in the discharge of his duties.

Who is a Receiver?
The Code of Civil Procedure does not define the term “Receiver”. But it is generally understood as “A
court appointed person who is appointed because the court thinks that neither party should be in
possession of the property in dispute”.

Object
The object behind appointment of a receiver is to protect, preserve, and manage the property during
the pendency of the litigation. It is a part of the Court machinery that seeks to safeguard interests of
both the parties to the suit.

Appointment of a Receiver
The Court before whom the proceedings are pending, may appoint a receiver of the property,
whether before or after decree, wherever it appears to be just and convenient. [5]

It may remove any person from the possession or custody of the property [6]; and commit the same
to the possession, custody or management of the receiver [7].

Thus, the provision confers a discretionary power on the Court to remove any person and appoint a
receiver so as to serve the ends of justice. However, where no party to the suit has the right to
remove a person from the possession or custody of the property, the Court cannot dispossess such a
person.[8]

The Landmark Case of T. Krishnaswany Chetty v. C. Thangavelu Chetty [9], the Madras High Court
enumerated the five principles that must be kept in mind before appointing a receiver.

These “panch sadachar” are:

-The appointment of a receiver is a discretionary power of the Court. However, this discretion is
neither arbitrary nor absolute, and must be exercised taking into account all the circumstances of the
case, for protecting the rights of all parties interested in the controversy and the subject-matter. It is
one of the harshest remedies under law as it deprives a party of the possession of property even
before final judgement is pronounced, and so, must only resorted to where no other adequate
remedy exists.

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-A receiver can only be appointed if the plaintiff prima facie proves that he has an excellent chance of
succeeding in the suit.
-The plaintiff must show some emergency or danger or loss demanding immediate action, and a
court must not appoint a receiver merely on the ground that it will do no harm.
-An order appointing a receiver will not be made where it has the effect of depriving a defendant of a
‘de facto’ possession since that might cause irreparable wrong.
-The party who makes the application must be free from blame and must not have resorted to
laches, delay, acquiescence etc.

Powers of a Receiver
Being a representative of the Court, the receiver functions its directions.[11] Order 40 R 1(1)d)
enumerates that the Court may confer upon the receiver any or all of the following powers:

1. To institute and defend suits;

2. to realize, manage, protect, preserve, and improve property;
3. collect, apply, and dispose of rents and profits;
4. execute documents;
5. Such powers as the court thinks fit.

Duties and Liabilities of a Receiver

Under Rule 3, the duties of the Receiver have been mentioned as follows:

1. furnishing security accounting for the income that he will receive from the property;
2. submission of accounts as directed by the Court;
3. payment of amount due;
4. Responsibility for any loss to the property that lapped due to his willful default or gross
negligence.
5. It must be borne in mind that the, the receiver, being a representative of the Court must
discharge all his rights and duties personally, and cannot delegate or assign such rights or
duties entrusted to him by the Court.[15]

According to Rule 4, where a receiver fails to submit his accounts or pay such amount in the time and
manner as prescribed by the court, or, where, by his wilful default or gross negligence, there has
been a loss to the property, the Court may have the receivers own property attached and sold to
recover the loss caused by him. The balance (if any) shall be paid to the receiver.

Conclusion
A receiver, therefore, is an important part of the Court machinery that functions to safeguard the
interests of the parties to the suit, by managing a property pendente lite. He is supposed to be
impartial, neutral, and must act as a reasonably prudent man would with respect to his own
property.

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Q10
What are 'Appeals'? Discuss the different classes of appeals provided under CPC.
SYNOPSIS
INTRODUCTION
MEANING OF APPEAL
ESSENTIALS OF APPEALING CASES
WHAT ARE THE VARIOUS FORMS OF APPEAL UNDER CIVIL LAW?
CONCLUSION

Introduction
An appeal is a remedial concept determined as an individual’s right to seek justice against an unjust
decree/order via referring it to a Superior Court. Sections 96 to 99A; 107 to 108 & Order 41 of the
Code of Civil Procedure, 1908 deal with appeals from original decrees known as First appeals

Meaning of appeal
The term ‘appeal’ nowhere has been defined under the CPC. The Black’s Law Dictionary, while
construing the concept of ‘appeal’ in its most original and natural sense, explains it as “the complaint
to a superior court for an injustice done or error committed by an inferior one, whose judgment or
decision the Court above is called upon to correct or reverse. It is the removal of a cause from a
Court of inferior jurisdiction to one of superior jurisdiction, for the purpose of obtaining a review and
retrial”.

Essentials of appealing cases

An appeal is a proceeding where a higher forum reconsiders the decision of a lower forum, on
questions of law & fact with jurisdiction to confirm, reverse, modify the decision or remand the
matter to the lower forum for fresh decision in compliance of its directions. The essentials of
appealing cases can be narrowed down to 3 elements:

A decree passed by a judicial/administrative authority;

An aggrieved person, not necessarily a party to the original proceeding; and
A reviewing body instituted for the purposes of entertaining such appeals.

What are the various forms of appeal under civil law?

The broad categorization of appeal divides it into two parts i.e. first appeal and second appeal. The
first appeal is described under Section 96 of the CPC and it provides that an appeal shall lie from a
decree passed by any Court exercising original jurisdiction to the authorized appellate courts, except
where expressly prohibited.

The provision of second appeal is provided under Section 100 of CPC which states that an appeal
shall lie to the High Court from a decree passed in the first appeal by a subordinate court, excepting
the provisions speaking to the contrary. The scope of exercise of jurisdiction under this Section is
limited to a substantial question of law framed at the time of admission of appeal.

Moreover, there are sub-categories under appeals which are mentioned below:-

1. Appeal from original decree.

2. Appeal from order.
3. Appeal from appellate decree/Second appeal to High Court.

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4. Appeal to Supreme Court.

5. Appeal from original decree:

Section 96 of CPC deals with appeals from original decree. Usually, first appeal lies from every
original decree passed by any court. It is marked here that appeal may lie from an ex-parte decree,
but appeal shall not lie from a decree passed with consent of both parties.

Appeal from order:

Sections 104 to 108 and Order 43 of the CPC talks about appeals against orders. According to these
provisions, certain order are appealable other whereas, appeal could not be lie against some orders.
Order can be defined as “the formal expression of any decision of a civil court which is not a decree.”
An appeal from order can be filed within ninety days before the concerned High Court and within
thirty days from the date of order, before another court.

Section 106 provides that appeals against orders in cases in which they are appealable shall be
brought before the court to where an appeal would lie from the original suit. Howbeit, Section 105
states that every whether appealable or not, except an order of remand can be attacked in an appeal
from the final decree on the ground that there is an error, defect or irregularity in the order and that
such error, defect or irregularity affects the decision of the case.

Appeal from appellate decree:

Section 100 of the CPC provides for second appeal to High Court against decree passed by appellate
court. The procedural right of the second decree is provided to either of the parties to a civil suit who
has been adversely affected by the decree passed by a civil court. It is notable here that general rule
is that second appeal lies to the High Court only if the court is satisfied that it involves a substantial
question of law.

In Mahindra & Mahindra Ltd. v. Union of India & Anr. 1979 AIR 798, the Apex Court observed that
under the proviso, the Court be ‘satisfied’ that the case involves a substantial question of law and not
a mere question of law. The reason for permitting the substantial question of law to be raised should
be recorded by the Court.

However, as per Section 103, the High Court has power to determine the issues of fact if there is
sufficient evidence on record.

Conclusion

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Q11
What is Review? What are the conditions for exercise of revisional jurisdiction? Explain.
SYNOPSIS
INTRODUCTION
REVIEW
OBJECT
CIRCUMSTANCES WHEN A REVIEW PETITION IS MAINTAINABLE
CONCLUSION

Introduction
In order to understand concepts such as Reference, review and revision, as per Code of Civil
Procedure, 1908 (CPC), a party, who is offended by the decision of the court, can reach out to higher
court by way of appeal against the decision given by the trial court/lower court. In case of appeal,
the entire judgement is scrutinized and heard again by the higher authority. However, in the case,
where there is a prima facie error on technical or procedural ground, the parties are not required to
file a fresh case and appeal. In such cases, CPC has the provision of reference review and revision
under section 113, 114 and 115 of CPC respectively, which shall be discussed in detail in this article.

Review
Section 114 of Civil Procedure Code defines the provision of review. In case of review, the party who
is not happy or aggrieved with the order of the court can file an application for review in the same
court which has passed the decree. This provision has been made so as to facilitate the court to
review their own decree or judgement and rectify the same in case any error has been made while
passing the judgement.

It was held in case of Ram Baksh v. Rajeshwari Kunwar, AIR 1948 AII 213 that the option of review is
still there even if the appeal has been dismissed on any ground.

Order 47 of the CPC defines the procedure to be followed in case of review. In the following
situation, the application for review can be filed by the parties:

The decree or judgement is appealable however; no appeal has been preferred under the law.
In case of no provision for appeal has been mentioned in the law for certain decree or judgement.
The Court of Small Causes has passed the decision.
The law defines certain grounds on which application for review can be filed:

Where there are new discoveries of the facts, which were not in knowledge or could not produce at
the time of passing of decree due to ignorance.
In case, the error is found on the face of the record and does not require the argument of the entire
case again. These errors are not related to wrong decisions made by the court.
Any other case, in which case the delusion of the court can be considered as sufficient ground.
The Apex court in the case of S. Nagraj & Ors. V. State of Karnataka & Anr. 1993 Supp (4) SCC 595 held
that any other sufficient ground has an expanded meaning. An order passed in case of
misinterpretation of the true facts can be considered as sufficient ground.

Object
Any human being can make a mistake or error and so do the judges. So, the procedure of Review has
been embedded in the legal system to correct the mistakes and prevent any miscarriage of justice as
held in the case of S.Nagraj v. State of Karnataka. The review application is not an appeal or revision
made to the superior court, but it is a request to recall and reconsider the decision made before the
same court.

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Circumstances when a review petition is maintainable

A review petition is maintainable before the court under the following circumstances:

When no appeal lies in the case

According to section 114 of the code, when no appeal lies from an order or a decree then it can be
reviewed by the Court. In the case of Ganeshi Lal v. Seth Mool Chand, it was held that taking into
consideration sub-clause(c) of Section 114, the application of review against a decree passed by a
Small Causes Court is eligible.

Even if an appeal is dismissed on the ground of being incompetent or time-barred, the party can go
for review procedure as held in the case of Ram Baksh v. Rajeshwari Kunwar.

When appeal lies in a case but not preferred

When the provision of appeal is available but it is not preferred by the aggrieved party then also a
review petition is maintainable. As held in the case of Sitaramasastry v. Sunderamma an application
for review can be presented before the court only till no appeal is preferred against that order. The
court cannot entertain an application for review when an appeal is already instituted before making
an application for review.

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Q12
What is Revision? How does it differ from an appeal?
SYNOPSIS
INTRODUCTION
Revision
Object
Conditions
Differences b/w Revision and Appeal
CONCLUSION

Introduction

Revision
If we go to the literal meaning, “to revise” stands for “to look again” or “to look repeatedly at” or “to
go through a matter carefully and correct where necessary”. The High Court has been empowered
with the Revisional jurisdiction under section 115 of the Code of Civil Procedure,1908.

Object
The object behind empowering the High Court with Revisional jurisdiction is to prevent arbitrary
illegal or irregular exercise of jurisdiction by the subordinate court. Under section 115 the High Court
is empowered to keep an eye on the proceedings of subordinate courts that the proceedings are
being conducted in accordance with the law, under its jurisdiction for which it is bound for and in
furtherance of justice as held in the case of Major S.S Khanna v. Brig. F.J. Dillion.

But, the judges of the subordinate court have absolute jurisdiction to decide a case and even when
they have wrongfully decided a case, they do not commit any “jurisdictional error”. With the power
of revision, the High Court can correct the jurisdictional error when committed by the subordinate
court. The provision of revision provides an opportunity to the aggrieved party to get their non-
appealable orders rectified.

Conditions
Section 115 of the Code of Civil Procedure Code lays down all the conditions when the High Court
can exercise its Revisional jurisdiction:
1. The case must be decided.
2. The Revisional jurisdiction is exercised when no appeal lies in the case decided by the subordinate
court.
3. The subordinate court has decided such case by:
4. Exercise of jurisdiction which is not vested to that court by law., or
5. It has failed to exercise the vested jurisdiction, or
Illegal exercise of the vested power or with immaterial irregularity.
6. The High Court is not entitled to vary or reverse the order or decision of the subordinate court
unless such order is in favour of the party who has applied for revision. Also, the Revisional
jurisdiction is not to be exercised if in that matter appeal lies to the High Court.
So, by analyzing section 115, we can observe that the revision is done mainly on jurisdictional errors
by the subordinate Court.

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Differences b/w Revision and Appeal

1. An application for revision lies only to the High Court.
An appeal can be made to any court superior to the court passing the decree or order.
2. A Revisional application can be made to the High Court for any decision made by the subordinate
court when no appeal lies for such decision.
An appeal lies only from the decree or order passed by the subordinate court.
3. Revisional power of the High Court is totally discretionary.
The right to appeal has been provided by the statue as a substantive right.
4. The grounds for revision is the jurisdictional error.
An appeal lies on the question of fact or question of law or, both.
5. For revision, filing an application is not necessary. The high court may exercise the Revisional
power as suo moto.
For an appeal a memorandum of appeal to be filed by the aggrieved party before the superior court
is a must.

Conclusion

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Q13
What is Reference? State the circumstances on which reference can be made & how does it differ
from Review.
SYNOPSIS
INTRODUCTION
REFERENCE
OBJECT
DISTINCTIONS B/W REFERENCE AND REVIEW
CONCLUSION

Reference
Section 113 of Civil Procedure Code deals with the provision of reference. Under the provision of
Section 113, a lower or subordinate court can reach out to higher court for the doubt in order to
avoid the misinterpretation of the law which is called reference. Parties through an application can
move the reference to the High court. Lower Court can apply the provision of reference suo-moto in
case of any doubt with respect to any legal provision. The lower court is not bound to refer to the
High Court other than in case of validity of legal provision. It helps the lower court to avoid
commission of error while pronouncing the judgement.

Object
The object behind the provisions of Reference is to empower the subordinate court to obtain the
opinion of the High Court in non-appealable cases when there is a question of law so that any
commission of error could be avoided which couldn’t be remedied later on.

As held in the case of Diwali Bai v. Sadashivdas, the reference must be made before passing of the
judgement of the case.

Distinctions b/w Reference and Review

1. The case is referred to the High Court by the subordinate court and not by the party for
reference. For review, the application is made by the aggrieved party.
2. The matter of reference can be decided by the High Courts only. A review is done by the
court which has passed the decree or made the order.
3. Reference can be made only when the suit, appeal or execution proceeding is pending. A
review can be done only after the decree or order is passed.
4. Grounds of reference is different than a review. Grounds for review are different.

Conclusion

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