UNIT - 1

Q no 1. What is Procedural Law and Substantive Law? Distinguish

between Procedural Law and Substantive Law
Introduction.
Laws are the set or system of rules established by the government for
the citizens to obey and also to govern their behaviours and conduct.
They are usually enforced by governmental institutions. The
mechanism of the law ensures that all citizens abide by them and that
society can function safely without any obstructions. In India, the laws
are made by the Indian Parliament, implemented by the executives and
interpreted and enforced by the judiciary
The Court defined substantive laws as the laws which fix duties and
establish rights and responsibilities among and for natural or artificial
persons, while procedural laws are those which prescribe the methods
in which such rights and responsibilities may be exercised and enforced
respectively.

The Substantive Law and the Procedural Law are two important
branches of the Law. The terms Substantive and Adjective seem to have
been invented by Bentham in 1843.
Austin criticised the distinction saying “it cannot be made the basis of
a just division”.
Holland in this said “ Treatise and jurisprudence popularised the terms
Substantive and adjective and that have been accepted by writers in
general.
Meaning of Substantive Law:
Substantive is basically derived from common statutory constitution
and from the principles found in judicial decisions following the
precedents to cases with similar facts and situations. It is the Law that
creates, defines, or regulates rights and duties.
Substantive laws define the rights and responsibilities in civil law and
crimes and punishments in criminal law. Substantive laws are
codified in legislated statutes or may be practiced or modified through
precedent, especially in the common law system. These laws can also
be enacted through the initiative process. Substantive laws refer to the
actual claims and defenses to refer to in any particular case.

E.g.: Penal Law, Law of Contract, Law of Property, Specific relief act,
etc., are Substantive Law.
Kinds/ Types of Substantive Law:
There are Two types of Substantive Las.
a) Substantive Civil Law and
b) Substantive Criminal Law.
a). Substantive Civil Law: Substantive civil laws are the laws which
deal with disputes between any individuals, organisations or between
both of them where the victim is entitled to compensation. Using
substantive civil laws, the courts find out whether the legal rights of the
plaintiff have been violated or not.
Substantive civil laws do not provide any constitutional protection to
any of the parties but provide the right to appeal to both the parties.

Eg.: The Indian Succession act, 1925 deals with Hindus and Muslims
in India, Indian Contract act,1872, Transfer of Property Act,1882 etc.
b). Substantive Criminal Law: The Indian Penal Code defines various
offences and lists the elements that must be proved to convict a person
of crime.
Substantive criminal laws deal with criminal offences and the
punishments to be awarded for each of these criminal offences.

Unlike substantive civil laws, substantive criminal laws offer

constitutional protections to the accused from the very beginning of the
trial. However, here only the defendant can appeal instead of both the
parties as in the case of substantive civil laws.
Ex.: Murder, Robbery, Rape, Assault etc.

2). Procedural Law: Procedural Law deals with the enforcement of

Law that guided and regulated by the practice., procedure and
machinery. This is very important in administration
In contrast to substantive laws, procedural laws, also known as
Adjective Laws, are the laws which act as the ‘machinery’ for enforcing
rights and duties. Procedural laws comprise the rules by which a court
hears and determines what happens in civil, criminal or administrative
proceedings, as well as the methods by which substantive laws are
made and administered. The rules are designed to ensure a fair and
consistent application of due process and fundamental justice to all
cases before any particular court.

Procedural laws are made to ensure the best distribution of judicial

resources. All procedural laws are made following the due process of
the law.

Types of procedural laws

Based on these, the procedural laws are primarily of two types:

1. Civil procedural laws or laws of civil procedure and

2. Criminal procedural laws or laws of criminal procedure

1. Laws of Civil Procedures

Laws of Civil Procedures comprise the rules, regulations and standards
for the courts to follow during the cases relating to civil matters and
various civil trials.

2. Laws of Criminal Procedures

While substantive criminal laws deal with punishment for criminal

offences against public and private individuals. The laws of criminal
procedure can be termed corollary where these laws lay down the
criminal procedures. These laws describe how criminal law should be
applied and its procedures.

Differences between substantive laws and procedural laws

Topic Substantive laws Procedural laws

Substantive laws deal with the Procedural laws describe

legal rights and obligations of the ways and methods
Subject
the individuals among following which
matter
themselves and towards the substantive law is
state. enforced.

Procedural laws
exclusively deal with the
These laws control and govern
Objective proceedings in the court
the rule of law as a whole.
and the methods to start a
legal case.

Procedural laws are

applied in both legal and
Context of Substantive laws are applied
non-legal contexts
application only in legal contexts.
including proceedings of
litigation.

Substantive laws are regulated Procedural laws are

Regulation by the Acts of Parliament or regulated by statutory
governmental implementations. laws only.

Substantive laws have Procedural laws only can

individual capacities to decide dictate the paths any
Capacity
the course of any legal legal proceeding should
proceedings. follow.
Q. 2 Notes on Distinction between Decree and Order :
Following are the notable points of distinction between the decree and
order.
Decree
1. A decree can only be passed in a suit, which commenced by
presentation of a plant. In other words, decree emerges only from
a plaint / suit.
2. Decree may be preliminary or final or partly preliminary and
partly final.
3. Every decree is appealable (unless otherwise expressly provided
under Section 96 of the code).
4. There is a provision for second
Order
1. An order may originate from a suit by presentation of a plaint or
may arise from a proceeding commenced by a petition or an
application from a suit or petition or an application from a suit or
petition or an application.
2. There can be no preliminary order.
3. Every order is not appealable (unless specifically provided for
under Sec. 104, Order 43, Rule 1 of the code
4. No such provision for second.
Q. 3 Notes on JUDGMENT
Meaning : 'Judgment' means "the statement given by the Judge on the
grounds of a decree or order [Section 2(9) of the Code]."
To constitute judgment, it should be a self contained document from
which it should appear as to what were the facts of the case and what
was the controversy which was tried to be settled by the Court and in
what manner.
In Balraj Taneza vs. Sunil Madan, AIR 1999 SC 3381)
The process of reasoning by which the Court came to the ultimate
conclusion and decree the suit should be reflected clearly in. the
judgment 2(9), Order 40, Rule 4(2)].
Every judgment other than that of a court of small causes should
contain:
(1) a concise statement of the case;
(2) the points for determination;
(3) the decision thereon; and
(4) the reasons for such decision.

Foreign Juagment: A5 per Section 2(6) of the Code 'foreign judgment

means the judgment of a foreign Court. The decree of a foreign Court
against a non-resident foreigner is a nullity.
A Foreign judgment, can, however, form a cause of action in.
India.
Foreign Court : According to Section 2(6) of the code, 'foreign Court'
means, -
"a Court situated outside India and not established or continued by the
authority of the Central Government." Indian Court will not give effect
to a foreign judgment."
An
Judge : As per Section 2(8) of the Code of Civil Procedure,
'Judge' means the presiding officer of a Civil Court. A 'Court' is an
agency created by the sovereign for the purpose of administering
justice. It is a place where justice is judicially administered. When a
Judge takes a seat in the Court, the Court is set to have assembled for
administering justice.
Therefore, the words 'Court' and 'Judge' are frequently used
interchangeably because a Judge is an essential constituent of the Court
since there can be no dispensation of justice without a Judge. But they
are not. stricto sensu synonyms. A Judge by himself does not constitute
a Court, he is only an essential part of the Court. A Judge cannot act in
a matter if he has a decuniary interest therein or is in any other way
interested or biased.
Q 4 .Notes on MESNE PROFITS
The right to possession is a sacred right guaranteed to al law-abiding
citizens. When a person is deprived of his possession he is not only
entitled to recover possession but also damages for wrongful
possession by another.
According to Section 2(12) of the Code of Civil Procedure, 1908,
'mesne profits of property means those profits which the person in
wrongful possession of such property actually received or might with
ordinary diligence have received therefrom, together wth interest on
such profits, but shall not include profits dine to improvements made
by the person in wrongful possession.
The mesne profits are a compensation, which is penal in nature.
It is clear from the above definition that, mese profits can be claimed
in respect of immovable properties and are awarded in form of
damages.
Object : The object of awarding a decree for mesne profits is to
compensate the person who has been kept out of possession and
deprived of enjoyment of his property even though he was entitled to
possession thereof.
Conditions: To claim mesne profits the following conditions are to be
satisfied.
1. The defendant should be in wrongful possession of the property.
2. The plaintiff should be entitled to actual possession.

Wrongful possession of the defendant is the very essence of a claim for

mesne profits. There is no occasion for mesne profits if possession is
not wrongful. The term wrongful means having no right to possession
as against the person claiming They are awarded to the plaintiff by way
of compensation for the period that he was ousted from possession if
his suit is decreed. The measure is not what tale plaintiff lost. A person
in wrongful possession is not liabe or fature o realize the highest
possible rates of rent and premium, i a fair rent has been realised from
the land.
Interest is an integral part of mesne profits. The plaintiff can claim
interest as a matter of right. But the rate of interest is in discretionary. It
should not exceed 6% per year.
Q. 5 Explain the Kinds of Jurisdiction

Introduction
The word 'Jurisdiction' literally means, "the power and extent of
authority of the court to try the cases". Jurisdiction is a process by
which the statute confers on the court to exercise its authority. The
extent of the authority or the limits may be with regard to territorial,
pecuniary, subject matter, parties etc.
Meaning: Jurisdiction means the power which a Court possesses to
entertain suits, appeals and applications, the legal authority to
administer justice.
In simple words, jurisdiction means power of the court to try a case/suit
and also to grant the relief prayed for.
Definition : Jurisdiction can be defined as "the authority, which a Court
has to decide matters that are litigated before it or to take cognizance
of matters presented in a formal way for its decision.”
Jurisdiction may be defined to be the power of the Courts to hear and
determine a cause, to adjudicate and exercise any judicial power in
relation to it.
Kinds of Jurisdiction
Jurisdiction of a civil court may be classified as follows:
• Territorial or Local Jurisdiction.
• Pecuniary Jurisdiction.
• Jurisdiction over the Subject matter.
• Original and Appellate Jurisdiction.
i) Territorial or Local Jurisdiction: Every Court has its local limits.
Beyond that limit it cannot exercise its power. This limit with regard to
area is called as territorial jurisdiction. This will be fixed by the
government.
ii)Pecuniary Jurisdiction: The word 'pecuniary refers to money or
involving/relating to money. There is a limitation on civil courts of
different grades to try suits/cases and to hear appeals of the different
amount of value.
The High Court and the Courts of the District Judge and the Civil Judge
have unlimited pecuniary Jurisdiction Other courts have only a limited
pecuniary jurisdiction.
iii), Jurisdiction over the Subject matter : The civil courts of
different nature have been assigned with different kinds of work/ cases
to be tried by them.
For instance, a small causes court; has authority to try only certain suits
of non-contentious types, e.g. suit in respect of loan on promissory
notes or bonds, suits recovery of price of goods supplied or work done
but it has no jurisdiction to try suits for partition or for injunction or for
immovable properties or for specific performance of a contract.
The cases of succession, guardianship and matrimonial matters i.e. the
cases of divorce, judicial separation, restitution of conjugal rights etc.
are to be tried by the District Court. Similarly, Industrial Tribunals,
Labour Courts have the jurisdiction to deal with the labour suits only.
The Administrative Tribunals deal only with the service matters of the
Government servants. The Sales-tax Tribunals deal only with the
disputes concerning sales tax. The Income-tax Tribunals deal only with
the disputes concerning income tax.
iv) Original and Appellate Jurisdiction : When a suit or petition is to
be filed, it has to be filed in the appropriate court competent to try it.
For instance, any matrimonial matter has to be filed in the district court.
Similarly, maintenance petition has to be filed in the court of a First
Class Magistrate. If the court has a jurisdiction to try a particular
case/suit at the first instance the jurisdiction is called 'Original
Jurisdiction'.
Plaintiff or petitioner or appellant defendant or respondent wants to
prefer an appeal, the appeal has to be filed before the appropriate court
competent to hear the appeal. Such jurisdiction of the court competent
hear the appeal is called the appellate jurisdiction
The Supreme Court, High Courts and District Courts are having both
original as well as appellate jurisdiction. These courts can hear both
appeals as well as original suits.
Jurisdiction of Civil Courts
Section 9 of the Code of Civil Procedure, 1908, confers power/
jurisdiction on the civil courts to try suits. The courts are empowered
to try the cases of civil nature and the cognizance of which is not
expressly barred. Section 9 reads as under:
The court shall (subject to the provisions herein contained) have
jurisdiction to try all suits of a civil nature excepting suits of which their
cognizance is either expressly or impliedly barred
Conditions: A civil court can exercise jurisdiction to try a suit if the
following conditions are satisfied -
i) the suit must be of civil nature and
ii) the cognizance of such a suit should not have been
expressly or impliedly barred.
Q. 6 What is Suit of Civil in nature and state whether a suit
regarding right to worship is suit is civil in nature.
Civil Nature : The word 'civil is not defined in the Code. It relates to
private rights and remedies of a citizen. A civil court can exercise
jurisdiction over a suit, if it is of civil nature. Suits are of two types: 1.
Suits which are of civil nature and
Suits which are not of a civil nature: The civil courts can try only
suits, which are of a civil nature. The Courts cannot try the second type
of suits.
According to the Explanation 1 to Section 9 of the Code of Civil
Procedure, a suit in which the right to property or to an office is
contested is a suit of a civil nature, notwithstanding that such right may
depend entirely on the decision of question as to religious rites or
ceremonies.
Examples: Following are the suits of civil nature:
iii) Suits relating to right to property.
iv) Suits relating to right of worship.
v) Suits relating to right to share in offering.
vi) Suits for damages for civil wrongs.
vii) Suits for specific relief.
viii) Suits for rent.
ix) Suits for restitution of conjugal rights.
x) Suits for dissolution of partnership.
xi) Suits for or on accounts.
xii) Suits for damages for breach of contract etc.
However, the following are the suits, which are not of civil nature-
i) A suit of declaration of a member of a caste refrained from
invitation to a caste dinner.
ii) A suit for expulsion of a member from the caste.
iii) Suits involving purely religious rites or ceremonies.
iv) Suits for upholding mere dignity or honour.
If the jurisdiction is taken away, the Courts can not entertain such suits.
It is specifically provided by Section_9. The bar of jurisdiction can be
of two types a) express bar and b) implied bar. The terms expressly
barred means barred by any specific statutory provision.
Section 11 of C.P.C. bars the Court from trying a suit if it is res judicata,
it is an express bar. Similarly there are several statutes which
specifically bar the suits connected with the subject matter covered by
those statutes, e.g. Income Tax Act, Sales Tax Act.
Motor Vehicle Act, Essential Commodities Act etc. The jurisdiction to
try a suit can also be impliedly barred. For example A suit for the
recovery of the costs incurred in a criminal case cannot be entertained
by the civil court. The reason is that it is barred by implication.
Q.7 Explain the scope and object of Doctrine of Res Subjudice.
(Stay of Suits Sec. 10)
The word 'Res' means, "a thing or matter" and the word
'sub-judice means, "under consideration or pending judicial enquiry.
The expression "Res sub-judice" means, "pending litigation or pending
adjudication by a Court". Section 10 of the Code of Civil Procedure
1908, deals with the doctrine of 'Res Sub-judice' or
'Stay of Suits'. When a suit is pending before a court of competent
jurisdiction, such suit between the same parties under the same title
shall not be tried by any court in India.
E.g.: 'A' sues 'B' as to title of a land in a Court of competent jurisdiction.
During the pendency of the suit (pending adjudication), if 'A', again
sued 'B' on the same subject matter in another court, such court has no
Power to try except to order for staying of further proceedings.
Section 10 runs as follows:
No Court shall proceed with the trial of any suit in which the matter in
issue is also directly and substantially in issue in a previously instituted
suit between the same parties, or between parties under whom they or
any of them claim litigating under the same title where such suit is
pending in the same or any other Court in India having jurisdiction to
grant the relief claimed, or in any Court beyond the limits of India
established or continued by the Central Government and having like
jurisdiction, or before the Supreme Court
Explanation: The pendency of a suit in a foreign Court does not
preclude the Courts in India from trying a suit founded on the same
cause of action.
It simple words, when a suit is pending before a competent court, it can
not be sued again in the same or any_other court of competent
jurisdiction.
If sued, the subsequent court is barred
to proceed with trial except to order for staying of all further
proceedings.
The object of Section 10
Is to prevent multiplicity of suits.
It prevents the courts from trying simultaneously two parallel suits in
respect of the same issue.
Section 10 is mandatory. The subsequent court can order the stay of all
further proceedings at any stage of the suit.
Conditions:
For application of Section 10, the following conditions are to be
satisfied.
1. Two suits : There must be two suits.One instituted earlier and the
other later. Suit includes a pending appeal also but not an application
for leave appeal.
2. Same subject matter : The subject matter of the previous (first) suit
and subsequent (second) suit must be one and the same.
3. Same parties : Parties to previous and subsequent suits must be the
same.
4. Pendency before competent court: The previously instituted suit
should be pending before the competent court.
5. Duel Competence: The court, which tried the first suit, should also
be competent to try the second suit.
Effect of contravention: The court in Sheopat Rai vs. Warak Chand,
case stated that; A decree passed in contravention of Section 10 is not
a nullity and cannot be disregarded in execution proceedings.
In a case not covered by Section 80, an order for stay may be made
under Section 151, of C.P.C., if the court considers that it is necessary
in the interest of justice and in order to avoid unnecessary harassment
to any of the parties.
Example: 'C' a resident of Calcutta, has an agent 'N' at Madras
employed to sell his goods there.
'N' sues "C' in Madras for balance of accounts in respect of dealings
between him and C.
During the pendency of the suit in Madras Court, 'C' institutes a suit
against 'N' in Calcutta for an account and for damages caused by 'N's
alleged negligence. Here the matter in issue in
'C's suit is directly and substantially in issue in 'N's suit, both the suits
are between the same parties. Therefore, if the Court al Madras is a
Court of competent jurisdiction to grant the relief claimed in 'C's suit,
the Calcutta Court must not proceed with the trial of 'C's suit and the
suit at Madras alone should proceed.
But if 'N' agent at Rangoon instead of Madras and the suit was brought
by him in the Rangoon Court, the Calcutta Court would not be
precluded from proceeding with the trial of 'C's suit, the Rangoon Court
being a 'Foreign Court.
Q. 8 What is Doctrine of Res Judicata? When this Doctrine be
applied? Elucidate. OR
Q. State the circumstances under which a suit is barred by Res
Judicata. OR
Q. Explain “Doctrine of Res Judicata”. State the conditions for
applicability of Doctrine of Res judicata. OR
Q. Explain the Nature, Object and Extent of conditions of Res
judicata.
Introduction
Section 11 of the Code of Civil Procedure, 1908, deals with the doctrine
of 'Res Judicata'. The term 'Res' means, "a thing","Judicata' means,
"already decided". The expression 'Res Judicata' collectively means, "a
thing already decided by a Court of justice".
According to Section 11 of the Code of Civil Procedure,
"no court shall try any suit or issue in which the subject matter and
parties are the same and had already been tried by the court of
competent jurisdiction".
Section 11 runs as follows:
No Court shall try any suit or issue in which the matter directly and
substantially in issue has been directly and substantially in issue in a
former suit between the same parties, or between parties under whom
they or any of them claim, litigating under the same title, in a Court
competent to try such subsequent suit or the suit in which such issue
has been subsequently raised, and has been heard finally decided by
such Court.
Explanation-1: The expression 'former suit' shall denote a suit which
has been decided prior to suit in question whether or not it was
instituted prior thereto.
Explanation-2: For the purposes of this section, the competent to a
Court shall be determined irrespective of any provisions as to a right of
appeal from the decision of such Court.
Explanation-3: The matter above referred to must in the former suit
have been alleged by one party and either denied or admitted, expressly
or impliedly, by the other.
Explanation-4: Any matter which might and ought to have been made
ground of defence or attack in such former suit be deemed to have been
a matter and substantially in issue in such suit.
Explanation-5: Any relief claimed. in the plaint, which is not expressly
granted by the decree, be deemed to have been refused.
Explanation-6: Where persons litigate bona fide in respect of a public
right or of a private right claimed in common for themselves and others,
all person interested in such right shall, for the purposes of this section,
be deemed to claim the persons so litigating.
Explanation-7: The provisions of this section shall apply to a
proceeding for the execution of a decree and reference in this section
to any suit, issue or former suit shall be constructed as references,
respectively, to a proceeding for the execution of the decree, question
arising in such proceeding and a former proceeding for the execution
of that decree.
Explanation-8: An issue heard and finally decided by a Court of limited
jurisdiction, competent to decide such issue, sha operate as res judicata
in subsequent suit,
The doctrine of 'res judicata' is very ancient and was accepted by Hindu
and Muslim jurists. Under the Raman Law,
it was known as "exceptio res judicatae, which signifies previous
judgement”.
i) Underlying Principles:
The doctrine of 'Resjudicata' is based on the following three maxims:
 1. Nemo debit lis vexari pro qua et eadem cause: It means, 'for one
and the same cause, no person should be vexed twice!
2. Interest republicae ut sit finis litium: It means, 'in the interests of
the State, there should be an end to a litigation'.
3. Res-judicata pro veritate occipitur : It means, 'every judicial
decision must be accepted as correct and conclusive truth"
Das Gupta. J, in Sathyadhan Ghosal vs. Smt. Deorajin. Debi (AIR
1937 Nag. 132) enunciated that “once a res judicata, it shall not be
adjudged again”.
The Supreme Court through Gajendra Gadkar. J, placed the doctrine on
a still broader basis in the case of Daryao vs.State of U.P. (AIR 1961
SC 1457).
The petitioners in the instant case had filed writ petitions in the High
Court of Allahabad under Article 226 of the Constitution and the same
were dismissed. Thereafter, they filed substantive petitions in the
Supreme Court under Article 32 of the Constitution.
The respondents raised a preliminary objection as to the maintainability
of the petitions in the Supreme Court: They (respondents) contended
that the prior decision of the High Court would operate as 'res judicata.
The Supreme Court upheld their contention and dismissed the petitions.
ii) Conditions: For application of the doctrine of 'Res Judicata, the
following conditions are to be satisfied:
1. There must be two suits or issues in which subject matter is the
same.
2. The previous suit must have been adjudicated by the competent
court and the subsequent suit must be pending.
3. The issues in the previous and subsequent suits must be directly
and substantially the same
4. Parties must be the same in both the suits and litigating under the
same title.
 5. The court which decided the previous suit must be a cour
competent to try the subsequent suit also.
The doctrine of Res Judicata is based on the public policy and is
founded on justice, equity and good conscience. It applies to all Civil
and Criminal proceedings.
Illustration: 'A' sues 'B' for damages for breach of contract. The suit is
dismissed.
'A' against 'B' for damages for breach of the same contract is barred.
A's right to claim damages from B for breach of contract having been
decided in the previous suit, it becomes res judicata, and cannot
therefore be tried in the subsequent suit.
'B' cannot be vexed twice over for the same cause (breach of contract).
Moreover, public policy also requires that there should be an end to a
litigation and for that reason the previous decision must be accepted as
correct, lest every decision would be challenged on the ground that it
was an erroneous decision and there would be no finality.
iii). Res Judicata and Estoppel : Some times, res judicata is treated as
a part of the principle of estoppel.
While Estoppel is a part of the Law of Evidence. Estoppel prevents a
man from saying one thing at one time and doing other at another time;
Res judicata prevents a man from repeating the same matter in
successive suits.
Following are the notable points of difference between Res Judicata
and Estoppel.
Res Judicata
1. It excludes the jurisdiction of the Court.
2. It results from the Court's decision..
3. It is based on the public policy.
4. It avoids multiplicity of suits.
 5. It binds both the parties to a litigation.
Estoppel
1. It shuts the mouth of the party.
2. It results from the acts of the parties.
3. It is based on the principle of equity.
4. It avoids multiplicity of representations.
5. It binds only that party who made the previous statement or
showed the previous conduct.
iv. Differences between Res judicata and Res Sub-judice:
Following are the differences between Res Judicata and Res Sub-
judicata.
Res Sub-judice (Sec.10) Res Judicata (Sec.11)
1. Section 10 of the Code of Civil
Section 11 of the code of
Procedure deals with Res Sub- Procedure deals with Res-
judice. Judicata
2. It relates to a matter pending in
It relates to a matter in a court of
a court of competent jurisdiction.
competent by a already decided
court of competent jurisdiction.
3. It bars the trial of the It bars the trial of the subsequent
subsequent suit and empowers suit, since the matter had already
the court to order stay of all been decided by the previous
further proceedings. court.

v. Constructive Res judicata

Explanation IV to Section 11 of the Code of Civil Procedure deals with
'Constructive Res Judicata. It runs as follows:
'Any matter which might and ought to have been made ground of
defence of attack in such former suit shall be deemed to have been a
matter directly and substantially in issue in such suit.
Constructive Res judicata is an artificial form of res judicata
 The rule of res judicata relates to a matter in issue already decided,
shall not be tried again by another court of competent jurisdiction.
But the rule of constructive Resjudicata provides that if a party had
taken a plea in a proceeding between him and his opponent, he should
not be permitted to take the same plea against the same party against
the same subject matter in a subsequent proceeding.
For res judicata, there should be a previous decision. Constructive res
judicata is applicable without previous decision. It is opposed to
consideration of public policy on which the doctrine of res judicata is
based.
E.g.: 'A' files a suit against 'B' to recover money on a Pronote 'B'
contends that the promissory note was obtained from him by undue
influence. The objection is overruled and suit is decreed. 'B' cannot
challenge the promissory note on the ground of coercion or fraud in
subsequent suit, in as much as he ought to have taken that defence in
the former suit. This is Constructive Res judicata.
Bar to Further Suit (Section 12)
According to Section 12 of the Code of Civil Procedure. where a
plaintiff is precluded by rules from instituting a further suit in respect
of any particular cause of action, he shall not be entitled to institute a
suit in respect of such cause of action any Court to which this Code
applies.
Apart from the doctrine of Sub-judice and Res judicata, Section 12
provides that the following rules of different Orders in the Code of Civil
Procedure bar a further suit in respect of the same cause of action.
The rules that bar a fresh suit in respect of the same cause of action are
as follows:
Order 2, Rule 2 - Omission to. sue in respect of a claim.
Order 9, Rule 2 - Decree against plaintiff by default bars a fresh. suit.
Order 22, Ruie 9 - Abatement of suit or its dismissal under Order 22
bars a fresh suit.
Order 23, Ruie 1 - Withdrawal of a suit or abandonment of part of claim
without leave of court bars a fresh suit.

Q. 9 Short note on Foreign Judgement.

Indian legal system is based on Common Law System. The Civil

Procedure code, 1908 (C.P.C) deals with the foreign court and foreign
Judgement.
Section 2(5) of the code defines a “foreign court” as a court situated
outside India and not established or continued by the authority of the
Central Government.
Section 2 (6) of the code defines “Foreign Judgement” as the
judgment of the foreign court. Section 13, 14 and 44 of the Code deals
with the foreign judgment or decrees.

Jurisdiction of Foreign Court

The following Circumstances would give jurisdiction to foreign
courts:
1. Where the person is a subject of the foreign court in which
the judgment has been obtained.
2. Where he was a resident in the foreign country when the
action was commenced and summon was served on him.
3. Where the person in the Character of plaintiff selects the
foreign court select the forum for taking action in which
forum he issued latter.

Binding Nature of the Foreign Court

Section 13 of the Code has provisions regarding the binding nature of
the foreign Judgement. It states that the Foreign Judgement shall be
shall be Conclusive as to any matter thereby directly adjudicated upon
between the same parties under whom they or any of them Claim
litigating the same.

Foreign Judgement When not Binding

Under section 13 of the Code, a foreign judgment is Conclusive and
operates as res Judicata between the parties thereto except in the cases
 a) when the foreign judgment is not by a competent Court;
b) Foreign Judgement not on merits:
c) Foreign Judgement against the international or Indian Law:
d) Foreign Judgement opposed to natural justice;
e) when the judgment is obtained by the fraud: and when the
Judgement is founded on the breach of Indian Law.

Q. 10 Suits of civil nature Or Essentials of civil Suits (Sec 9).

Sec. 9 C.P.C. reads The Courts shall have jurisdiction to try all suits of
a civil nature excepting suits of which their cognizance is either
expressly or impliedly barred.

A law which regulates the legal rights between one subject and another
subject is called CIVIL LAW. The civil law confers civil rights and
civil duties.

A civil right arises due to the rights over the subject matter. A civil suit
is a suit which enforces civil right or civil duty against the citizens or
against the State. It deals with the rights and duties of the private life of
a citizen.

The civil suit must involve the decision of caste questions or property
questions or questions regarding religious rights and ceremonies or the
jurisdiction of the Civil Court itself.

Conditions:
1). The suit must be of a civil nature.
For e.g.. a suit in which the right to property is contested is a suit of a
civil nature..
2. The Civil Courts have power only to decide the dispute of a civil
nature.
3. The cognizance of the civil court must not be expressly or
impliedly barred.
 The term 'expressly barred' means the power of the Court is
taken away by any enactment.
The term 'impliedly barred by necessary implication' means
that the Jurisdiction of a Civil Court can be curtailed only by a
specific statutory provision.

Case 1: L.I.C. Vs. India Automobiles, AIR 1991 SC 884: The

Supreme Court reiterated that the jurisdiction of a Civil Court must
not be curtailed without specific statutory provision.

Case 2: State of Kerala Vs. N. Ramaswami Iyer, AIR 1966 SC

1738: The Supreme Court held that where a tribunal is set up to
determine the rights or liabilities of parties, the jurisdiction of the
Civil Court is barred by implication.

Suits of civil nature:

In the following ten cases, the suits are of civil nature:

1. Regarding suits relating to properties, both movable and

immovable properties are included and the questions regarding
intangible properties include copy right, trade mark, right to vote,
etc.
2. Suits regarding temple and other religious properties come
under civil suits.
3. Suits for damages of civil wrongs (torts) are included under civil
suits. For e.g., a suit for damages against libel, slander, false
imprisonment, are all civil suits.
4. Suits regarding the right to specific relief like declaration,
injunction etc. are of civil nature only.
5. Suits regarding breach of contract are of civil nature only and so
liquidated compensation can be awarded.
6. The common law rights like the right to vote, the right to use a
public highway, right of entry in a temple and worship etc., are all
civil suits only and disputes can be filed in a Civil Court.
 7. Suits relating to right of worship, religious and other
processions are of civil nature only.
8. Suits relating to right of decent burial, dissolution of marriage
and restitution of conjugal rights are all of civil nature.
9. Suits relating to special contracts like partnership and sale of
goods are all civil suits.
10. Suits regarding the right of custom, expulsion from caste,
membership of a club and the validity of the Rules and Acts by the
Legislatures also come under civil suits.
11. Suits for right under a contract, suits for an account, etc.
12.Suit for cancellation of deed.

Q. 11 Short Notes on Foreign Judgments

Section 2(5) of the Code of Civil Procedure, 1908 defines
'Foreign Court", while Section 2(6) of the Code defines Foreign
Judgment.
According to Section 2(5), 'foreign court' means, "a court situated
outside India and not established or continued by the authority of the
Central Government."
According to Section 2(6) of the code, 'foreign judgment' means, "the
judgment of the foreign court."
Further Sections 13 and 14 of the Code lay down the provisions relating
to the foreign judgments.
The provisions under Section 13 and 14 are substantive in nature.
Section 13 says that when the foreign judgment shall not be conclusive,
where as Section 14 speaks about presumption as to foreign judgment.
Sections 13 and 14 read as follows:
When Foreign Judgment not conclusive (Section 13);
A foreign judgment shall be conclusive as to any matter thereby
directly adjudicated upon between the same parties or between parties
under whom they or any of them claim litigating under the same title
except
a) where it has not been pronounced by a court of competent
jurisdiction;
B) where it has not been given on the merits of the case;
c) where it appears on the face of the proceedings to be founded on an
incorrect view of international law or a refusal to recognise the law of
India in cases in which such law is applicable;
d) where the proceedings in which the judgment was obtained are
opposed to natural justice
e) where it has been obtained by fraud;
f) where it sustains a claim founded on a breach of any law in force in
India.
Presumption as to Foreign Judgment (Section 14) :- The Court shall
presume, upon the production of any document purporting to be a
certified copy of a foreign judgment, that such judgment was
pronounced by a court of competent jurisdiction, unless the contrary
appears on the record; but such presumption may be displaced by
proving want of jurisdiction.
Q.12 “Every Civil suit must be instituted before a Lowest Civil
court Competent to try that suit”. Discuss. OR
Q. Discuss the provisions pertaining to Place of suits under CPC

Introduction
When an action is to be instituted in the court of law, the suit has to be
filed in the appropriate court competent to try it. Otherwise, the court
will not entertain such suit. The jurisdiction of courts is restricted by
place, value of the subject matter, nature of the suit, persons etc. The
Code of Civil Procedure ,1908 prescribes certain rules relating to the
jurisdiction of Court and Place suing.
Rules relating to the place of institution of suits
The rules relating to the place of institution of suits are detailed below:
1. Courts in which suits to be instituted (Section 15).
2. Suits to be instituted, where subject matter situate (Section 16).
3. Suits for immovable property situate within jurisdiction different
courts (Section 17)..
4. Place of institution of suits, where local limits of jurisdiction of
courts are uncertain (Section 18).
5. Suits for compensation for wrongs to person or movables
(Section 19).
6. Other suits to be instituted, where the defendants reside or cause
of action arises (Section 20).
7. Objections to jurisdiction (Section 21) and
8. Bar on suit to set aside decree on objection as to place of suing
(Section 21.A).
1). Courts in which suits to be instituted (Section 15) :
Section 15 lays down that, every suit in the first instance, shall be
instituted/filed in the court of lowest grade (lowest court) competent to
try it. Section 15 is a rule of procedure and not of jurisdiction.
The main object of Section 15 is to minimise the workload of the courts
of higher grade and see that they are not overburdened with litigation.
Further, it aims to afford convenience to the parties and witnesses, who
may be examined in such suits.
Section 15 runs as follows -
Every suit shall be instituted in the Court of the lowest grade competent
to try it.
2. Suits to be instituted, where subject matter situates (Section 16):
According to Section "16, the suits must be instituted in the court within
the local limits of whose jurisdiction, the property is situated in India.
Subject to pecuniary or other limitations prescribed by any law, suits-
or in the Court within the local limits of whose jurisdiction the
defendant actually and voluntarily resides, or carries on business, or
personally works for gain.
Explanation: In this section 'property' means, "property situate in
India"
Section 16 deals with the place where a suit for immovable
property is to be filed.
Five types of suits with regard to immovable property are provided
from clauses (a) to (e) of Section 16. They are
• Suit for recovery of immovable property.
• Suit for partition of immovable property.
• Suit for foreclosure, sale or redemption of mortgage.
• Suit for the determination of any other right to or interest in
immovable property.
• Suit for compensation for wrong done to immovable property.
 3. Suit for immovable property situate within jurisdiction of
different courts (Section 17):
Section 17 says that:
where a suit is to obtain a relief respecting, or damage for torts to,
immovable property situate within the jurisdiction of different
courts, the suit can be filed in the court within the local limits of
whose jurisdiction any portion of the property is situate provided
that the suit is within the pecuniary jurisdiction of such court.
The object of the section is to avoid multiplicity of suits, but the
section is no bar to parties bringing successive suits where the
properties are situate in different jurisdictions.
4. Place of institution of suits, where local limits of jurisdiction of
courts are uncertain (Section 18):
Section 18 provides that where there is uncertainty regarding the local
limits of jurisdiction of which two or more courts any immovable
property is situate, any one of those Courts may, if satisfied that there
is ground for the alleged uncertainty, proceed to entertain and dispose
of any suit.
5.Suits for compensation for wrongs to person or movables
(Section 19):
Section 19 of the Code of Civil Procedure provides that where a suit
is for compensation for wrong done to the person or to movable
property,
if the wrong was done within the local limits of the jurisdiction of
one Court and the defendant resides, or carries on business, or
personally works for gain, within the local limits of the jurisdiction
of another Court, the suit may be instituted at the option of the
plaintiff in either of the said Courts.
Illustrations:
a) 'A' residing in Delhi, beats 'B' in Calcutta. 'B' may sue 'A' either in
Calcutta or in Delhi.
b) 'A' residing in Delhi, publishes in Calcutta statements defamatory of
'B', 'B' may sue 'A' either in Calcutta or in Delhi.
6. Other suits to be instituted, where the defendants reside or cause
of action arises (Section 20):
Section 20 deals with all kinds of personal suits.
Subject to the limitations aforesaid, every suit shall be instituted in a
Court within the local limits of whose jurisdiction-
• the defendant, or each of the defendants where there are more
than one, at the time of the commencement of the suit, actually
and voluntarily resides, or carries on business, or personally
works for gain; or
• The cause of action, wholly or in part, arises.
Explanation: A corporation shall be deemed lo carry on business at its
sole or principal office in India or, in respect of any cause of action
arising at any place where it has also a subordinate office, at such place.
Illustrations :
a) 'A' is a tradesman in Calcutta, 'B' carries on business in Delhi.
"B' by his agent in Calcutta, buys goods
"A and requests 'A' to deliver them to the East India Railway Company.
'A' delivers the goods accordingly in Calcutta. 'A' may sue 'B' for the
price of the goods either in calcutta, where the cause of action has arisen
or in Delhi, where 'B' carries business.
b) 'A' resides at Simla, 'B' at Calcutta and 'C' at Delhi. 'A', and 'C' being
together at Varanasi, 'B' and 'C' make a joint promissory note payable
on demand, and deliver it to 'A'.
'A' may sue 'B' and 'C' at Varanasi, where the cause of action arose.
He may also sue them at Calcutta, where 'B' resides, or at Delhi, where
'C' resides, but in each of these cases, if the non-resident defendant
objects, the suit cannot proceed without the leave of the Court.
7. Objections to jurisdiction (Section 21) :
Section 21 speaks about the objections to jurisdiction. Section 21
provides that the defendant can raise objections regarding the
jurisdiction of a Court in which a case is filed against him. If his
objections are genuine the Court in which the plaintiff files the case,
may return the plaint and direct the plaintiff to file the suit in
appropriate Court. The time during the filing and returning the case in
that Court is excluded from the computation of limitation.

The object of Section 21 is that the Courts work should not be frustrated
on account of negligence of the person who would have got the benefit
of an objection if made at appropriate stage.
The principle is based on rule of prudence.
8.Bar on suit to set aside decree on objection as to place of suing
(Section 21.A):
Section 21-A, as inserted by the Amendment Act of 1976, now
specifically provides that no substantive suit can be filed to set aside
a decree passed by a court on an objection as to the place of suing.
Q 13 What is Suit?, Explain Different Stages of suits. OR

Q. Briefly describe the various stages of suit.

Introduction.
The term suit is not defined under the in the C.P.C. but by various
decisions it can be said that “Suit ordinarily means a civil proceedings
instituted by presentation of a plaint. Civil suit is the institution of
litigation for enforcement of civil rights (or substantive rights, it may
be against state or individual).

Stages of the Civil Suit as per the Civil Procedure Code, 1908

In this article, we will discuss the stages of the civil suit under the civil
procedure code, 1908.
1) Presentation of the plaint Order 7 of CPC 1908:- Presentation
of the plaint in the court is the first step or starting point of all the
pleading in a case in India. The whole judicial system under the civil
law set in motion by the filling the plaint.

2) Service of summons on defendant (Order 5): The second

stage of the civil suit is the service of summons on the defendant.
Summons is an instrument used by the court to call the person whose
name is mentioned in the plaint as a defendant.

3) Appearance of parties (Order 9: When the summons duly

served to the defendant, the next stage of the civil suit commenced
which is the appearance of the parties before the court on the day fixed.
If the defendant does not appear on the day fixed in the summons the
court may proceed ex parte.

4) Ex-party Decree(Order 9): As mentioned above if the defendant,

on a fixed day in the summons does not appear the court may proceed
ex-parte. Where the plaintiff appears and the defendant does not appear
when a suit is called up for hearing and summons is duly served the
court may make an order that suits will be heard ex-parte under Order
9 of the CPC 1908.
5) Filing of written statement by the defendant (Order 8) : First of
all, we should know that what is written statement. Actually, it is a
pleading of the defendant in the answer to the plaint filed by the
plaintiff against him. It is a reply statement of the defendant in a suit
specifically denying the allegations made against him by the plaintiff
in his plaint. The provision regarding the written statement has
provided under Order 8 of the Code of Civil Procedure, 1908.

6) Production of documents by parties (plaintiff and defendant)

(Order 13): After filling the written statement by the defendant the
next stage of the suit is the production of documents by the parties. At
this stage, both parties have to file documents in court which are in their
possession or power.

7)Admission (Order 12):

8) Examination of parties (Order 10): After the filling of the

written statement, production of the documents and appearance of the
parties, the important stage commences that is Examination of the
parties. At the first hearing of the suit, the court ascertains from each
party or his pleader whether he admits or denies such allegations of fact
as made in the plaint and written statement. Such admissions and denies
shall be recorded.

9) Framing of issues by the Court (Order 14):-The next of the

civil suit is the framing of issues. It is the duty of the court to framing
issues. Order 14 of CPC provides the provision regarding the framing
issues.

10) Summoning and Attendance of Witnesses (Order 16):- After

the framing of issues parties shall present in the court a list of witnesses
whom they propose to call either to give evidence or to produce
documents. Such a list shall be present in the court on the day appointed
and not later than 15 days after the date on which issues are settled.

11) Adjournments (Order 17)

12) Hearing of suits and examination of witnesses (Order
18):- After the summoning of the witnesses, the next stage of the civil
suit is hearing of suits and examination of witnesses commence.

13) Affidavits (Order 19):

14) Argument:- As soon as the stage of the hearing of suits and

examination of witnesses is over then the suit is kept for the next stage
i.e. argument. Once the evidence has been submitted and cross-
examination is conducted by both parties, then both sides are allowed
to present a summary of the case and evidence to the judge in the final
session.

15) Judgment (Order 20 R/w Sec.33):- The next stage of the civil
suit is judgment, which means the statement given by the judge on the
ground of which a decree is passed.

16) Preparation of Decree, Costs. (Order 20A R/w Sec.35):- After

the delivery of the judgment, the next stage is the preparation of Decree,
and it is to be prepared by the concerned clerk.

17) Execution of Decree (Order 21, Sec. 36 to 48):- In this stage,

decree-holder compels the judgment-debtor to out the mandate of the
decree or decree or order as the case may be. It is the process by which
a decree-holder recovers the fruits of the judgment. The execution is
complete when judgment creditor or decree-holder gets money or other
thing awarded to him by judgment, decree or order.
Q. 14 State the rules regarding transfer of suits

Introduction:

Transfer of suits' means transferring the pending suit from one Court to
another by way of application to the Appellate Court or the High Court
by the defendant at the earliest possible opportunity.

As a general rule, a plaintiff as a right to choose his own forum where

a suit can be filed in more than one court, normally, this right of the
plaintiff cannot be curtailed, controlled or interfered with. But the said
right is controlled by the power vested in superior courts to transfer a
case pending in one inferior court to or to recall the case to itself for
hearing and disposal
Section 22 allows the defendant to make an application for transfer of
a suit,
whereas section 23 indicates the court to which such an application
can be made.
Section 24 embodies general power of transfer of any suit, appeal or
other proceedings at any stage either on an application of any party or
by a court of its own motion.
Section 25 speaks about the power of the Supreme Court to transfer the
suits.
Before transfer is ordered under section 22, two conditions must be
satisfied,
i) The application must be made at the earliest possible
opportunity and in all cases, where issues are settled, at or
before the settlement of issues,
ii) Notice must be given to the other side. The provision as to
notice is mandatory such notice may be given by the party
making an application or by the court.
Transfer application lies in following courts. (Sec.23)
1) Where several courts having jurisdiction are subordinate to
the same appellate court, an application for transfer can be
made to that appellate court,
2) Where such courts are subordinate to the same High court, an
application can be made to that High court, and
3) Where such courts are subordinate too different High courts,
an application can be made to the High court within the local
limits of whose jurisdiction, the court
in which the suit is instituted is situate,
4) The Supreme court may transfer any suit, appeal or other
proceeding from one High court to another High court, or
from one Civil court in the state to another Civil court in any
other State.

General Power of Transfer and withdrawal (Sec.24)

Notice: - when an application for transfer is made under section 22,
notice of such application must be given by the defendant to the
other side. The word “ after notice to the other parties” indicate that
notice must be given prior to making of application.
Suo Motu Transfer:- over and above an application by a party to
the suit, appeal or other proceeding, a High Court or a District Court
has power to transfer a suit, appeal or other proceeding even suo
motou.
Application for transfer after hearing: - It is no doubt, true that
an application for a transfer can be made “at any stage”. At the same
time, however, as the discretionary power of a suit, appeal or other
proceedings requires to be exercised in the interest of justice, the
court may refuse such prayer if it is made mala fide or with or with
a view to obviate an adverse decision after the hearing is over
 Case : Maneka Sanjay Gandhi v. Ram jethmalani:
It is submitted that the following observation of Krishna Iyer, J. in
the leading above case, “assurance of a fair trial is the first imperative
of the dispensation of justice and the criterion for the court to consider
when a motion for transfer is made is not the hypersensitivity or
relative convenience of a party or easy availability of legal service or
like mini-grievances. Something more substantial, more compelling,
more imperiling, from the point of view of public justice and its
attendant environment, is necessitous if the court is to exercise its
power of transfer. This is the cardinal principle although the
circumstances may be myriad and vary from case to case.

Power of Supreme Court to transfer suits, etc. (Section 25):

Section 25 speaks about the power of the Supreme Court to transfer the
suits before the passing of the C.P.C. Amendment Act 1976, this power
was vested with the State Government.
Section 25 reads as follows
1). On the application of a party, and after notice to the parties, and
after hearing such of them as desire to be heard, the Supreme Court
may, at any stage, if satisfied that an order under this section is
expedient for the ends of justice, direct that any suit, appeal or other
proceeding be transferred from a High Court or other Civil Court in one
State to a High Court or other Civil Court in any other State.

2. Every application under this section shall be made by a motion,

which shall be supported by an affidavit.

3. In dismissing any application under this section, the Supreme Court,

may, if it is of opinion that the application was frivolous or vexatious,
order the applicant to pay by way of compensation to any person who
has opposed the application such sum, not exceeding two thousand
rupees, as it considers appropriate in the circumstances of the case.
4. The law applicable to any suit, appeal or other proceeding transferred
under this section shall be the law which the Court in which the suit,
appeal or other proceeding was originally instituted ought to have
applied to such suit, appeal or proceeding.
 UNIT -2

Q. 1 What are the rules regarding institution of Suits? Explain .

Introduction
Section 26 and Order IV provide for institution of suits. Orde I deals
with parties to a suit and it also makes provision for deletion and
substitution of parties viz. joinder, non-joinder and mis-joinder etc. of
the parties to a suit. Section 26 says that, every suit shall s instituted
by presentation of a plaint or any other manner as may prescribed
therefor.
Meaning and Definition:
The term 'suit' has not been defined anywhere in the Code of Civil
Procedure. According to Chamber's 20th Century Dictionary, the word
'Suit is a generic term, which means, "any proceeding by one person or
persons against another or others in a court of law, wherein the plaintiff
pursues the remedy, which the law affords him for the redress of any
injury or the enforcement of a right, whether at law or in equity”.

Law suit means 'case in a law-court' and prosecution of a claim or right

in a court of justice. Suit is an action of any kind whether at law or
equity.
Essentials of Suit: To constitute suit, the following essential elements
are to be satisfied.
i). Two parties or the two opposing parties.
ii) The subject matter in dispute.
iii) The cause of action and
iv) The relief claimed.
i). Two parties or the two opposing parties : in every suit, there must
be two opposing parties namely, the Plaintiff and the Defendant.
ii). The subject matter in dispute: The subject matter of a suit is the
right or property claimed by the plaintiff in the suit.
iii). The cause of action : Every suit must have the cause of action.
The cause of action means every fact, which traversed it, would be
necessary for the plaintiff to prove in order to support his right to the
judgment of the Court.
It consists of essential facts, which have to be proved by the plaintiff to
entitle him to a decree of the Court, Thus the cause of action refers to
the cause or the set of circumstances, which leads upto a suit.
iv). The relief claimed: Every suit must contain the relief claimed by
the plaintiff. The relief claimed should be stated specifically in the
plaint. It may be stated in the alternative also. The relief claimed b the
plaintiff must be one, which the court can grant.
Stages of a Suit: There are different stages in a lawsuit as stated below:
• Institution of suit.
• Service of summons.
• Written statement.
• Framing of issues.
• Production of evidence.
• Arguments.
• Judgment.
• Decree.
• Execution.
Institution of Suit (Section 26 and Order IV)
According to Section 26 which runs as follows -
(1) Every suit shall be instituted by the presentation of a plaint or in
such other manner as may be prescribed.
(2) In every plaint, facts shall be proved by affidavit.
(1). Presentation of Plaint: According to Section 26, 2(16), Order 4,
Rule 1, every suit must be instituted by the presentation of a plaint in
duplicate or in such other manner as may be prescribed by the Code by
the plaintiff himself or by his advocate or by his recognised agent or by
any person duly authorised by him.
Therefore, generally, a proceeding, which does not commence with a
plaint, is not a suit.
Plaint is the pleading of the plaintiff. It means, "an accusation or
charge". It is a document, by the presentation of which a suit is
instituted in the Civil Court.
Contents or Particulars of Plaint: Plaint contains the following
particulars.
1. The name of the court in which the suit is brought.
2. The name, description and place of residence of the plaintiff.
3. The name, description and place of residence of the defendant, so
far as they can be ascertained.
4. Where the plaintiff or the defendant is a minor or a person of
unsound mind, a statement to that effect.
5. The fact constituting the cause of action and when it arose.
6. The facts showing that the court has jurisdiction.
7. The relief which the plaintiff claims.
8. Where the plaintiff has allowed a set-off or relinquished as
portion of his claim, the amount so allowed or relinquished and
9. A statement of the value of the subject matter of the suit for the
purposes of jurisdiction and of court fees, so far as the case admits
(Order 7, Rule 1).
Time and Place of presentation of plaint: A plaint must be presented
to the court or such officer as it appoints in that behalf [Order VII, Rule
1(1).]. Generally, the presentation of a plaint must be on a working day
and during the office hours.
Thereafter, the particulars of a suit will be entered by the court in a
book kept for the said purpose, called the register of civil suits (Rule
2).
After the presentation, the plaint will be scrutinized by the Stamp
Reporter. If there are defects, the plaintiff or his advocate will remove
them.
Thereafter the suit will be numbered
Representative Suit (Order 1, Rule 8): According to Order 1 , Rule
8 of CPC ,
1). Where there are numerous persons having the same interest in one
suit,
a) One or more of such persons may, with the permission of the court ,
sue or be sued or may defend such suit on behalf of, or for the benefit
of all persons so interested.
2). The court shall, in every case where a permission or direction is
given under Sub rule(1), at the Plaintiff’s expense, give notice of the
institution of suit to all persons so interested.
3). No part of the claim in any such suit shall be abandoned under Sub-
rule1 and no such suit shall be withdrawn under Rule 1 of Order 23 and
no agreement , compromise or satisfaction shall be recorded in any such
suit under Rule 3 ,Order 23.
Conditions: The following conditions are to be satisfied for filling a
Representative Suit;
i) The parties must be numerous
ii) They must have the same interest in the suit
iii) The permission must have been granted or
direction must have been given by the court.
Q. 2 State the provisions of CPC relating to Joinder of Parties.
What is the effect of Non-Joinder of necessary parties?
One of the most essentials of a suit is, there must be atleast two
opposing parties namely the plaintiff and the defendant.
Plaintiff is one, who institutes an action/suit against another/others
claiming some relief. Whereas the defendant is one, against whom, the
suit is filed/instituted.
Order I of the Code of Civil Procedure, 1908 contains the provisions
relating to 'parties to suit'. It also makes provision for deletion and
substitution namely -
(i) Joinder of Parties – Order 1, Rule - 1
a) Joinder of Plaintiffs – Order 1, Rule – 1, and
b) Joinder of Defendants. – Order 1, Rule - 3
ii) Necessary and Proper parties.
iii) Non-joinder and Mis-joinder of parties. – Order 1, Rule - 9
i) Joinder of parties: When two or more persons jointly file a suit, they
are called joinder of parties. When an act is done by two or more
persons or it affects two or more persons, joinder of parties takes place.
E.g: 'A' promised to 'B', 'C' and 'D' to perform some work and failed to
perform the same. Here, the liability of 'A', is joint and several, 'B', 'C'
and D' can sue 'A' individually or jointly. If' B', 'C' and 'D' sue 'A'
jointly, they are called 'joinder of parties'.
The question of joinder of parties may arise with regard to
(i) . Joinder of parties and ii) Joinder of defendants.
In case of the former, two or more jointly sue,
while in the latter, two or more are sued jointly.
a) Joinder of Plaintiffs (Order1, Rule 1): Order 1, Rule 1 of the Code,
provides for joinder of plaintiffs. "All persons may be joined in one suit
as plaintiffs, where -
1. any right to relief of, or arising out of, the same act or transaction
or series of acts or transactions is alleged to exist in such persons.
whether jointly, severally or in the alternative; and
2. if such persons brought separate suits, any common question of
law or fact would arise.
All persons having a common cause of action are entitled to join as
plaintiffs. But separate cause of action in respect of several plaintiffs
could not be joined.
Order 1, Rule 2 says that if the court feels that the joinder of plaintiffs
may embarrass or delay the trial, it may order separate trials.
b) Joinder of Defendants (Order1, Rule 3) : Defendant is a person
against whom, the suit is filed/instituted by the plaintiff. In other words
he is a person, who is being accused or alleged in a civil action or who
is prosecuted in criminal action. According to Order 1, Rules 3 of the
CPC, two or more persons or all persons may be joined in one suit as
defendants,
The following two conditions are to be satisfied for joining several
defendants in a single suit..
1. any right to relief in respect of, or arising out of, the same act o
transaction or series of acts or transactions is alleged to exist
against such persons, whether jointly, severally or in the
alternative; and
2. if separate suits were brought against such persons, any common
question of law or fact would arise.
The general principal regarding the joinder of defendants would seem
to be that there must be a cause of action in which all the defendants
are more or less interested, although the relief asked against them may
vary; and separate causes of action against separate defendants cannot
be joined in an action.
For application of the rule of joinder of defendants, it is necessary that
the right to relief should arise out of the same act or transaction or
series of acts or transactions, and this implies that the acts or
transactions,
where they are different should be so connected as to Constitute a single
series which could be fairly described as one entity or fact which would
constitute a cause of action be against all the defendants jointly.
ii) Necessary and proper parties : In a suit, there must be two opposite
parties. In other words, atleast two parties are necessary for filing a suit.
Such parties are called 'necessary parties'.
In other words, a necessary party is one, in whose absence no order can
be made effectively. There may be some other persons actually
interested in the suit, in whose presence, the court can effectively
decide the matter. Such parties are called 'proper parties.
Necessary parties are all persons, who have interest in the subject
matter of the suit.
iii) Non-joinder and Mis-joinder of parties (Rule 9): Where a person,
who is a necessary or proper party to a suit has not been joined as a
party to the suit, it is a case of non-joinder. Conversely, if two or more
persons are joined as plaintiffs or defendants in one suit in
contravention of Order 1, Rules 1 and 3 respectively and they are
neither necessary nor proper parties, it is a case of misjoinder of parties.
The objections to misjoinder of parties must be taken at the earliest
opportunity. If not, it will be deemed to have been waived by the
defendant (Order 1, Rule 13).
The general rule is that a suit cannot be dismissed only on the ground
of non-joinder or mis-joinder of parties. Nor a decree passed by a
competent court on merits will be set aside on the ground of
misdescription of the defendant. However, this rule does not apply in
case of non-joinder of a necessary party.

Q.3 Explain the different parts of Plaint and Essentials of a Plaint.

OR
Q. Briefly explain the different part of a plaint. OR
Q. Briefly describe the content of plaint. (order7, rule 1 to 8)

Introduction
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. It is a pleading of the plaintiff
Order VIl of the Code of Civil Procedure deals with plaint. Order VII
contains 18 Rules. Rule 1 contains the particulars to be furnished in the
plaint.
Meaning: Plaint is the statement of claim in writing and filed by the
plaintiff in which he sets out his cause of action with all necessary
particulars
It is a document, by the presentation of which, a Suit is instituted in the
Civil Court. The term 'plaint is not defined in the Code of Civil
Procedure, 1908.
Plaint is the pleading of the plaintiff. It means "an accusation or
charge".
Plaint opens with the name of the Court, where the case/suit is filed.
Object: The main object of plaint is to state the grounds upon which
the assistance of the Court is sought by the plaintiff.
Contents of Plaint (Order 7, Rule 1 to 8):
Rule 1, Order 7 of the Code of Civil Procedure, 1908 contains the
particulars of the plaint as stated below:
• The name of the Court in which the suit is brought.
• The name, description and place of residence of the plaintiff.
• The name, description and place of residence of the defendant, so
far as they can be ascertained.
• Where the plaintiff or the defendant is a minor or a person of
unsound mind, a statement to that effect.
• The facts constituting the cause of action and when it arose. A
bundle of facts, which gives the plaintiff right to relief against the
defendant”.
• The facts showing that the Court has jurisdiction.
• The relief which the plaintiff’s claims.
• Where the plaintiff has allowed a set-off or relinquished a portion
of his claim, the amounts so allowed or relinquished and
• A statement of the value of the subject matter of the suit for the
purposes of jurisdiction and of court-fees, so far as the case
admits
• Where the plaintiff files a suit in a representative capacity, the
facts showing that the plaintiff has an actual existing interest in
the subject-matter and that he has taken steps that may be
necessary to enable him to file such suit,
• Where the suit is for recovery of money, the precise amount
claimed,
• Where the subject-matter of the suit is immovable property a
description of the property sufficient to identify it, e.g.
boundaries, survey numbers, etc.,
• The interest and liability of the defendant in the subject-matter of
the suit,
 • Where the suit is time-barred, the ground upon which the
expression from the law of limitation is claimed.

Essential parts of Plaint : The Code of Civil Procedure does not divide
a plaint in to any strict parts as such.
However, Bullen and Leake and Mogha have divided a plaint in to
Three parts:
1). The Heading and Title, (2) Body of the Plaint, and (3) Relief
Claimed. To these may be added (4) Signature and Verification.
Therefore, a plaint may be divided in to Four parts, namely -
• Part I : The Heading and Title.
• Part II : The Body of the Plaint.
a) Formal Portion and
b) Substantial Portion
• Part III : The Relief Claimed and
• Part IV : Signature and Verification.
Part I: Heading and Title:
Heading of the plaint means the court in which the suit is instituted.
Therefore, the name of the court has to come on the top of the plaint. If
a court has various jurisdiction the specific jurisdiction in which the
suit is being instituted should be give below the name of the court.
Part-ll : The Body of the Plaint :
The second part of the plaint is called 'Body of the plaint.
It contains the statement of the claim of the plaintiff.
It is drawn in the form of a narrative in the third person and it is divided
in to paragraph.
It consists of two portions-the
(A). The Formal portion and
(B) the Substantial portion.
A) Formal Portion:
i) A statement as to when the cause of action arose.
ii) Facts showing that the Court has jurisdiction.
iii) The value of the subject matter of the suit for the purpose of
jurisdiction and the court-fees.
iv) When any party is a minor or a person of unsound mind, a statement
to that effect.
v) When the plaintiff sues in a representative character, a statement to
that effect,.
vi) When the suit is instituted after the period of limitation, a statement
showing the ground on which exemption from the law of limitation is
claimed.
i) Date of cause of action : The date of the cause of action is very
material and should be correctly given. It is, however, not always easy
to determine the exact date of the cause of action.
For example, the cause of action in a suit for damages for a breach of
contract consists of the following:
• The Contract.
• Its breach.
• Resulting damages.
ii) Statement of Facts pertaining to jurisdiction: Rule 1(f) of Order
VIl enjoys that the plaint must contain the facts showing that the court
has jurisdiction.
The body of the plaint must contain the facts, which go to show that the
cause of action did arise in terms of these sections of the Code. The
facts must reveal that the Court has jurisdiction pecuniary, territorial
and over the subject matter'.
iii) Statement as to valuation of suit: Rule 1 (i) of Order VII requires
that the plaint must contain a statement of the value of the subject
matter of the suit for the purpose of jurisdiction and of court fees.
The other requirements, which now follow are to be fulfilled only
where they are necessary in the circumstances of the case.
iv) Statement as to minority or insanity of a party: According to
Order VII, Rule 1(d) where the plaintiff or the defendant is a minor or
a person of unsound mind, the plaint should contain a statement to that
effect. It has been suggested that such a statement should be made in
the body of the plaint.
v) Statement as to plaintiff's representative character: Rule 4 of
Order VII directs that where the plaintiff sues in representative
character the plaint must show not only that he has an actual existing
interest in the subject matter but he has taken the steps (if any)
necessary to enable him to institute a suit concerning it.
The plaintiff from stating the same in the body of the plaint itself.The
converse is not true.
The Allahabad High Court in case of M.Ullah vs. Jwala Prasad (AIR
1974 All 413) is good illustration on the point. In that case the plaintiff
described himself as the Karta of a joint Hindu family in the cause title
of the plaint But in the body of the plaint he nowhere mentioned the
fact of there being a joint family and of his being the Karta of that
family.
It was held that the suit could not be regarded as having been filed in
that capacity. It was also pointed out that for determination of the
representative character of the suit no reliance could be placed on the
cause title of the plaint which could not be regarded as a part of the
plaint in so far as it is not covered by the verification appended at the
foot of the plaint.
Preferably description of the representative character should be made
in the opening paragraph of the plaint.
vi) Statement as to grounds of exemption from Limitation Law
Rule 6 of Order VII enacts that if a suit is instituted after the expiry of
the period of limitation the body of the plaint must show the ground
upon which exemption from the law of limitation is claimed in case this
is not done the plaint may be rejected. However, the court can permit
the plaintiff to claim exemption from the law of limitation on any
ground not set out in the plaint, if such new ground is not inconsistent
with the one, set out in the plaint.
The entire body of the plaint is drawn up in the form of narrative in the
third person.
The purpose of the substantial portion of the body, of the plaint is to
acquaint the court and the defendant with the plaintiff's case.
The object of the formal portion of the body of a plaint is
a) to determine whether the courts has jurisdiction to try and determine
the suit,
b) whether requisite court fee has been paid,
c) whether the plaintiff or defendant is minor,
d) whether the suit is a representative one, and
e) whether the plaintiffs claim is covered within any of the exception
to the law of limitation.
B) Substantial Portion :
The other portion, excluding the one described above, may be called
the substantial proportion of the plaint.
The substantial portion of the plaint contains statements of facts
constituting the cause of action, with such particulars as are necessary.
It is described to start the plaint with certain introductory statements,
called 'matters of inducement.
Contents of Substantial Portion
Therefore, the substantial portion of the plaint consists of the following:
i). Matters of Inducement
ii) Facts constituting cause of action (Order VII, Rule 1(d) :
iii) Facts showing defendant's interest and liability (Order VI Rule 5):
i) Matters of Inducement: The body of the plaint is often commenced
with certain introductory statements 'stating' who the parties, are, what
business they carry on how they are related or connected, and other
surrounding circumstances leading up to the dispute
ii) Facts constituting cause of action (Order VII, Rule 1(d) :
Where the matters of inducement are not called for the plaint must be
started with the statement of facts, which constitute the cause of action.
For if a plaint does not disclose any cause of action it is liable to be
rejected. Cause of action is a bundle of material facts alleged by the
plaintiff to make out his right to sue and claim relief against the
defendant.
iii) Facts showing defendant's interest and liability (Order VI Rule
5):
Order VIl, Rule 5 of the Code directs that the must show that the
defendant is or claims to be interested in the subject matter, and that he
is liable to be called upon to answer the plaintiff's demand.
Part III: The Relief Claimed:
In a civil suit, different kinds of relief can be claimed. The plaintiff
might claim one or more of such reliefs. but whatever relief he claims,
he must state them in the plaint specifically. Under Order 2, Rule 2 of
the C.P.C. a plaintiff who can claim more than one relief on the same
cause of action, must claim all. Otherwise, he shall not be entitled to
bring a new suit for the omitted relief.
Part IV: Signature and Verification:
Every plaint shall be signed by the plaintiff and his pleader (if any). But
where a plaintiff is, by reason of absence or for any other good cause,
unable to sign the plaint it may be signed by any person duly authorised
by him to sign the same or to sue on his behalf. Where a plaintiff is
illiterate and cannot make signature, he may put his thumb mark on the
plaintiff.
Every plaint shall be verified at the foot by the plaint of by one of the
plaintiffs pleading or by some other person proved to the satisfaction
of the court to be acquainted with the facts of the case.
After the plaint is prepared, every plaint or suit shall be accompanied
with the following forms and documents:
1. List of documents when not in possession attached with the plaint.
2. List of reliance not in possession.
3. Form of address.
4. Process fee from.
5. Power of Attorney if the plaint is filed through Counsel.
Where the Plaintiff has not attached the list of reliance but the same
documents has been pleaded in the plaint,
Q. 4 What is Plaint? State circumstances where plaint can be
rejected?
Introduction
Order VIl of the Code of Civil Procedure deals with plaint. Order VII
contains 18 Rules. Rule 1 contains the particulars to be furnished in the
plaint.
Plaint is the pleading of the plaintiff. It means "an accusation or
charge".
Meaning: Plaint is the statement of claim in writing and filed by the
plaintiff in which he sets out his cause of action with all necessary
particulars
It is a document, by the presentation of which, a Suit is instituted in the
Civil Court. The term 'plaint is not defined in the Code of Civil
Procedure, 1908.
Plaint opens with the name of the Court, where the case/suit is filed.
Object: The main object of plaint is to state the grounds upon which
the assistance of the Court is sought by the plaintiff.
Contents of Plaint:
Rule 1, Order 7 of the Code of Civil Procedure, 1908 contains the
particulars of the plaint as stated below:
• The name of the Court in which the suit is brought.
• The name, description and place of residence of the plaintiff.
• The name, description and place of residence of the defendant, so
far as they can be ascertained.
• Where the plaintiff or the defendant is a minor or a person of
unsound mind, a statement to that effect.
• The facts constituting the cause of action and when it arose.
• The facts showing that the Court has jurisdiction.
 • The relief which the plaintiff’s claims.
• Where the plaintiff has allowed a set-off or relinquished a portion
of his claim, the amounts so allowed or relinquished and
• A statement of the value of the subject matter of the suit for the
purposes of jurisdiction and of court-fees, so far as the case
admits
Essential parts of Plaint : The Code of Civil Procedure does not divide
a plaint in to any strict parts as such.
However, Bullen and Leake and Mogha have divided a plaint mainly
in to Three parts:
1). The Heading and Title, (2) Body of the Plaint, and (3) Relief
Claimed. To these may be added (4) Signature and Verification.
Therefore, a plaint may be divided in to Four parts, namely -
• Part I : The Heading and Title.
• Part II : The Body of the Plaint.
a) Formal Portion and
b) Substantial Portion
• Part III : The Relief Claimed and
• Part IV : Signature and Verification.
Presentation and Rejection of Plaint: The plaint should be presented
by the party in person, or by a recognized agent or pleader of a party to
the court or such officer as it appoints in this behalf.
As regard rejection of a plaint Rule 11 of Order VII of the Code of Civil
Procedure provisions four grounds on which the court is bound to reject
the same.
Rejection of Plaint ( Order 7, Rule 11) :
The plaint can be rejected under Order 7. Rule 11, C.P.C. at any stage
of the proceedings.
An order rejecting a plaint is a decree within the meaning of Section
2(2) of C.P.C. and it is appealable.
A plaint can be rejected when -
i) It does not disclose a Cause of Action..
ii) The claim is undervalued and the plaintiff does not correct the
valuation within the time fixed by the Court.
iii)The relief claimed is properly valued but it is written upon
insufficient stamp paper and the plaintiff does not supply the requisite
paper within the time fixed by the Court
iv) The suit is barred by any law, when it appears from the
statement in the plaint.
In P.Anwaru Hasan vs. Raghbir Singh, AIR 1971 Raj. 234).
The court held that, A suit cannot be dismissed under this rule but it
has to be rejected The reason seems to be that when the plaint is
rejected, the plaintiff can file a fresh plaint in respect of the same cause
under Order 7, Rule 13 of CPC.
In Bharat Singh vs. Satnam Transport Co. (AIR 1958 Ker. 88).
If there is no statement in a plaint from which it could appear that the
suit is barred by any law, the plaint cannot be rejected under Rule 11 of
Order 7 of the C.P.C.
In Shreedam vs. Tenkori, (AIR 1953 Cal. 222).
The apex court held that, Order of rejection of plaint in limine for non-
compliance of notice under Section 80 of the C.P.C. is bad
In Sawakat Ali vs. Supdt.of Police, Sibasagar, (AIR 1972 Assam,
29).
The supreme court held that, Where a plea of waiver of notice has been
set up in the plaint, the Court cannot reject the plaint.
In P.B.Shah & Co. vs. Chief Executive Officer, (AIR 1962 Cal. 283
The court held that, The plaint can be rejected in part, but it cannot be
rejected as a whole;
Procedure on Rejection ( Rule -12 &13) : Rule 12, provides the
procedure on rejecting plaint. Where a plaint is rejected, the judge shall
record an order to that effect with the reasons for such order.
Rule 13 provides that after the rejection of the plaint on any of the
grounds mentioned in it,
The plaintiff is not precluded from bringing a fresh suit on the same
cause of action. The plaintiff is entitled to bring a fresh suit, after
correction of the grounds on which it is rejected.
Return of Plaint (Order 7, Rule-10) : The provision for the return of
the plaint is a mandatory provision. The plaint can be returned at any
stage of the proceeding under Order 7, Rule 10, of C.P.C.
Where the Court finds that the Court has no jurisdiction to entertain a
suit it is to be tried by some other Court, the Court shall return the plaint
for presentation to the proper Court
In Ramdhri Lal. V/s. Uday Narain, (AIR 1957 Pat. 3241).
The court held that The Jurisdiction may be either with regard to the
Nature of the suit or Pecuniary Jurisdiction or Territorial Jurisdiction.
.While returning the plaint, the judge shall make endorsement on the
plaint in respect of the following matters:
➢ Date of presentation.
➢ Date of return.
➢ Name of the party who presented it, and
➢ Brief statement of reason for return of the plaint.
When a plaint is returned to the plaintiff for presentation to the proper
Court and is filed in the new Court, it is a new suit for all intents and
purposes and not in the continuation of old one.
Q. 5 Explain the different modes of service of summons.
Or
Q. State modes of Service of Summons. ( Order 5, Rules 9-30)
(sec27-29).

Introduction

When the plaintiff files a suit, the defendant has to be informed that
the suit has been filed against him, and that he is required to appear in
the court to defend it. The intimation which is sent to the defendant by
the court is technically known as “summons”.
Therefore, summons is a process by which the Court calls for the
appearance of the defendant or witness

Meaning: “A summons is a document issued from the office of a court

of justice, calling upon the person to whom it is directed to attend
before a judge or officer of the court for a certain purpose”
The plaint contains the name and address of the defendant.
The word 'Summons' has not been defined in the Code of Civil
Procedure.
It means, "an urgent or authoritative call by the Court directing/asking
the defendant or witness before the Court on a particular date and time".
Order V of the Code containing 30 Rules provides for the procedure to
summon the defendant, while Order XVI of the Code containing 21
Rules provides for the procedure to summon the witnesses.
The Court while issuing the summons must state that whether the
summons is issued for settling the issues or for final disposal of the suit
(Order V, Rule 5).
Mode of Service of Summons. Rules 9-30
The service of summons is of primary importance as it is a
fundamental rule of the law of procedure that a party must have a fair
and reasonable notice of the legal proceedings initiated against him so
that he can defend himself.
Summons may be served under the following ways:
i). Personal or direct service (Rules 10-16 & 18).
ii). Service by Court (Rule 9).
iii). Service by Plaintiff (Rule 9.A)
iv). Substituted Service (Rules 17, 19 & 20) and
v). Service by post.( an addition to Order 5 Rule 9(4) ).

i). Personal or direct service (Rules 10-16 & 18): As far as possible,
the summons should be served on the defendant in person, if it is not
possible it may be served upon his duly authorised agents against
(Order 5, Rule 12).
Where there are more defendants than one, service shall be made on
each defendant (Rule 11).
If the defendant cannot be found and he had no duly authorised agent,
the summons can be served on any adult member of his family who is
residing with him (Rule 5),
If the suit is with regard to any immovable property, service can be
made on any agent of the defendant in charge of the property, provided
the defendant cannot be found out (Rule 14).
Rule 10 to 16 and 18 deal with personal or direct service of summons
upon the defendant. This is an ordinary mode of service of summons.
Principles of Mode of Service of Summons:
The code prescribes 5 principle mode of serving a summons to a
defendant.

1. Wherever it is practicable, the summons must be served to the

defendant in person or to his authorised agent (Rule 12).
 2. A servant, however, cannot be said to be a family member
(Explanation to Rule 15).
3. In a suit relating to any business or work against a person, not
residing within the territorial jurisdiction of the court issuing the
summons, it may be served to the manager or agent carrying on
such business or work (Rule 13).
4. In a suit for immovable property, if the service of summons
cannot be made on the defendant personally, and the defendant
has no authorised agent, the service may be made on any agent of
the defendant in charge of the property (Rule 14).
5. Where there are two or more defendants, service of summons
should be made on each defendant (Rule 11).
ii) Service by Court (Rule 9) : According to Order V, Rule 9(1) of the
Code of Civil Procedure, summons may be served on the defendant by
the Court of competent jurisdiction through the officer of the Court or
through the approved courier service or registered post or speed post,
fax, e-mail or any other mode of service.
iii) Service by plaintiff (Rule 9.A) : The Court may also permit service
of summons by the plaintiff in addition to service of summons by the
court.
iv) Substituted Service (Rules 17, 19 & 20) : The personal or direct
service is the normal mode of service of summons. The ordinary
method of service may be substituted by some other method.
There are two types of substituted service.
1.The first method is that if:
a) the defendant or his agent refuses to sign the acknowledgement
b) where the serving officer cannot find the defendant and there is no
agent - the serving officer shall fix a copy of the summons on the outer
door or any conspicuous part of the defendant's house or place of work
or business After that he shall return the original to the Court with a
report of the mode of the service (Order 5, Rule 17)
If the Court is satisfied either on the affidavit of the serving officer or
on his examination on oath the Court may declare that the summons
has been duly served (Order 5, Rule 9).
If the Court is not satisfied, it shall order service of new summons.
2.The other method (Second) is,
Order 5, Rule 20 provides another method of service. Under that the
summons can be served on after getting an order from the Court.
1. If the Court is satisfied that the defendant is avoiding the service
of summons, or
2. The summons cannot be served because of some other reasons.
The Court shall order the summons to be fixed in any conspicuous part
of the Court house or the house of the defendant (Order 5, Rule 20)
v). Service by Post:- The High court of concerning territory shall
make rules for such services. The service of summons can be made
through Register Postal acknowledgement due or Speed post or
courier services. It is addition to the direct service of summons (Order
5 Rule 9(4) Of CPC).
Q. 6 What is Written Statement? Explain the Defences available
to the Defendant.
OR
Q. Elucidate the essential contents of Written statement.
(Order VIII)

Introduction
A statement of defence called Written statement, in which the
defendant deals with every material fact alleged by the plaintiff in the
plaint, states any new facts which are in his favour, and adds such legal
objections as he deems fit against the claim .
Order 8 of CPC lays down the provisions related to Written statement.
Meaning: The defendant's written defence statement or_pleading is
called the "Written Statement"
Written statement is the pleading of the defendant. It is prepared in a
concise form to contradict the allegations made against him in the
plaint. It can be filed at any time before the first hearing or within such
time as the Court may permit.
Definition: The Written Statement has not been defined in the Code.
According to the Supreme Court's opinion "the written statement is a
term of specific connotation ordinarily signifying a reply to the plaintiff
filed by the plaintiff".
In Rachappa vs. Gurusidappa (AIR 1989 SC 6351, the Supreme
Court has categorically stated that the term 'written statement is a term
of specific connection signifying a reply to the plaint filed by the
defendant.
That means, it is a document in which the defendant deals with every
material facts alleged by the plaintiff in the plaint and also states any
new facts which tell in his favour, adding such legal objections as he
wishes take to the claim.
Order VIll of the Code of Civil Procedure provides for the filing of a
written statement. Filing of the written statement by the defendant has
been made obligatory since the amendment of the Code in 1976.
In Mathew vs N.R.C.D. Corporation, AIR 1978 MP 39 (41).
According to Sub Rule 1 of Order VIII, Rule 1, the defendant must file
his written statement at or before the first hearing or within the time
allowed by the Court.
It should be noted that the C.P.C. does not allow any pleading
subsequent to the written statement of the defendant (other than by way
defence to a Set-off or Counter claim) to be presented;
Any subsequent pleading, therefore, can be presented only with the
leave of the Court. Such subsequent pleading of the plaintiff is known
as a written statement (replication)
Essentials of Written Statement :
A written statement may be divided in to Three parts, viz.
Part I: The Heading and Title.
Part I : The body of the written statement.
Part III : Signature and verification.
Part-l - Heading and Title: A written statement carries the same
heading and title as the plaint.
However, if the plaintiffs and defendants are more than one, the name
of one alone may be given by adding the words 'and another' or 'and
others'.
Part-ll: Body of the written statement: The body of the written
statement may be commenced with the words the defendant states as
follows' - The body is divided in to numbered paragraphs in which the
defendant puts forward his defence or defences in reply to the plaintiff.
Part-lIl : Signature and Verification: Written statement is signed and
verified in the same manner as the plaint.
In Vinayak vs. Shantabai, (AIR 1983 Bom. 172).
The court stated that, Unless a document purported to be a written
statement is signed by all the defendants and verified at least by one of
them or by some one, who can claim knowledge about the facts of the
case personally it would not partake the character of a written statement
of the defendants at all
Defences, which a defendant can take:
A written statement Contains the following pleas, which the defendant
can take as a defence.
i) Admissions and Denials.
ii) Dilatory Pleas or Pleas.
iii) Objection in Point of Law.
iv) Special Defence.
v)Set-off and Counter Claim.
i) Admissions and Denials ; The defendant should admit or deny all
the material facts given in the plaint.
He should not merely say “not known” or “the defendant has no
knowledge of the facts alleged in para... of the plaint”, because such
assertions do not amount to denial of non-admission as a party might
admit even a fact of which he has no knowledge. Every fact should be
replied in the same serial order in which it has been alleged in the plaint.
Where a certain fact alleged in the plaint is within the defendant's
knowledge, the defendant should say “admitted” or “denied” and not
“not admitted”.
But where the fact is not within the knowledge of the defendant, he
should say “not admitted” and not “that the fact is denied” by the
defendant.
ii) Dilatory pleas : Pleas which merely delay the trial of a suit on
merits have been characterised as 'dilatory pleas'. They simply raise
formal objections to the proceedings and do not give any substantial
reply to the merits of the case,
e.g.: The plea that the court fee paid by the plaintiff is not sufficient.
Such pleas should be raised at the earliest opportunity.
iii) Objections to point of law : By such an objection the defendant
means to say that even if the allegations of fact (made in the plaint) be
supposed to be correct, still the legal inference which the plaintiff
claims to draw in his favour from those facts “is not permissible”.
It is significant to note that an objection on point of law “should raise a
point of substance and not merely technical objection to some defect of
form.”
iv). Special defence (confession and avoidance) (order 8, Rule 3) :
Special defence is more appropriately called the plea of confession and
avoidance.
It is a plea whereby the defendant admits the allegations made in the
plaint , but seeks to destroy their effect by alleging affirmatively certain
facts of his own, showing some justification or excuse of the matter
charged against him or some discharge or release from it.
Rule 3 of Order VIII enumerates certain instance of special defences
but the list is not exhaustive.
Some of the special defences, which are commonly raised, have been
enumerated by Mogha are as under:
i ) Limitation
ii) Jurisdiction
iii) Accord and Satisfaction
iv) Payment
V) Estoppel
vi) Res judicata
vii) Acquiescence
viii) Illegality
Ix) Justification and
x) Laches.
To this list may be added
(xi) Adverse possession
(xi) Act of God and
(xiii) Alternation, etc.
v). Set-off (Order 8, Rule 6. and Order 20, Rule 19): A defendant to
a suit for recovery of money can not only defend the suit, but can claim
a set-off in respect of any claim of his own. If his claim exceeds that
Plaintiff, he can make a claim of a decree for the amount in excess
Ordet 8, Rule 6. and Order 20, Rule 19 of the C.P.C.).
The claim made by the defendant in such a case will be tried as if the
defendant had brought a suit, separate from that of the plaintiff, and
even if the plaintiffs suit is dismissed or withdrawn, the defendant's Set-
Off can be tried.
There are, however, certain conditions under which a claim for set-off
can be allowed, namely:
i) Such a claim must be ascertained, i.e. it must be specific and definite.
ii) It must be legally recoverable, i.e. it must not be barred by limitation.
iii) It must be recoverable from all the plaintiffs, if more than one, and
by all the defendants, if more than one.
iv) Such a claim must not exceed the pecuniary limits of the jurisdiction
of the Court.
v) Both the parties must fill the same character in the defendant's claim
as they fill in the plaintiff's.
Q. 7 What is Written Statement? When can a Set Off and Counter
Claim be pleaded?
Introduction
A statement of defence called Written statement, in which the
defendant deals with every material fact alleged by the plaintiff in the
plaint, states any new facts which are in his favour, and adds such legal
objections as he deems fit against the claim .
Order 8 of CPC lays down the provisions related to Written statement.
Meaning: The defendant's written defence statement or_pleading is
called the "Written Statement"
Written statement is the pleading of the defendant. It is prepared in a
concise form to contradict the allegations made against him in the
plaint. It can be filed at any time before the first hearing or within such
time as the Court may permit.
Definition: The Written Statement has not been defined in the Code.
According to the Supreme Court's opinion "the written statement is a
term of specific connotation ordinarily signifying a reply to the plaintiff
filed by the plaintiff".
Set-Off (Order 8, Rule 6 ) : Set off a statutory defense to the
plaintiff’s action. It means, a claim set up against another.
It is a cross-claim which party off sets the original claim under Order
8, Rule 6 of CPC and
Counter Claim(Order 8 Rule 6A to 6G.): The Counter claim is a
cause of action in favour of the defendant against the Plaintiff under
Order 8 Rule 6A to 6G.
Set-Off (Order 8, Rule 6 ):
Set-Off is a statutory defense to the plaintiff’s action. It means, a claim
set up against another.
It is a cross-claim which party off sets the original claim.
It is an extinction of debts of which, two persons are reciprocally
debtors to one another by the credits of which they are reciprocally
creditors to one another. Where there are mutual debts between the
plaintiff and the defendant, one debt may be settled against the other.
A defendant can claim Set off under Order 8, Rule 6.
A defendant to a suit for recovery of money can not only defend
the suit, but can claim a set off in respect of any claim of his own,
If his claim exceeds that of plaintiff, he can make a claim of a decree
for the amount in excess.
The claim made by the defendant in such a case will be tried as if
the defendant has brought a suits, a separate from that of the plaintiff,
and even if the Plaintiff’s suit is dismissed or withdrawn , the
defendant’s set off can be tried.
Kinds of Set-Off:
Set off can be claimed for an ascertained amount, if it is not for an
ascertained amount, the claim will not be permitted.
Thus Set-Off is of Two Kinds:
1. Legal Set-Off and
2. Equitable Set-Off
1). Legal Set-Off: A Legal Set Off is one, which can be claimed for an
ascertain sum of money. It can be claimed as a matter of legal right and
the court is bound to entertain and adjudicate upon it.
Essentials of Set-Off:
To constitute legal set-off, the following conditions under Order 8 Rule
6 are be satisfied:
1. The claim must be one for the recovery of money.
2. The claim should be legally recoverable
3. The sum should be legally recoverable
4. It should be recoverable by the defendant
5. It should be recoverable by the Plaintiff.
 6. It should not exceed the pecuniary jurisdiction of the court.
7. Both parties must fill, in the defendants claim to set off, the same
character as they fill in the plaintiff’s suit.
2)Equitable Set-Off: Generally, set off is allowed in respect of claim
for ascertained sum of money. However there are certain cases in
which, the defendant may be allowed to a set off in respect of an
unascertained sum of money and is called equitable set off.
Equitable set off cannot be claimed as a matter of legal right and the
court has discertaining power to refuse it or adjudicate upon it.
E.g.: A entered into a contract with B by which A shall deliver 100
bales of cotton to B. A stopped supply after giving 25 bales, B refuses
to pay for the 25 bales of cotton already supplied. If A files a suit for
recovery of price for 25 bales, B can claim damages for violating
contract frm A and claim set-off it from the price. It is Equitable Set-
Off.
Counter Claim: ( Order 8, Rule 6 A to 6G)
Counter claim is a cross action by the defendant which was inserted by
the CPC under Order 8 Rule 6A to 6G.
Meaning: “Counter Claim” may be defined as a claim made by the
defendant in a suit against the plaintiff.”
It is a claim independent of and separable from the plaintiff’s claim,
which can be enforce by a cross action. It is a cause of action in favour
of the defendant against the plaintiff.
When the defendant is an action has the claim against the plaintiff,
which he might have asserted by bringing a separate suit, he may raise
it in the existing suit as a counter claim in his written statement, giving
the facts on which it is based.
The object of Counter Claim is to reduce the pendency of cases and
the causes of action and cross claims of similar nature could be clubbed
together and disposed off by a common judgment.
It reduces the expenditure, time and convenience of the parties and
courts.
Characteristics of Counter Claim
The Counter claim shall have the same effect as a cross suit, so as to
enable the court to pronounce a final judgment in the same suit, both
on the original claim and the counter claim.
Counter claim shall be treated as a plaint and governed by the rules
applicable to plaints.
The plaintiff shall be at liberty to file a written statement in answer to
the counter claim of the defendant within such period as may be fixed
by the court.
Distinction between Set-Off and Counter Claim.
Set Off Counter Claim
1.Only for an ascertained sum Ascertained sum is not the
criteria.
2.Arises out of the same Need not arise out of the same
transaction in equitable Set-off. transaction
3.Statutory ground of defence Does not afford any defence.
4.Cannot exceed the Plaintiff’s May exceed the Plaintiff’s claim
claim
5.Not a Cross action It is a Cross action.
Q. 8 Explain the Fundamental rules of Pleadings. When the
amendments of Pleading is permissible?
OR
Q. Explain the Circumstances under which leave to amend the
pleadings shall be refused.

Introduction
Rule 1 Order VI of CPC states about the Pleadings. According to
P.C.Mogha, Pleadings are statements drawn up and filed by each party
to a case stating what is his contentions will be at the trial and giving
all such details as his opponent needs to know in order to prepare his
case, in answer.
The Pleadings includes statement of parties or Counsel recorded before
the framing of Issues, for clarifications of the points in dispute and also
overment but not a document referred in the plaint.
There are 49 types of Plaints and 16 types of Written statements in the
Appendix – A of the CPC.
Meaning: According to Order 6, Rule1 of CPC, Pleading shall mean,
Plaint or Written Statement.
Plaint is the statement of claim in writing and filed by the plaintiff in
which he sets out his cause of action with all necessary particulars.
A Written statement is the statement of the defense in writing filed by
the defendant in which he deals with every material facts, alleged by
the Plaintiff in the plaint and also states any new facts.
Object of the Pleadings:
The object of the pleadings may be summed up as:
(i). To bring the parties to determine the issues
(ii). To prevent surprise and miscarriage of justice.
(iii). To avoid unnecessary expenses and troubles
(iv). To save public time
(v). To eradicate irrelevancy
(vi). To assist the Court in resolving the dispute.
In Krishnalal Gupta. V/s. M/s Dujodwala Industries,
It is stated that the whole object of pleadings is to bring the parties to
an issue, and the meaning of the rules was to prevent the issue being
enlarged, which would prevent either party from knowing when the
cause came on for trial, what the real point to be decided and discussed
was.
The pleadings are also intended to narrow down the parties to definite
issues and thereby to dimmish expenses and delay and to reduce the
evidence required on either side at the time of hearing.
Nature of Pleading/Essential contents of Pleadings (Order 6, Rule
2):
The Law of Pleadings is “Plead Facts and not Law.”
(1). Every pleading shall contain and contain only a statement in a
concise form of material facts.
(2). Every Pleadings shall, when necessary be divided into Paragraphs,
Numbered consecutively each allegation.
(3). Dates, sums and numbers shall be expressed in a pleading in figures
as well as words.
4). Pleadings got to be specific, clear and should be incorporating all
the necessary details which are to be substantiated by way of evidence.
Kinds of Facts:
There are Two kinds of Facts:
1). Facta Probanda ( i.e., Facts to be proved), and
2). Facta Probantia (i.e., evidence)
Fundamental Or General Rules regarding Pleadings:
The CPC lays down the following rules in Order VI regarding
Pleadings of the parties:
1). Every Pleading must state facts and not Law (Rule-2)
2). It must state material facts only and not evidence by which they are
to be proved.
3).It must state such facts in a concise form
4). It must state dates, Sums and figures both in figures and words.
5). The party should not plead conclusions of Law.
6). Legal inferences should never be pleaded.
7) Allegations in anticipation of the opponents answer should not be
made.
8). Legal pleas such as Res-judicata, Estoppel, Limitation may be
pleaded.
9). Every Pleading shall be divided into paragraphs, numbered
consecutively, each allegation being contained in a separate paragraph
(Rule-4).
10). All particulars such as, misrepresentation, fraud, breach of trust
etc, in all other cases, shall be stated.(Rule 4)
11). When the performance or Occurrence of any condition precedent
is intended to be contested, such conditions precedent shall be distinctly
specified and the subject thereto, an averment shall be implied in his
pleading. (Sec. 6).
12). The material content of any document in a pleading to state effect
thereof as briefly as possible.(Rule-7).
13). All the facts such as Fraudulent intention, malice, knowledge etc.,
shall be stated briefly without setting out the circumstances (Rule 10).
14). Whenever any contract or relation between the person,
correspondences/references by letters etc., is to be stated without
setting them out in detail. (Rule 12)
15). The fact which the law presumes is one’s favour or as to which the
burden of proof lies upon the component, need not be placed. (Rule 13)
16). The pleading shall be signed by the party and his pleader. (Rule-
14)
17). Every pleading shall be verified at the foot by the party or by one
of the parties of the pleading who is acquainted with the facts of the
case., with date and Place. (Rule -15).
Amendments of Pleadings: ( Rule 16 & 17 of Order VI R/w Sec.
152 & 152 of CPC)
The courts are empowered to allow the amendments either by striking
out of Opponents pleadings or the Plaintiffs pleadings under Rule 16
and 17 of Order 6 of CPC.
According to Rule 17 of Order VI of CPC, the court may at any stage
of the Pleading, allow either party to alter or amend his pleadings in
such manner and on such terms as may be necessary for the purpose of
determining the real questions in controversy between the parties.
Alteration (Amendment) of the Pleadings:
The occasion for amendment or alteration of pleadings arises in the
following Five ways:
i). Amendments of clerical and arithmetical mistakes in judgments,
decrees, and orders. (Sec.152 of CPC)
ii). Amendments of Pleading in a suit by a court, whether moves thereto
by the parties or not, for the purposes of determining the real question
or issue between the parties (Sec.153 of CPC)
iii). Striking out, or adding parties ( Rule 10(2) of Order I)
iv). Amending (Striking out) one’s, Opponent’s pleadings ( Rule 16 of
Order 6)
v). Amending one’s own pleading- Voluntary amendments (Rule 17-
Order 6).
1). Striking out of Pleadings (Amendment of Opponent’s
Pleadings):
According to Rule 16 of Order VI of CPC, the court may at any stage
of the proceedings order to be struck ot or amend any matter in any
pleading:
a). Which may be unnecessary, scandalous, frivolous or vexatious, Or
b). Which may tend to prejudice, embarrass or delay the trial of the suit,
Or,
c) Which is otherwise an abuse of the process of the Court.
In Iqbal V/s. Hakimuddin (AIR:1995:Raj:123)
The apex court opined that, The court should consider, whether
allegations of complaint are necessary for establishing the defense or
not. It is not allowable to introduce offensive statement unless they are
relevant to the issue and unnecessary allegations are being struck out
from Pleadings.
Leave to amend when to be given: ( Rule 17, Order VI):
Rule 17 allows amendments at any stage which satisfy the following
two conditions:
a). Of not working injustice to the other side, and
b). of being necessary for the purpose of determining the real question
in the controversy between the parties.
Amendment of the Written Statement:
Amendment to the Written statement cannot be considered on the same
principle as an amendment to the plaint. Generally, the defendant
would not be permitted to amend the Written statement to raise a plea
inconsistent with the earlier plead.
However, if the Court is satisfied, then the Written statement can be
amended to add a new defense to substitute or alter the defense or to
withdraw an admission of fact.
If the amendment in Written statement is allowed, is likely to deprive
the other parties of a valuable right, which had occurred to them and
when the application for amendment clearly shows the “malafide
intention” of the applicant, the same cannot be allowed.
Refusal of Amendments, (Order VI, Rule 17):
Leave to amend Pleadings will be refused under the following
conditions:
1). When the amendment is not necessary for the purpose of
determining the real question.
2). Where the effect of the amendment would introduce a totally
different new and inconsistent case which will require further evidence.
3). Where the amendment would cause injustice to the opposite party,
as cannot be compensated for by imposing terms as to Costs or
otherwise.
4). Where the effect of the amendment would to take away from the
defendant a legal right which has occurred to him by lapse of time.
5). Where the plaintiff’s suit would be wholly displace by the proposed
amendment.
6). When the party was fully aware of the facts on which he seeks to
put forward a new case.
7). Where the plaintiff introduce a new and independent cause of action
arising subsequent to the institutions of suit.
8). Where the application for amendment is not made in good faith and
not Bonafide one.
9). Where the application for amendment for a claim or relief barred by
time.
Q. 9 What are costs? Explain the different types of costs awarded
in civil cases?
Introduction:
According to Black’s Law Dictionary “costs is a pecuniary allowance
made to the successful party for his expenses in prosecuting or
defending a suit or a distinct proceeding with a suit”.
Meaning of cost:
Cost is an allowance to the party for expenses incurring in prosecuting
or defending a suit, an incident to the judgment. In England the term is
also used to designate the charges which an attorney or solicitor is
entitled to make and recover from his client, as his remuneration for
professional services, such a legal advice, attendances, drafting,
conducting legal proceedings etc.

Section 35: Section 35 of the Code of Civil Procedure contains the

provision as to costs. The cost of an incident to all suits are in the
discretion of the Court and the court shall have full power to determine
by order out of what property and what extent such costs are to be paid.
All necessary direction for these purposes will be given by the court.
Where the Court directs the costs are not to follow the events the court
shall give it in writing.
Kinds of costs:
The code provides for the following kinds of costs:

1). General costs-Section 35;

2). Miscellaneous costs-Order 20-A;
3). Company costs for false and vexatious claim or defences- Sec. 35A
4) Costs for causing delay-Section 35-B.

(1) General costs: Section 35:

The object of section 35 is to awarding costs to a litigant is to secure to
him the expenses incurred by him in the litigation. It neither enables
the successful party to make any profit out of it nor punishes the
opposite party. The general rule relating to cost is that cost should
follow the event, i.e. a successful party must get the costs and the losing
party should pay the other side.

Principles:
The primary rules in respect of award of general cost are as under:

a). Costs are at the discretion of the court.The said discretion must be
exercised on sound legal principles and not by caprice, chance or
humour. No hard and fast rules can be laid down and the discretion
must be exercised considering the facts and circumstances of each case.

b). Normally, costs to follow the event and the successful party are
entitled to costs unless there are good grounds for depriving him of that
right. To put it differently the loser pays costs to the winner. However,
it does not always depend on who wins and losses in the end. Even a
successful party may be deprived of costs if he is guilty of misconduct
or there are other reasons to do so. Sub-section (2) of section 35
expressly provides that when the court orders that cost should not
follow the event, it must record reasons for doing so.

2). Miscellaneous costs: Order 20-A:

Order 20-A makes specific provisions with regard to the power of the
court to award costs in respect of certain expenses incurred in giving
notices, typing charges, inspecting of records, obtaining copies and
producing witnesses.

3). Compensatory costs: Section 35-A:

The object of Section 35-A is to provide for compensatory costs. This
section is an exception to the general rule on which Section 35 is based,
that the “costs are only in indemnity, and never more than indemnity”.
This section intended to deal with those cases in which Section 35 does
not afford sufficient compensation in the opinion of the court. Under
this provision, if the court is satisfied that the litigation was inspired by
vexatious motive and was altogether groundless, it can take deterrent
action. This section only applies to the suit and not to the appeals or to
the revisions.

Conditions for application for Costs:

The following conditions must exist before this section can be applied:

a). the claim or defence must be false or vexatious.

b). objections must have been taken by the other party that the claim or
defence was false to the knowledge of the party raising it ; and

c). such claim must have been disallowed or withdrawn in whole or in

part.

Maximum amount:
The maximum amount that can be awarded by the court is Rs 3000.But
the person against whom an order has been passed is not exempt from
any criminal liability. In a subsequent suit for damages or
compensation for false claim or defense, the court will take into
account the amount of compensation awarded to the plaintiff under this
section

Other Liability:
A person against whom a order of costs is made is not exempted from
any other liability in respect of false claim or defence made by him.

Appeal:
An order awarding compensatory costs is appealable. But no appeal lies
against an order refusing to award compensatory costs. Since such an
order can be termed as “case decided”, a revision lies.
(4) Costs for causing delay: Section 35-B:
Section 35-B is added by the Amendment Act of 1976. It is inserted to
put a check upon the delaying tactics of litigating parties. It empowers
the court to impose compensatory costs on parties who are responsible
for causing delay at any stage of the litigation. Such costs would be
irrespective of the ultimate outcome of the litigation. The payment of
cost has been a condition precedent for further prosecution of the suit,
if the party concerned is a plaintiff and the defence, if he is a defendant.
The provisions of this Section are mandatory in nature and therefore
the court should not allow prosecution of suit or defence, in the event
of partly failing to pay costs as directed by the court. If a party is unable
to pay costs due to circumstances beyond his control , such as strike of
advocates or staff , declaration of the last day for payment of costs as
holiday, etc. the court can extend the time.
in Ashok Kumar v. Ram Kumar , the Supreme Court observed that
the present system of levying meagre costs in civil matters is wholly
unsatisfactory and does not act as a deterrent to luxury litigation . More
realistic approach relating to costs is the need of the hour.

Conclusion
After going through the provisions of C.P.C. I come to the conclusion
that Sections 35,35-A,35-B and Order 20 were formed with the
objective of awarding costs in order to avoid delay in disposal of suit
and to check unnecessary adjournments. Under section 35 court can
award cost even suo motu and also there is no ceiling limit of amount
of cost. The cost ordered should be actual reasonable. costs including
cost of the time spent by successful party, the transporting, lodging or
any incidental cost besides the payment of court fee , lawyer’s fee and
any other cost relating to the litigation. The award of costs should
always be according to the discretion of the court.
 UNIT - 3
Q.1) Define decree. Explain the essentials & classes of decree.
Introduction
Judgment is a statement made by the judge on the ground of an order
or decree. In other words, decree is an operative part of the judgment.
The adjudication of the Court may be categorised under two heads,
namely - 1. Decree and 2. Order.
Decree - Meaning: The word "Decree" is derived from the Latin term
'Decretum', which means an order of the court having the force of law
and is binding on the parties, concerned.
Definition: Section 2(2) of the Code defines 'Decree' as follows:
Decree" means the formal expression of an adjudication determines the
rights of the parties with regard to all or any the matters in controversy
in the suit and may be either preliminary or final. It shall be deemed to
include the rejection of plaint aro 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.
Essential Elements: To constitute decree, the following ingredients are
to be satisfied.
i) There must be an adjudication.
ii) Such adjudication must have been given in a suit.
iii) The adjudication must have determined the rights of the parties with
regard to all or any of the matters in controversy in the suit.
iv) Such determination must be a conclusive determination.
V) There must be formal expression of such adjudication.
i) Adjudication; To constitute 'decree', the dispute must have been
settled by means of an adjudication. The word 'adjudication. literally
means "to settle judicially or settlement by judicial authority or judicial
determination":
ii) Suit: To constitute decree, the adjudication or judicial deter
mination must have been given in a suit instituted by an aggrieved
party. The word 'suit means, "a case filed/action instituted before the
court of competent jurisdiction seeking protection of right in dispute".
It is not defined in the Code of Civil Procedure, 1908.
But in Hansraj vs. Dehradun-Mussoorie Electric Tramways Co.
Ltd. (AIR 1933 PC 63 (64) 60 1A 13), the word 'suit" ordinarily means
and apart from some context must be taken to mean, "a civil proceeding
instituted by the presentation of a plaint". When there is no civil suit,
there is no decree.
iii) Determination of Rights of Parties in Controversy: To constitute
decree, the adjudication must be with regard to determination of rights
of the parties in respect of matters in controversy. The word rights'
denote substantive rights and not the procedural rights. The word
'parties' refer to "parties to the suit'
The expression 'matters in controversy relates to "the subject matter of
the suit".
iv) Conclusive Determination: To constitute decree, the
determination /adjudication must be conclusive i.e. it must be complete
and final as regards the court, which passed it (decree).
v) Formal Expression of Adjudication: To constitute decree, there
must be formal expression of an adjudication i.e. granting or refusing
any relief claimed in the suit or appeal or other proceedings which may
conform to the decision of suit and embodied in a formal declaration of
the Court. Ail requirements of form must be complied with.
Thus, if no decree has been drawn up, no appeal will lie from judgment.
The decree is to be drawn up in the terms of the judgment. The mere
misdescription of any decision as an order will not make it an order
when it amounts to a decree.
In Deep Chand vs. Land Acquisition Officer (AIR 1994
SC 1901), the Supreme Court laid down the constituents/ingredients of
decree as stated below:
i) There must be an adjudication meaning thereby a judicial.
determination of the matter in dispute;
ii) decision on a matter of administrative nature is not a decree;
I an order dismissing a suit for default of appearance of parties is not a
decree;
iv) dismissal of an appeal for want of prosecution is not a decree;
v) any judicial determination can only be called a decree when it is
passed by a court. Any order passed by an officer below the rank of a
court is not a decree.
Test: Whether or not an order of the court is a decree, the court shall
take into account/consideration, pleadings of the parties and the
proceedings, which led to passing of the order
Decisions, which constitute Decrees : Following are some decisions,
which constitute decrées -
i) Order of abatement of suit;
ii) Dismissal of appeal as time barred;
iii)Dismissal of suit or appeal for want of evidence or proof;
iv) Rejection of plaint for non-payment of court-fees;
v) / Granting or refusing to grant instalment;
vi) Modification of scheme under Section 92 of the Code;
Vii) Order holding appeal not maintainable.
Decisions not amounting to Decrees: The decisions, which are
illustrated below do not amount to decrees -
I) Dismissal of appeal for default;
ії)Appointment of Commissioner to take accounts;
iii) Order of remand;
iv)Order granting interim relief;
V)Return of plaint for presentation to proper court;
vi)Dismissal of suit under Order 23, Rule 1;
vil)Refusing to wind up a company.
Kinds of Decrees:
Decrees may be classified under the following heads
i)Preliminary Decree.
ii) Final Decree and
iii) Partly Preliminary and Partly Final Decree.
i) Preliminary Decree: Where an adjudication decides the rights of the
parties with regard to all or any of the matters in controversy in suit but
does not completely dispose of the suit it will be a preliminary decree.
Whether it completely disposes of the suit it is final decree. A decree
is preliminary when further proceedings have to be taken before the suit
can be disposed of. It declares the rights and liabilities of the parties.
But the actual result will be worked out in further proceedings.
The court will determine only
certain issues. Other questions will be determined at a later stage.
A preliminary decree can be passed in partition suit, suits for accounts
etc.
The Code provides for the passing of preliminary decree in the
following classes of cases: (Order 20, Rule 12 to18, Order-34, Rule. 2
to 8.)
• Suits for possession and for rent or mesne profits (0.20, R.12).
• Administration suits (0.20, R.13).
• Suits for pre-emption (0.20, R.14).
• Suits for dissolution of partnership (0.20, R. 15).
• Suits for accounts between principal and agent (0.20, R.16).
• Suits for partition and separate possession (0.20, R. 18)
• Suits for foreclosure of a mortgage (0.34, Rr.2, 3).
• Suits for sale mortgaged (0.341, Rr.4, 5).
• Suits for redemption of a mortgage (0.34, Rr.7, 8).
The above list is not exhaustive; there may be preliminary decrees in
case not expressly provided for in the Code.

ii) Final Decree: A decree is final when the adjudication disposes the
suit completely._
If all the matters in the suit are decided
it is called final decree. Final decree will be depending upon the
preliminary decree. It is controlled by the preliminary decree A decree
can be partly preliminary and partly final.
A decree may become final in two ways:
1. When the time for appeal has expired without any appeal being.
Filed or the matter has been decided by a decree of the highest
Court.
2. When the decree, so far as regards the Court passing it,
completely disposes of the suit.
It is in the latter sense that the words "final decree are used. The
appealability of a decree, therefore, will not affect its character as a
final decree.
Distinction between Preliminary Decree and Final Decree:
Preliminary Decree Final Decree

1. Further Proceedings are to be taken 1. Completely disposes

before the suit can be completely disposed the suit.
of.
2. Determines only 'some' or 'any' of the 2. Determines all the
matters. rights of the parties.
3. Ascertains what is to be done. 3. States the result with
precision.
4. Independent decree. 4. Dependant on the
preliminary decree
5. A step in a pending suit. 5. Executable decree.
6. More than one preliminary 6. Only one final decree,
decree can be passed

iil) Partly Preliminary and Partly Final Decree: A decree may be

partly preliminary and partly final. Thus where in a suit for possession
of immovable property with mesne profits, the Court-
• Decrees possession of the property, and
• Directs an enquiry into the mesne profits;
the portion (a) is a final decree and the portion (b) is a preliminary
decree.
Similarly, a direction in the final decree leaving distribution of assets
undisposed of is in essence a preliminary decree, and the decree is
partly final and partly preliminary (Ramanathan vs.
Alagappa, AIR 1930 Mad. 528).
The person/party in whose favour, the decree is granted is called
"Decree-holder" and the other party against whom the decree is passed
or the decree is to be executed is called "Judgment/ debtor"
Decree-holder: According to Section 2(3) of the Code, decree. holder
means any person in whose favour a decree has been passed or an order
capable of execution has been made.
A decree-holder is not necessary either a plaintiff or a defendant and
even a man who is not a party to the suit can be a decree-holder. A
decree-holder is one whose name is inscribed on the decree and in
whose favour such decree has been passed.
The word 'Decree-holder does not include an attaching creditor.
JUDGMENT-DEBTOR : According to Section 2(10) of the Code of
Civil Procedure, 1908, Judgment-debtor means any person against
whom a decree has been passed, or an order capable of execution has
been made. Where a decree is passed against a surety, he is a judgment-
debtor within the meaning of this section.

An assignee is not a judgment-debtor. A person who has stood surety

for costs and against whom a decree for costs has been made is a
judgment-debtor, though not even a part to the suit. A judgment-debtor
has nothing to do with the side in which he is assigned i.e. he may be
on either side.
Q. 2 Explain the Consequences of Appearance of Parties and Non
appearance of Parties in a suit.
Meaning:-The Provision of the Code of Civil Procedure is based on a
general principle that, as far as possible, no proceeding in a court of law
should be conducted to the detriment of any party in his absence.
When a suit is instituted in a competent court, both the parties i.e., the
plaintiff and the defendant must appear before the court on the date,
when the suit is posted. Order 9 of the Code enacts the law with regard
to the appearance of the parties to the suit and the consequence of their
non-appearance.
It also provides a remedy for setting aside an order of dismissal of the
suit as also the setting aside of an ex parte decree passed against the
defendant.
Appearance of parties (Order 9 Rule 1 to 12 ):
According to Order 9, the parties to the suit are required to attend in
person or by their pleaders on the day fixed by the court in the
summons.
In case of absence, the parties must show sufficient cause for non
appearance.
If the Plaintiff is absent with out showing sufficient cause for the non
appearance, the court may dismiss the suit. If the defendant is absent
without showing sufficient cause the court may proceed Ex-parte.
Where only defendant appears: Rule 7-11
Where the defendant appears and the plaintiff does not appear, and
the defendant does not admit the plaintiffs claim, wholly or partly,
the court shall pass an order dismissing the suit. But if the defendant
admits the plaintiff’s claim as a whole or a part thereof, the court will
pass a decree against the defendant upon such admission and dismiss
the suit for the rest of the claim.
Rule 9 precludes the plaintiff thereafter from filling a fresh suit on the
same cause of action. He may, however, apply for an order to set aside
the order of dismissal. And if the court is satisfied that there was
sufficient cause for his non-appearance the court may set aside the
order of dismissal and fix a day for proceeding with the suit
Where summons is not served: Rules 2 & 5
Rule 2 of Order 9 enacts that the suit may be dismissed where the
summons is not served, the plaintiff’s failure to pay costs for service of
summons to defendant or to present copies of the plaint.
Ex- Parte Decree:
The expression “Exparte decree” means , “the decree passed by the
court in the absence of the defendant” In case of exparte decree, the
plaintiff will be directed to make out his case, otherwise, the suit will
be dismissed.
The procedure for setting aside an exparte decree has be laid in Order
9 Rule 13 and 14 of CPC.
Remedies for Exparte decree:
The following Remedies are available to the defendants in case of
exparte decree.
o To apply to the court by which such decree is passed to
set it aside ( Order 9-Rule 13) or
o To prefer an appeal against such decree. - Sec.96(2) or
o To apply for review under Order 47-Rule 1 or
o To file a suit on the ground of fraud.
i). Setting aside the Exparte Decree ( Order 9-Rule 13);
According to order 9, rule 13, an exparte decree can be sete aside under
the following circumstances:
a) If the defendant satisfies the court that the summons was not duly
served.
b) That there is sufficient cause for his non appearance before the court.
A mere technicality in the service of summon is not sufficient for
setting aside the decree under the first ground. When the exparte decree
is set aside, notice should be give to the opposite party. What
constitutes sufficient cause for non appearance depends upon the facts
and circumstances of each case. The actual consideration is whether the
defendant honestly intended to be present or not.
ii). To prefer an appeal ( Sec.96(2):
An exparte decree is a decree under section 2(2) of the code and
therefore an aggrieved party can also file an appeal under Section 96(2)
of the code. In such cases, the appellate court can only consider the
decree passed by the lower court on merits as to whether there were
sufficient grounds to whether there were sufficient reasons for the
defendant for non appearance and the court was not justified in passing
an exparte decree against the defendant.
iii). To Apply for Review (Order 47-Rule Rule-1):
Order 47 Rule provides that, an aggrieved party can file an application
for review against an exparte decree.
4). To file a suit on the ground of fraud:
The aggrieved can also file a suit for setting aside an exparte decree on
the ground that the exparte decree is alleged to have been obtained by
fraud.
Limitation
An application for setting aside exparte decree can be made within 30
days from the date of the decree. (Art.123, Limitation Act, 1963).
Q. 3 When do the courts resort to attachment of property and
arrest/detention of the defendant before the judgment?
(Order 38 , Rules 1 to 4 and 5 to 12 )
Introduction
As soon as a plaint in a suit is admitted in the court and if the
circumstances warrant, a plaintiff to a suit may take out against the
defendant any of the following supplemental proceedings in the suit
and may be for his (defendant)
1) Arrest before judgment or
2) Attachment before judgment
3) Injunctions
4) Receiver
5) Security for costs etc.,
Order 38 , Rules 1 to 4 and 5 to 12 , Read with Sec.94 of CPC
provide for arrest before judgement and attachment before judgment.
The Object of this provision is to safeguard the plaintiff against any
attempt made by the defendant to defeat the execution of any decree,
which may be passed against him. This remedy is not a normal remedy.
It will be granted only in certain exceptional circumstances.
Remedies a plaintiff to a suit may take out against the defendant -
Sec.94 Of CPC:
Section of 94 provides that the court may make the following order to
prevent ends of the justice being defeated. The Court may;
1). Issue a warrant to arrest the defendant and bring before the court.
The court may direct the defendant to give security for his appearance.
If he fails to furnish, surely, he may be detained in the civil prison.
2). Direct the defendant to give security to provide any property
belonging to him and order the attachment of any property.
3). Grant a temporary injunction. In case of disobedience, he may be
committed to civil prison. His property may be attached and sold.
4). Appoint a receiver of any property.
5). Make such other interlocutory orders.
Thus this is an extraordinary remedy.
Types of Remedies.
The Plaintiff may at any stage of the suit apply for the arrest of the
defendant or attachment of his property.
The Section 94 provides four types of remedies and they are:
1. Arrest and Detention
2. Attachment and Sale
3. Temporary injunctions
4. Appoint of Receiver
Arrest Before Judgment (Order 38- Rule 1 to 4):
The Plaintiff can make an application to the court for arrest of the
defendant at any stage before the judgment.
The court may pass an order for arrest (arrest-warrant), if it is satisfied
by an affidavit of the party or one of the following grounds:
Where the defendant, intentionally avoids the process of the court or
delays the execution of decree against him, has committed any one of
the following acts;
i) If he (defendant) has absconded or left the local limits of the
jurisdiction of the court, or
ii) If he is about to abscond or leave from the local limits of the
jurisdiction of the court; or
iii) If he has disposed of or removed his property or any part
thereof.
iv) If he is about to leave India.
Exceptions ( Sec. 16 (a) to (d) ):
The order for arrest before judgment shall not be passed in respect of
any suit for land or immovable property as specified in Section 16(a)
to (d) of CPC.
Security ( Order 38, Rule 2):
Rule 2 of Order 38, of CPC provides that where the defendant fails to
show such cause the court shall order him either to deposit in the Court,
money or other property sufficient to answer the claim against him, or
to furnish security for his appearance at any time when called upon
while the suit is pending and until satisfaction of any decree that may
be passed against him in the suit.
Attachment Before Judgment- (Order 38 – Rule 5 to 12 and
Sec.95.)
Order 38 Rule 5 to 12 of CPC provide for attachment before judgment.
The Object is to protect the interests of the plaintiff and to prevent the
defendant to defeat the right of the plaintiff.
The plaintiff can make an application to the court for attachment of the
defendant’s property, at any stage before the judgment (even before the
service of summons).
If the attachment is groundless, the defendant can claim compensation
from the plaintiff under Sec. 95.
Conditions/Grounds (Order 38, Rule 5):
The court may pass an order for attachment before judgment, provided
the following conditions are satisfied (Order 38 Rule 5).
1. If the defendant is about to dispose of the whole or any part of his
property, or
2. If he is about to remove the whole or any part of the property from
the local limits of the jurisdiction of the court.
In the circumstances stated above, the court may direct the defendant
either to furnish the security or the value of the same or such portion
thereof as may be sufficient to satisfy the decree passed against him.
If the defendant fails to show cause for not furnishing the security or
fails to furnish the security required or such portion thereof as appears,
sufficient to satisfy any decree, the Court may order for attachment.
Mode of making of Attachment:
The court, while passing the order for attachment must take utmost care
and caution against the proof as to the intention of the defendant. Once
the order is passed, if it is final and prevents the owner from alienating
the property till further orders.
However, any agricultural produce in possession of an agriculturist is
not subject to attachment.
Exception to Attachment (Order 38, Rule 12):
Agricultural produce not attachable before judgment under Rule 12 of
Order 38 of CPC, lays down that nothing in the order 38 shall be
deemed to authorize the plaintiff to apply for the attachment of any
agricultural produce in the possession of Agriculturist or to empower
the court to order the attachment or production of such produce.
Q. 4 What is meant by executing court? State its powers, and
Explain the different modes of executing a decree in Money suit?

Introduction
Sections 36 to 74 and Order XXI of the Code of Civil Procedure 1908
lay down the provisions relating to the execution of decrees that are
orders passed by the Court. Execution is a process by which the decrees
and orders passed by the Court are enforced. When a plaint files a suit
against the defendant was claiming some relief. Then, the Court may
pass decree or order in favour of the plaintiff providing some relief
against the defendant. If the defendant does not meet the liability the
decree or order in favour of the plaintiff remains unexecuted. Then, the
plaintiff/decree holder can approach the Court for execution of such
decree/order.
Meaning of Executing Court/Transferee Court : The Court to which
a decree has been sent for execution is called a transferee
Court/Executing Court.
Transferee Court is authorised to decide all objections as to the
executability of the decree.
It has no jurisdiction to question the validity of the decree.
It cannot question the jurisdiction of the Court, which passed the
decree. It has no power to correcting mistakes in the decree.
1). Who May apply for execution: Order 21 states the persons who
are entitled to apply for execution.
They are;
• The decree-holder (Order 21, Rule 10).
• If the decree has been transferred by the decree holder. to the
transferee (Order 21, Rule 16). This is to enable the transferee To
apply for execution of the decree.
 • The interest in the decree must have been transferred by an
assignment in writing. Only the transferee of the decree can apply
for execution, not the transferee of the property.
• If the decree has been passed jointly in favour of more persons
than one, any one of such persons may apply for execution (Order
21, Rule 15).
• If the decree holder is dead, his legal representatives may apply
for execution.
Execution can be applied against the judgment-debtor or if he is dead,
against his legal representatives.
In the second case, according to Sec.50, the legal representatives shall
be liable only to the extent of the property, which they got from the
deceased.
2. Application for Execution (Order 21, Rule 11) : The application
for execution must be in strict compliance with Rule 11(2) to 14 of
Order 21. Otherwise, the court may reject the application
3. Contents of application: An application for execution shall contain
the following particulars -
i)the number of the suit;
ii) the name of the parties;
iii) the date of the decree;
iv) where any appeal has been preferred for the decree;
v) whether any and (if any) what, payment or other adjustment of the
matter, in controversy has been made between the parties subsequent
to the decree;
vi) whether any and (if any) what previous application have been made
for the execution of the decree, the dates of such applications and their
results;
vi) the amount with interest (if any) due upon the decree or other relief
granted thereby together with particulars of any cross decree, whether
passed before or after the date of the decree sought to be executed;
viii) the amount of costs (if any) awarded;
ix) the name of the person against whom execution of the decree is
sought; and
x) the mode in which the assistance of the court is required, whether
• by the delivery of any property specifically decreed,
• by the attachment, or by the attachment and sale, or by the sale
without attachment of any property,
• by the arrest and detention in prison of any person,
• by the appointment of a receiver,
• otherwise, as the nature of the relief granted may required.
The Court to which an application is made under sub-rule (2) may
require the applicant to produce a certified copy of the decree.
4. Notice: Notice shall be issued to the decree debtor in the following
cases:
1. Where the application for execution is made more than one year
after the date of the decree (Order 21, Rule 22).
2. Where the execution is applied for against the legal representation
of the party to the decree (Section 44, A and Order 21, Rule 22,
5. Courts competent to execute: A decree may be executed by the
Court which passed it or by the Court to which it is sent to execution
(Section 38). No court other than the above mentioned Court can
execute a decree.
The Court to which a decree has been sent for execution is called a
transferee Court, Transferee Court is authorised to decide all objections
as to the executability of the decree. It has no jurisdiction to question
the validity of the decree. It cannot question the jurisdiction of the
Court, which passed the decree. It has no power to correcting mistakes
in the decree.
6). Powers of the Executing Court: Under Section 47 the executing
Court has been given. The Court may execute the decree in the
following ways:
• By delivery of any property specifically decreed.
• By attachment and sale or by sale without attachment.
• By arrest and detention in prison.
• By appointing a receiver.
• By any other manner as the Court thinks fit.
In the case of detention, the detention order shall not be made without
giving an opportunity to the judgment debtor or show cause why he
should not be detained.
The Court may order detention of the judgement debtor in the civil
prison the Court is satisfied that -
i) The judgment debtor is likely to abscond or has dishonestly
transferred his property with a view to delay or obstruct the execution,
(ii) Having means to pay but refuses to pay, or
iii) The decree amount is a sum held by the judgement debtor in a
fiduciary capacity (Section 51).
7. Decrees for the payment of money: Every decree for the payment
of money, may be executed -
(i) Personally, by detention in the civil prison of the judgment debtor
(ii) By attachment and sale of his property.
iii) By both (Order 21, Rule 30).
Section 47 provides that all questions arising between the parties or
between their representatives relating to the executing shall be
determined by the Court executing the decree. The proceedings under
this Section is treated as a suit.
8. Execution against the person of the Judgment Debtor:
Where a judgment debtor makes an application for execution of money
decree, for arrest or detention of the judgment debtor in civil person,
the court issues a notice to the judgment debtor, calling him to appear
before the court as a specified/particular date to show cause why he
should not be committed to the civil prison.
The court need not issue warrant for this purpose. Rule 40 provides that
the judgment debtor, after receiving the notice, may appear before the
Court and plead that he cannot pay the money due to poverty or other
sufficient reasons.
If the Court is satisfied, it can pass an order rejecting the application
for arrest.
If the decree debtor appears before the Court and fails to satisfy the
Court for non-payment of the amount. the Court shall arrest him.
Where a warrant is issued, it should direct the officer to arrest and bring
the judgment debtor immediately.
(i). Prohibition of arrest or detention of women: As per Section 56
of the Code of Civil Procedure, not withstanding anything in this part
the Court shall not order the arrest or detention in the civil prison of a
woman in execution of a decree for the payment of money.
(ii). Detention and release: According to Sec.58 of CPC;
1). Every person detained in the civil prison in execution of a decree
shall be so detained :-
a). Where the decree is for the payment of sum of money exceeding
Rs.2,000/-, for a period not exceeding Three months, and
b). where the decree is for the payment of a sum of money exceeding
two thousand rupees, but not exceeding Five thousand rupees, for a
period not exceeding 6 weeks.
Provided that he shall be released from such detention before the
expiration of the said period of detention:
i). on the amount mentioned in the warrant for the detention being paid
to the officer in charge of the civil prison; or,
ii). On the decree against him being otherwise fully satisfied; or
iii). On the request of the person on whose application he has been so
detained; or
iv). On the omission by the person, on whose application he has been
so detained to pay subsistence allowance:
Provided, also, that he shall not be released from such detention,
without the order of the Court.
2). A Judgment debtor released from detention under this section
shall not merely by reason of his release be discharged from his debt,
but he shall not be liable to be re-arrested under the decree in
execution of which he was detained in the civil prison.
Release on the Ground of illness: Sec.59 of the CPC provides that:
1). At any time after a warrant of the arrest of the judgment debtor has
been issued, the court may cancel it on the ground of his serious illness.
2). Where a judgment debtor has been arrested, the court may release
him, if, in its opinion, he is not in a fit state of health to be detained in
the civil prison.
3). Where a judgment debtor has been committed to the civil prion, he
may be released therefrom;
a) by the State government, on the ground of the existence of any
infectious or contagious disease; or
b) by committing court, or any court to which that court is subordinate,
on the ground of his suffering from any serious illness.
4). A judgment debtor released under this section, may be re-arrested,
but the period of his detention in the civil prison shall not the aggregate
exceed that is prescribed by Sec.58 of CPC.

Q. 5 When can Court appoint Receiver? State the Powers and

Duties of the Receiver.

Introduction
The main function of the Courts is to protect the legal rights of the
individuals in the society. If the right of an individual has already been
infringed, he can get his right restored by filing a suit in a court of
competent jurisdiction. When his right is threatened to be infringed, it
can be prevented through an order of the court viz., injunction,
appointment of Receiver etc.
Meaning and Definition
The expression Receiver has not been defined under the CPC. Receiver
is an Officer appointed by the Court to manage the property under
litigation/dispute, till the final decision is given by the court. He also
acts as a representative of the parties of the dispute.
Appointment of Receiver: (Order 40)
Order 40 of CPC provides for the appointment of a Receiver by the
Court. Court confers wide jurisdiction on the court to appoint and
remove a receiver.
The receiver must be impartial, i.e., he is not interested in either of the
parties.
He can be appointed only before the suit is filed.
The Court appoints a receiver according to legal principles and equity.
Power of the Receiver: Order 40-Rule 1(1)(d)
A Receiver is an officer or representative of the Court. The court
confers on him the following powers under Order 40-Rule 1(1)(d)
i) To institute and defend suits
ii) To realize, manage, protect, preserve, and improve the
property.
iii) To collect, apply and dispose of the rents and profits
iv) To execute documents
v) Such other powers as the Court thinks fit.
The above Powers are subject to discretion of the Court.
A Receiver can not Sue or be Sued without the leave of the Court.
He is entitled to the remuneration fixed by the court for the services
rendered by him.
Duties of the Receiver: - Order 40 Rule -3
Order 40 Rule -3 of CPC speaks about the duties of the Receiver as
stated below:
1. He has to maintain the accounts properly
2. He should not delegate his duties/powers
3. He has a duty to act impartially and should not have any interest
under the litigation.
Liabilities of the Receiver:
If the Receiver fails to discharge his duties properly;
i) The court may attach his properties to make good to the parties
interested.
ii) If he is guilty of negligence or willful default , the court may
attach his property to indemnify the loss to that effect.
iii) He is also liable to deliver the properties at his disposal at the
order of the Court.
Q. 6 What is a Commission? What are the different purposes for
which Commission may be appointed?

Meaning of Commission:
“Commission” means, a person or body of persons appointed by the
court t perform certain specific duties.
Order 26 R/w Sections 75 to 78 of CPC deal with Commissions
Appointment of Commission: Sec. 75
Appointment of Commission is at the discretion of the Courts.
Purposes of appointment of Commission (Sec.75):
Sec. 75 provides that the court may issue a Commission to:
1). To examine any person
2). To make any investigations
3). To examine or adjust accounts.
4). To make partition of immovable property
5). To hold scientific, technical or expert investigations
6). To conduct sale of property which is of a perishable nature
7). To perform any ministerial act.
Commission to Examine Witness (Order 26):
Order 26 provides for appointment of Commission for the purpose of
examining witnesses.
Certain witnesses may be unable to attend the Court due to sickness or
infirmity etc. The Court may issue a Commission for examining the
following persons:
1. Any person residing beyond local limits of the Court’s
jurisdiction.
 2. Any person who is about to leave such limits
3. Any Government servant who cannot attend the Court without
determent to public service.
Local Investigations:
The court may issue Commission for making any local investigation in
the following cases:
1. For elucidating any matter in dispute
2. For ascertaining the market value of any property
3. To fix mesne profits damages, net profits etc.
The report and depositions will be admitted in evidence. The
Commissioner can be examined personally in the Court with the
permission of the Court.
If the report is unsatisfactory, the Court may reject the report and
appoint a new commission.
The expenses of the commission shall be met by the party seeking the
commission.

Powers of Commissioner: Order 26- Rule 16

Rule 16 enacts the powers of the Commissioners. Any Commissioner
appointed under Order 26 has the following powers:
a) The Commissioner examines the witness or witnesses referred to
him.
b) He shall call for and examine the documents and other relevant
things to subject of inquiry, which is involved in the suit.
c) He shall enter at any reasonable time upon or into any land or
building mentioned in the order
Rights of Commissioner: (Order 26, Rule 15)
1.Fee: ( Rule 15) :The Commissioner is paid fee for the work done,
which shall be fixed by the Court. The amount shall be paid by the party
at whose instance or for whose benefit the commissioner is issued.
2. Protection: The Commissioners is appointed by the Cout , He is
entitled to get the protection, if requires.
Duties of Commissioner –( Order 26, Rule 10,12,14,16A)
1.The delegation of power to the Commissioner by the Cour cannot
extend to the delegation of power of the Court.
2. The Commissioner must act according to the instructions given by
the court.
3. He must be impartial
4. He has to record the statement openly.
5. Rule -10, provides that the Commissioner, after local inspection as
he deems necessary and after reducing to writing the evidence taken by
him, shall return such evidence together with his report in writing
signed by him, to the Court.
6. Rule -10, lays down that where the Court is for any reason
dissatisfied with the proceedings of the Commissioner, it may direct
such further inquiry to be made as it shall think fit.
7. When the Commissioner completes the Sale of movable property he
must write a statement, accounts and shall deposit them before the
Court along with cash deposit (Rule-10)
8. To carry out The Instructions of the Court: The Rule 12 provides that
the Court shall furnish the Commissioners with such part of the
proceedings and such instructions as appear necessary, and the
instructions shall distinctly specify whether the Commissioner is
merely to transmit the proceedings which he may hold on the inquiry,
or also to report his own opinion on the point referred for his
examination.
9. Rule-14, provides that the Commissioner must follow the
instructions issued by the Court and shall make the partitions
accordingly.
10. Rule 16A- provides that while the Commissioner is examining the
witness or witnesses and he puts any question to a witness, the witness
or his advocate objects such question, then the Commissioner shall
have to write the question, the answer the objections and the name of
the party or as the case may be, the pleader so objecting. The
Commissioner shall not take down answer to a question, which is
objected to, on the ground of privilege, but may continue with the
examination of witness, leaving the party to get the question of
privilege decided by the Court. If the Court decides that the question of
is not protected under the privileges of Communication, then again the
witness is directed to the Commissioner. Then the Commissioner shall
record such question in record.
11. The Commissioner has to return his Commission report after
discharging the duty entrusted to him, to the Court within the prescribed
period.
He must explain the causes of the delay, if caused, it is always safe that
the Commissioner must report within the time given to him.
Q. 7 What is Attachment? Explain properties which are not liable
for attachment and sale in execution of decree (Order 21, Rule 41
to 57, Sec 60 to 61).

Introduction
Execution against person takes place by the process of arrest and
detention., while execution against property is to take place by the
process of “Attachment and Sale of property or Sale without
attachment of property belonging to Judgment Debtor.
Meaning of Attachment:
The Attachment is used in law referring to the action of seizing
property on predicting a favourable judgment for a plaintiff who
claims to have lent money, mesne profits etc., to the defendant.
Attachment is an initial procedure where the property is captured
before a final judgment is delivered.

Object of Attachment of Property:

The object of attachment of property is to inform/give notice to the
judgment debtor not to alienate the property to anyone and also to
warn/inform the public not to purchase the property of the Judgment
Debtor.

Circumstances for attachment of property:

When the judgement debtor, in the execution of a decree, is unable to
pay the amount decreed, the decree holder may apply to the Court to
orally examine the Judgement debtor as to the debts owed by him and
the assets or means of satisfying the same.
The Court makes orders for attendance and production of book or
documents.
It may also require the judgement debtor to file an Affidavit stating
the details of his assets, in case the money decreed has not been paid
for a period of 30 days, from the date of passing the decree.
In case of disobedience of the above order, it may direct such person
to be detained in civil prison for a term not exceeding 'three months'.

If the assets are furnished by the judgement debtor, the Court may
order attachment of such properties, subject to the provisions of
C.P.C.

Properties attachable (Sec.60):

The following properties are liable to Attachment and Sale in
execution under the provisions of Sec.60 of CPC:
1. Lands, houses or other buildings.
2. Goods, money, bank notes, cheques, bill of exchange. hundis,
promissory notes, Government securities, bonds and other
Securities for money, debts, shares in Corporation/Company.
3. Properties held in trust by another person on behalf of the
judgement debtor.
4. Except those mentioned, (in properties not attachable) all other
saleable movable or immovable property belonging to the
judgement debtor

Properties not attachable (Sec. 60 and 61) :

1. Necessary wearing apparel (clothes), cooking vessels, beds and
beddings of the judgement debtor, his wife and children.
2. Personal ornaments for religious usage which cannot be parted
with by any woman. (For E.g.: Mangalsutra of a married woman)
3. Tools of artisans, and if the judgement debtor is an
agriculturist, his tools of animal husbandry, cattle and seed grains
and agricultural produce for his livelihood.
4. Houses and other buildings belonging to an agriculturist or a
labour or a domestic servant, and occupied by him.
5. Books of account.
6. A right to sue for damages.
7. Any right of personal service.
8. Stipends and Gratuities allowed to pensioners of Government
or local authority and political person.
9. Wages of labourers and domestic servants, whether payable in
money or in kind.
10. Salary to the extent of first Rs. 1,000/- and 2/3rd of the
remainder, in execution of a decree except decree for
maintenance.
11. 1/3 of salary in execution of any decree for maintenance.
12. Pay and allowance of persons governed under Air Force Act,
Army Act or Navy Act.
13. All compulsory deposits and other sums of any fund under
Provident Fund Act 1925 and deposits under Public Provident
Funds Act 1968.
14. Money payable under Life Insurance policy of the judgement
debtor.
15. The interest of a tenant in a residential building to which Rent
Control Law is applicable.
16. Expectancy of succession by survivorship or any contingent
right of interest.
17. Right to future maintenance.
18. Any allowance declared by any Indian Law to be exempt
from Attachment. Any movable proper exempt from Attachment
under execution of a decree.
Q.8 What is an Ex- Parte Decree? State the remedies against it.
OR
Q. What is an Ex- Parte Decree? State the remedies to the person
against whom the decree is passed.

The expression “Exparte decree” means , “the decree passed by the

court in the absence of the defendant” In case of exparte decree, the
plaintiff will be directed to make out his case, otherwise, the suit will
be dismissed.
The procedure for setting aside an exparte decree has be laid in Order
9 Rule 13 and 14 of CPC.
Remedies for Exparte decree:
The following Remedies are available to the defendants in case of
exparte decree.
o To apply to the court by which such decree is passed to
set it aside ( Order 9-Rule 13) or
o To prefer an appeal against such decree. - Sec.96(2) or
o To apply for review under Order 47-Rule 1 or
o To file a suit on the ground of fraud.
i). Setting aside the Exparte Decree ( Order 9-Rule 13);
According to order 9, rule 13, an exparte decree can be sete aside under
the following circumstances:
a) If the defendant satisfies the court that the summons was not duly
served.
b) That there is sufficient cause for his non appearance before the court.
A mere technicality in the service of summon is not sufficient for
setting aside the decree under the first ground. When the exparte decree
is set aside, notice should be give to the opposite party. What
constitutes sufficient cause for non appearance depends upon the facts
andf circumstances of each case. The actual consideration is whether
the defendant honestly intended to be present or not.
ii). To prefer an appeal ( Sec.96(2):
An exparte decree is a decree under section 2(2) of the code and
therefore an aggrieved party can also file an appeal under Section 96(2)
of the code. In such cases, the appellate court can only consider the
decree passed by the lower court on merits as to whether there were
sufficient grounds to whether there were sufficient reasons for the
defendant for non appearance and the court was not justified in passing
an exparte decree against the defendant.
iii). To Apply for Review (Order 47-Rule Rule-1):
Order 47 Rule provides that, an aggrieved party can file an application
for review against an exparte decree.
4). To file a suit on the ground of fraud:
The aggrieved can also file a suit for setting aside an exparte decree on
the ground that the exparte decree is alleged to have been obtained by
fraud.
Limitation
An application for setting aside exparte decree can be made within 30
days from the date of the decree. (Art.123, Limitation Act, 1963).
Q. 9 What are the various modes of execution of decree

Introduction:
The term "execution" refers to carrying out, enforcing, or giving effect
to a court of justice order or verdict. In layman's terms, "execution"
refers to the process of executing or giving effect to a court's decree or
judgement by requiring the judgment-debtor to carry out the decree or
order's command and allowing the decree-holder to reclaim the object
awarded to him by judgement.

Meaning: "Execution is the enforcement of decrees and orders of the

Court by the process of the Court." As a matter of fact, execution is
the formal procedure prescribed by law whereby the partly entitled to
the benefit of a judgment may obtain that benefit.

S. 36 TO 74 AND O. 21: In a suit, after the pronouncement of

judgment and passing of decree in respect of the relief given by the
Court, the next step is the execution of decree or order.

In Satyawati v. Rajinder Singh & Anr., (2013) 9 SCC 491, the

Hon’ble Supreme Court held that there should not be unreasonable
delay in execution of a decree because the decree holder is unable to
enjoy the fruits of his success by getting the decree executed, the
entire effort of successful litigant would be in vain.
Powers of Court to enforce execution (Section 51)
Subject to such conditions and limitations as may be prescribed, the
Court may, on the application of the decree-holder, order execution
of the decree—
(a) by delivery of any property specifically decreed;
(b) by attachment and sale or by the sale without attachment of
any property; (c) by arrest and detention in prison 3 for such
 period not exceeding the period specified in section 58, where
arrest and detention is permissible under that section]; (d) by
appointing a receiver; or
(e) in such other manner as the nature of the relief granted may
require”

Mode of execution:
There are various modes of execution of decree provided in the Code.
A decree may be enforced, as specified U/s 51 of the Code of Civil
Procedure-

a). by delivery of any property specifically decreed;

b). by attachment and sale or by sale without attachment of any
property.
d). by arrest and detention in prison for such period not exceeding the
period specified in S. 58, where arrest and detention is permissible
under that section;
e). by appointing a receiver; or
f). in such other manner as the nature of the relief granted may require.

1.By delivery of Property: Section 51 (a) Rules 31, 35 and 36.

a). Specific moveable property: The decree for any specific movable
properties which do not include money and are in the possession of
judgment debtor may be executed:-

i) by seizure and delivery of property; or

ii) by detention of the judgment debtor; or
iii) by attachment and sale of his property; or
iv) by attachment and detention both.
The provisions of Rule 31 of O. 21 are not applicable for the execution
of a decree for money or where the property is not in possession of the
judgment debtor but is in the possession of a third party.

b). Immovable property: Rules 35 and 36 Of O. XXI provide the

mode of executing decrees, for possession of immovable property.
Where the decree is for immovable property in the possession of
judgment debtor or in the possession of any person bound by the decree
,it can be executed by removing the judgment debtor or any person
bound by the decree and by delivering possession thereof to the decree
holder.

2). Attachments and Sale of Property: (Section 51(b) Sections 60

to 64 and Rules 41 to 57 of Order XXI)
The Court is empowered to order execution of a decree by attachment
and sale or by sale without attachment of any property and the sale of
property without an attachment is merely an irregularity and such sale
is not void or without jurisdiction and does not vitiate the sale.

Sections 60 to 64 and Rules 41 to 57 of Order XXI deal with the subject

of attachment of property.

An executing Court is competent to attach the property if it is situated

within the local limits of the jurisdiction of the Court and the place of
business of the judgment debtor is not material. The provisions of the
Code, however, do not affect any local or special law. The attachment
and sale under any other statute can be made and the judgment debtor
cannot claim benefit under the Code.

3). Arrest and Detention: Section 51 (c)

One mode of the execution of a decree is arrest and detention of a
judgment debtor in the Civil Prison.
The provisions stated in proviso to Section 51 are relevant in this
regard and are as under:-

An order of arrest and detention of judgment debtor in civil prison can

be passed by the Court while executing the decree for payment of
money, or for specific moveable property, or for specific performance
of a contract, or for an injunction, or where a decree for specific
performance of a contract or for an injunction is against a corporation.

But the persons like a woman, judicial officers, the parties and their
pleaders, members of Legislative Bodies, a judgment debtor etc.,
cannot be arrested under certain circumstances

An order of detention of judgment debtor in civil prison shall not

be passed, in execution of a decree for the payment of money,
where the total amount of such decree does not exceed two
thousand rupees.

Period of detention: According to S. 58(1), every person detained

in the civil prison in execution of a decree shall be so detained,
where the detention is for the payment of a sum of money –

i). exceeding five thousand rupees- for a period not exceeding 3

months, and

ii). exceeding two thousand rupees, but not exceeding five

thousand rupees - for a period not exceeding six weeks.
4.By Appointment of Receiver: Section 51(d), XXI, Rule 11
The provisions relating to the execution by appointment of a Receiver
are provided in Order XXI, Rule 11 (2) (J) (iv).

An execution of a decree by appointment of receiver is an equitable

remedy which cannot be claimed as a right and is granted by the Court
in its discretion, and the same is an exception to the general rule that a
decree holder can choose the mode of execution and that the Court has
no power to refuse the mode chosen by him. The provisions of section
51 (d) should be read with - the provisions of Order XL, Rule 1.

In Onkarlal v. V.S. Rampal, it was held that Execution by

appointment of a receiver is known as equitable execution and is
entirely at the discretion of the court. It cannot be claimed as a matter
of right.

CONCLUSION

Execution signifies the carrying out, enforcing, or giving effect to a

court of justice order or verdict. Order 21 of CPC contains rules that
apply to a variety of situations and gives appropriate remedies to
judgement debtors, claimant objectors, and other parties other than the
decree-holder.
Q. 10 Explain the kinds of issues and state the provisions of CPC
relating to the framing of issues.
Or
Q) What is meant by Issue? How issues are framed? State the
powers of the court to amend or strike out Issue. (Order 14)

Introduction
The term "issue" in a civil case means a disputed question relating to
rival contentions in a suit. It is the focal point of disagreement,
argument or decision. It is the point on which a case itself is decided in
favour of one side or the other, by the court.

Framing of issues is probably the most important part of the trail of a

civil suit. For a correct and accurate decision in the shortest possible
time in a case, it is necessary to frame the correct and accurate issues.
Inaccurate and incorrect issues may kill the valuable time of the court.

In Siddhi Chunilal vs. Suresh Gopkishan, it was observed that if

correct and accurate issues were not framed, it leads to gross injustice,
delay and waste of the court's valuable time in deciding the matter.

If defendant makes no defence, framing and recording issue by the

Court does not arise, in such a case, a Court need not frame and record
issue in as much as the defendant makes no defense at the first hearing
of the suit.

Definition of issues
According to the dictionary meaning, "issue" means a point in question;
an important subject of debate, disagreement, discussion, argument or
litigation. Issues mean a single material point of fact or law in litigation
that is affirmed by one party and denied by the other party to the suit
and that subject of the final determination of the proceedings.
In Howell v. Dering, the court held that, an issue is that which, if
decided in favour of plaintiff, will in it give a right to relief; and if
decided in favour of the defendant, will in itself be a defence.

Issues arise when a material proposition of fact or law is affirmed by

one party and denied by the other party to the suit.
Kinds of issues:
As per the Order 14 Rule 1(4) of the C.P.C. issues are of two kinds:
a). Issues of fact
b). Issues of Law.
How issues are framed
ORDER XIV : Settlement of Issues and Determination of Suit on Issues
of Law or on Issues agreed upon.
Rule 33 of Karnataka Civil Rules of Practice, 1967 gives the guidelines
for the framing of issues:
1. Framing of issues:
1. Every material proposition of fact and every proposition of law
which is affirmed by the one side and denied by the other, shall be made
the subject of a separate issue.

2. Every issue of fact shall be framed as to indicate on whom the burden

of proof lies.

3. Every issue of law shall be so framed as to indicate, either by a

statement of admitted or alleged facts, or by reference to the pleadings
or some document mentioned therein, the precise question of law to be
decided.

4. No proposition of fact which is not itself a material proposition but

relevant only as tending to prove a material proposition shall be made
subject of an issue.
5. No question regarding admissibility of evidence shall be made
subject of an issue.

6). Issues arise when a material proposition of fact or law is affirmed

by the one party and denied by the other.
7). Material propositions are those propositions of law or fact which a
plaintiff must allege in order to show a right to sue or a defendant must
allege in order to constitute his defence.
(8) Each material proposition affirmed by one party and denied by the
other shall form the subject of distinct issue.
9). At the first hearing of the suit the Court shall, after reading the plaint
and the written statements if any, and 1 [after examination under rule 2
of Order X and after hearing the parties or their pleaders], ascertain
upon what material propositions of fact or of law the parties are at
variance, and shall thereupon proceed to frame and record the issues on
which the right decision of the case appears to depend.
10). Nothing is this rule requires the Court to frame and record issued
where the defendant at the first hearing of the suit makes no defence.
But if the Court is of the opinion that the case or any part thereof may
be disposed of on an issue of law only, it may try that issue first, if that
issue relates to:

I. The jurisdiction of the Court; or

II. A bar to the suit created by any law for the time being in force
Court to pronounce judgment on all issues Order 14 rule 2.
1). Notwithstanding that a case may be disposed of on a preliminary
issue, the Court shall, subject to the provisions of sub-rule (2),
pronounce judgment on all issues.
2). Where issues both of law and of fact arise in the same suit, and the
Court is of opinion that the case or any part thereof may be disposed
of on an issue of law only, it may try that issue first if the issue relates
to:
(a) the jurisdiction of the Court, or
(b) a bar to the suit created by any law for the time being in force, and
for that purpose may, if it thinks fit, postpone the settlement of the other
issues until after that issue has been determined, and may deal with the
suit in accordance with the decision on that issue.]
Materials from which issues may be framed. Order 14 rule 3.
The Court may frame the issues from all or any of the following
materials:
(a) allegations made on oath by the parties, or by any persons present
on their behalf, or made by the pleaders of such parties;
(b) allegations made in the pleadings or in answers to interrogatories
delivered in the suit;
(c) the contents of documents produced by either party.
Court may examine witnesses or documents before framing issues
(Order 14 rule 4.)
Where the Court is of opinion that the issues cannot be correctly framed
without the examination of some person not before the Court or without
the inspection of some document not, produced in the suit, it 3 [may
adjourn the framing of issues to a day not later than seven days] and
may (subject to any law for the time being in force) compel the
attendance of any person or the production of any document by the
person in whose possession or power it is by summons or other process.
Power to amend and strike out, issues. Order 14 rule 5.
The Courts have wide powers to amend or strike out any issues framed
at any stage before passing the decree. Further, the Court has been
given powers to amend or frame additional issues as may be necessary
for determining the matters in controversy between the parties under:

1). The Court may at any time before passing a decree amend the issues
or frame additional issues on such terms as it thinks fit, and all such
amendments or additional issues as may be necessary for determining
the matters in controversy between the parties shall be so made or
framed.
2). The Court may also, at any time before passing a decree, strike out
any issues that appear to it to be wrongly framed or introduced.
In MB Sanghvi v Secretary, Madras Chillies Merchant, Supreme
Court held that, the Court should not determine an issue which does not
arise on the pleadings and should not decide a suit on a matter on which
no issue has been raised. No issue need be framed on a point of law
which is perfectly clear.

In Akha Ram v LR of Ram Sahai, the court held that where broader
issue framed having mixed facts, some facts relating to plaintiff and
some facts relating to defendant, the trial Court allowing plaintiff to
lead evidence of defendant was not improper.
Conclusion:
Issues are very important not only for the parties but also for the Court.
Thus, framing of issues is a very important stage of a civil trial. Parties
are required to prove or disprove the issues framed by the court, not the
pleading. On the other side, court is also bound to give decision on each
framed issue. Therefore, the Court is not to decide those matters on
which no issues have been framed.
Q. 11 Explain the provisions of C.P.C. relating to the discovery,
inspection and production of documents.

Introduction:
Discovery means to compel the opposite party to disclose what he has
in his possession or power. It is thus a compulsory disclosure by a
party to an action of facts or documents on which the other side
wishes to rely – Concise Oxford English Dictionary.
Discovery by interrogatories – Rules 1-11:

Interrogatory means to ask questions or to make inquiry closely or

thoroughly. The object and purpose of serving interrogatories is to
enable a party to require information from his opponent for the
purpose of maintaining his own case and for destroying the case of the
adversary. Answering the interrogatory might often shorten the trial
proceedings and save the time of the court and parties, besides saving
expenses for summoning witnesses, documents and the like.

This power must not be confined within narrow limits. It should be

used liberally whenever it can shorten the litigation and serve the
interests of justice. Nevertheless, the power is to be exercised with
great care and caution so that it is not abused by any party.
Interrogatories have to be confined to the facts, which are relevant to
the matters in question in the suit.

Every party to a suit is entitled to know the nature of his opponents

case, so that he may know beforehand the case he has to meet at the
hearing. But he is not entitled to know the facts which constitute,
exclusively, the evidence of his opponent’s case, the reason being that
it would enable an unscrupulous party to tamper with his opponents
witnesses, and to manufacture evidence in contradiction, and so shape
his case as to defeat justice.
The nature of a Plaintiff’s case is disclosed in his plaint. The nature of
a Defendant’s case is disclosed in his written statement. But a plaint
or a written statement may not sufficiently disclose the nature of a
party’s case, and to make good the deficiency, either party may
administer interrogatories in writing to the other through the court.

Interrogatories may also be administered by a party to his opponent to

obtain admissions from him to facilitate the proof of his own case.
The party to whom interrogatories are administered must answer them
in writing and on oath (r 8). This is called discovery by
interrogatories. The party to whom the interrogatories are
administered discovers or discloses by his affidavit, in answer to the
interrogatories, the nature of his case.

Sharda Dhir v. Ashok Kumar Makhija, AIR 2003 Del 288.

Where interrogatories were filed by the plaintiff and the order was
passed by the Joint Registrar disallowing the interrogatories on the
ground that defendant had filed some documents which were answer
to interrogatories, it was held that the order was liable to be set aside.
When the Joint Registrar was of the view that the interrogatories were
relevant he should have asked the defendant to answer them on
affidavit and thereafter he should have considered which of these the
defendant should be compelled to answer. If an object is raised about
irrelevancy or otherwise of the interrogatories the some may also be
decided at that stage.

Discovery of Documents – Rules 12 –14

Discovery is of two kinds, namely:

(1) discovery of interrogatories; and

(2) discovery of documents.

Types of Discoveries
There are various types of discovery:-

1). Interrogatories;

2). Requests for production of documents and inspection;

3). Requests for admissions;

4). Depositions;

5). Subpoenas duces tecum;

6). Physical and mental examinations.

Generally speaking, a party is entitled to inspection of all documents

which do not themselves constitute exclusively the other party’s
evidence of his case or title. The party wanting inspection must,
therefore, call upon the opposite party to produce the document. And
how can a party do this unless he knows what documents are in the
possession or power of the opposite party?

In other words, unless the party seeking discovery knows what are the
documents in the possession or custody of the opposite party which
would throw light upon the question in controversy, how is it possible
for him to ask for discovery of specific documents?
Rule 12 therefore enables a party without filing an affidavit to apply
to the Court for the purpose of compelling his opponent to disclose
the documents in the possession or power, relating to any matter in
question in the suit.
Objective:
The object of this procedure is two fold
1). Firstly, to secure, as far as possible, the disclosure on oath of all
material documents in possession or power of the opposite party
under the sanction of penalties attached to a false oath; and

2). Secondly, to put an end to what might otherwise lead to a

protracted enquiry as to the material documents actually in possession
or power of the opposite party.
Thus, this procedure:
1). Elicits admissions,
2). Obviates necessity of leading lengthy evidence; and
3). Expedites trial of suits and thereby assists Courts in
administration of justice.
Rules as to discovery:
1). Any party to a suit may apply to the court for an order directing
the other party to make discovery on oath of the documents which are
or were in possession, or power to any matter in question in the suit.
2) Normally, it is at the discretion of the court to grant or refuse
discovery of documents.
3) The court may exercise this power at any stage, either of its own
motion or on an application of any party and subject to such
conditions and limitations as may be prescribed by it.
4) The court may either refuse or adjourn such application if
satisfied that such discover is not necessary or not necessary at
that stage of the suit.
5) Discovery cannot be ordered by the court if it is of the option that
it is not necessary either for the fair disposal of the suit
Inspection of documents – Rules 15-19:
Rules 15 to 19 deal with inspection of documents. For the purpose of
inspection, documents may be divided into two classes:
1). documents referred to in the pleadings or affidavits of parties; and
2) other documents in the possession or power of the party but not
referred to in the pleadings of the parties.
Ram Sewak Vs. Hussain Kamil Kidwai, AIR 1964 SC 1249
As regards the first class of documents, a party to a suit is entitled to
inspection. And without intervention of the Court every party may
give notice in the prescribed form to the other party in whose
pleadings they are referred to, to produce such documents for his
inspection.

The party to whom such notice is given should, within ten days from
the receipt of such notice, give notice to the party claiming such
inspection, stating the time and place at which the documents may be
inspected and stating his objections, if any, to the production of any of
the documents. If he fails to do so, the Court may make an order of
inspection.

As regards the second class of documents, the party desiring the

inspection can only proceed by way of an application to the Court
along with an affidavit satisfying the Court that the document is
relevant to the case.

The primary object of Rules 15 to 19 of Order 11 is to place the

opposite party in the same position as if the documents had been fully
set out in his pleading or in the affidavit – Halsbury’s Laws of
England.

Production, Impounding And Return of Documents: Order 13

Nature and Scope: The plaintiff must produce in court with the point
the documents on which he is suing the defendant.
He must deliver a list of documents in support of his claim.

A summons to a defendant should contain a direction asking him to

produce all the documents in his possession or power upon which he
intends to rely in support his claim.

Production of Documents: Rule 1, Order 13

Rule 1 of Order 13 requires the parties or their pleaders to produce the

documentary evidence on or before the settlement of issues. The
object underlying this provision is to secure a fair trial of cases,
obviate the chances for the parties to adduce forged or manufactured
evidence and produce their documents before the court at the earliest
opportunity.

Rule 1(1) Of Order 13: Directs the parties or their pleaders to

produce all documentary evidence in original, on or before settlement
of issues.

Rule 1(2): Requires the court to receive those documents.

The object of the rule, however, was not to penalise the parties but
merely to prevent belated production of documents so that it might
not work injustice to the other side.

The court has power to receive any document at a later state if the
genuineness of a document is beyond doubt and it is relevant or
material to decide the real issue in controversy.

The discretion must be exercised judicially and considering the facts

and circumstances of each case. The rule must be liberally construed
so as to advance the cause of justice.

This provision, however, does not apply to documents:

 a). A produced for cross-examination of witnesses of the other
side
b). Handed over to a witness merely to refresh his memory.

Short Notes.
Q 12 . A Review Application Under Section 114 of C.P.C.

Section 114 states that-

Review- Subject as aforesaid, any person considering himself
aggrieved-
(a) by a decree or order from which an appeal is allowed by this Code,
but from which no appeal has been preferred.
(b) by a decree or order from which no appeal is allowed by this Code,
or
(c) by a decision on a reference from a Court of Small Causes, may apply
for a review of judgment to the Court which passed the decree or
made the order, and the Court may make such order thereon as it
thinks fit.
Section 114 basically empowers the court to review its order if the
condition precedent laid down therein are satisfied The substantive
provision of law does not prescribe any limitation on the power of the
court except those which are expressly provided under the Section 114
of the code in terms whereof it is empowered to make such order as it
thinks fit
In the case of Union of India v. Nareshkumar Badrikumar Jagad &
Ors. (2018), the Supreme Court held that any person who is affected
by the judgement can take the remedy of a review petition.
Grounds
Order 9, Rule 13 prescribes two grounds for setting aside an ex-parte
decree.
• That the summons was not duly served, or
 • That the defendant was prevented by sufficient cause from
appearing when the case was called on for hearing.
If either of these conditions is satisfied, the court must set aside the
decree and where these conditions are not satisfied the decree cannot
be set aside.

Conclusion
The appearance of the parties in court is essential. The parties can
present themselves or their legal representative in court to represent the
case. If both parties were not present, the court could dismiss the suit.
If the defendant ignores the court’s notices and fails to appear in court,
the court will send the summons to the defendant. The court will pass
an ex parte decree. Defendants have certain remedies against the ex
parte decree
Q. 13 What is meant by executing court? State its powers,
And Explain the different modes of executing a decree in Money
suit?

Introduction
Sections 36 to 74 and Order XXI of the Code of Civil Procedure 1908
lay down the provisions relating to the execution of decrees that are
orders passed by the Court.
Execution is a process by which the decrees and orders passed by the
Court are enforced. When a plaint files a suit against the defendant was
claiming some relief. Then, the Court may pass decree or order in
favour of the plaintiff providing some relief against the defendant.
If the defendant does not meet the liability the decree or order in favour
of the plaintiff remains unexecuted. Then, the plaintiff/decree holder
can approach the Court for execution of such decree/order.
Meaning of Executing Court (Sec.37): Primarily the Court which
passed the decree or order is the Executing Court
Section 37 defines the expression ‘Court which passed a decree’ while
sections 39 to 45 provide for the transfer for execution of a decree by
the Court which passed the decree to another Court, lay down
conditions for such transfer and also deal with powers of executing
Court. U/s. 37 the expression ‘Court which passed the decree’ is
explained.
The Court to which a decree has been sent for execution is called a
transferee Court/Executing Court.
Transferee Court is authorised to decide all objections as to the
executability of the decree.
It has no jurisdiction to question the validity of the decree.
It cannot question the jurisdiction of the Court, which passed the
decree. It has no power to correcting mistakes in the decree.

1). Who May apply for execution: Order 21 states the persons who
are entitled to apply for execution.
They are;
• The decree-holder (Order 21, Rule 10).
• If the decree has been transferred by the decree holder. to the
transferee (Order 21, Rule 16). This is to enable the transferee To
apply for execution of the decree.
• The interest in the decree must have been transferred by an
assignment in writing. Only the transferee of the decree can apply
for execution, not the transferee of the property.
• If the decree has been passed jointly in favour of more persons
than one, any one of such persons may apply for execution (Order
21, Rule 15).
• If the decree holder is dead, his legal representatives may apply
for execution.
Execution can be applied against the judgment-debtor or if he is dead,
against his legal representatives.
In the second case, according to Sec.50, the legal representatives shall
be liable only to the extent of the property, which they got from the
deceased.
2. Application for Execution (Order 21, Rule 11) : The application
for execution must be in strict compliance with Rule 11(2) to 14 of
Order 21. Otherwise, the court may reject the application
3. Contents of application: An application for execution shall contain
the following particulars -
i)the number of the suit;
ii) the name of the parties;
iii) the date of the decree;
iv) where any appeal has been preferred for the decree;
v) whether any and (if any) what, payment or other adjustment of the
matter, in controversy has been made between the parties subsequent
to the decree;
vi) whether any and (if any) what previous application have been made
for the execution of the decree, the dates of such applications and their
results;
vi) the amount with interest (if any) due upon the decree or other relief
granted thereby together with particulars of any cross decree, whether
passed before or after the date of the decree sought to be executed;
viii) the amount of costs (if any) awarded;
ix) the name of the person against whom execution of the decree is
sought; and
x) the mode in which the assistance of the court is required, whether
• by the delivery of any property specifically decreed,
• by the attachment, or by the attachment and sale, or by the sale
without attachment of any property,
• by the arrest and detention in prison of any person,
• by the appointment of a receiver,
• otherwise, as the nature of the relief granted may required.
The Court to which an application is made under sub-rule (2) may
require the applicant to produce a certified copy of the decree.
4. Notice: Notice shall be issued to the decree debtor in the following
cases:
3. Where the application for execution is made more than one year
after the date of the decree (Order 21, Rule 22).
 4. Where the execution is applied for against the legal representation
of the party to the decree (Section 44, A and Order 21, Rule 22,
5. Courts competent to execute: A decree may be executed by the
Court which passed it or by the Court to which it is sent to execution
(Section 38). No court other than the above mentioned Court can
execute a decree.
The Court to which a decree has been sent for execution is called a
transferee Court, Transferee Court is authorised to decide all objections
as to the executability of the decree. It has no jurisdiction to question
the validity of the decree. It cannot question the jurisdiction of the
Court, which passed the decree. It has no power to correcting mistakes
in the decree.
6). Powers of the Executing Court: Under Section 47 the executing
Court has been given. The Court may execute the decree in the
following ways:
• By delivery of any property specifically decreed.
• By attachment and sale or by sale without attachment.
• By arrest and detention in prison.
• By appointing a receiver.
• By any other manner as the Court thinks fit.
In the case of detention, the detention order shall not be made without
giving an opportunity to the judgment debtor or show cause why he
should not be detained.
The Court may order detention of the judgement debtor in the civil
prison the Court is satisfied that -
i) The judgment debtor is likely to abscond or has dishonestly
transferred his property with a view to delay or obstruct the execution,
(ii) Having means to pay but refuses to pay, or
iii) The decree amount is a sum held by the judgement debtor in a
fiduciary capacity (Section 51).
7. Decrees for the payment of money: Every decree for the payment
of money, may be executed -
(i) Personally, by detention in the civil prison of the judgment debtor
(ii) By attachment and sale of his property.
iii) By both (Order 21, Rule 30).
Section 47 provides that all questions arising between the parties or
between their representatives relating to the executing shall be
determined by the Court executing the decree. The proceedings under
this Section is treated as a suit.
8. Execution against the person of the Judgment Debtor:
Where a judgment debtor makes an application for execution of money
decree, for arrest or detention of the judgment debtor in civil person,
the court issues a notice to the judgment debtor, calling him to appear
before the court as a specified/particular date to show cause why he
should not be committed to the civil prison.
The court need not issue warrant for this purpose. Rule 40 provides that
the judgment debtor, after receiving the notice, may appear before the
Court and plead that he cannot pay the money due to poverty or other
sufficient reasons.
If the Court is satisfied, it can pass an order rejecting the application
for arrest.
If the decree debtor appears before the Court and fails to satisfy the
Court for non-payment of the amount. the Court shall arrest him.
Where a warrant is issued, it should direct the officer to arrest and bring
the judgment debtor immediately.
(i). Prohibition of arrest or detention of women: As per Section 56
of the Code of Civil Procedure, not withstanding anything in this part
the Court shall not order the arrest or detention in the civil prison of a
woman in execution of a decree for the payment of money.

(ii). Detention and release: According to Sec.58 of CPC;

1). Every person detained in the civil prison in execution of a decree
shall be so detained :-
a). Where the decree is for the payment of sum of money exceeding
Rs.2,000/-, for a period not exceeding Three months, and
b). where the decree is for the payment of a sum of money exceeding
two thousand rupees, but not exceeding Five thousand rupees, for a
period not exceeding 6 weeks.
Provided that he shall be released from such detention before the
expiration of the said period of detention:
i). on the amount mentioned in the warrant for the detention being paid
to the officer in charge of the civil prison; or,
ii). On the decree against him being otherwise fully satisfied; or
iii). On the request of the person on whose application he has been so
detained; or
iv). On the omission by the person, on whose application he has been
so detained to pay subsistence allowance:
Provided, also, that he shall not be released from such detention,
without the order of the Court.
2). A Judgment debtor released from detention under this section
shall not merely by reason of his release be discharged from his debt,
but he shall not be liable to be re-arrested under the decree in
execution of which he was detained in the civil prison.
Release on the Ground of illness: Sec.59 of the CPC provides that:
1). At any time after a warrant of the arrest of the judgment debtor has
been issued, the court may cancel it on the ground of his serious illness.
2). Where a judgment debtor has been arrested, the court may release
him, if, in its opinion, he is not in a fit state of health to be detained in
the civil prison.
3). Where a judgment debtor has been committed to the civil prion, he
may be released therefrom;
a) by the State government, on the ground of the existence of any
infectious or contagious disease; or
b) by committing court, or any court to which that court is subordinate,
on the ground of his suffering from any serious illness.
4). A judgment debtor released under this section, may be re-arrested,
but the period of his detention in the civil prison shall not the aggregate
exceed that is prescribed by Sec.58 of CPC.
Q. 14 Explain briefly the general principles of execution of decree.

Introduction

Order XXI of the CPC is the lengthiest order provides detailed

provisions for making an application for execution and the manner
that, how they are to be entertained, dealt with and decided.
Execution is the enforcement of a decree by a judicial process which
enables the Decree-Holder to realize the fruits of the decree passed by
the competent Court in his favour.
Execution is the last stage of any civil litigation. There are three
stages in litigation

• Institution of litigation,
• Adjudication of litigation,
• Implementation of litigation.
This implementation of litigation is also known as execution. Decree
means operation or conclusiveness of judgment.
A decree will be executed by the court which has passed the
judgment. In exceptional circumstances, the judgment will be
implemented by other court which is having competency in that
regard.
Execution enables the decree-holder to recover the fruits of the
judgment.
Meaning: The term “execution” has not been defined in the code. The
expression “execution” simply means the process for enforcing or
giving effect to the judgment of the court. The principles governing
execution of decree and orders are dealt with in Sections 36 to 74 and
Order 21 of the Civil Procedure Code.

Ghanshyam Das v. Anant Kumar Sinha

The Apex Court in dealing with provision of the code relating to
execution of decree and orders, observed in following words - “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 21 of the
code take care of different situations providing effective remedies not
only to Judgment-Debtors and Decree-Holders but also to claimant
objectors, as the case may be.”
Execution is the enforcement of a decree by a judicial process which
enables the decree-holder to realize the fruits of the decree and
judgment passed by the competent Court in his favour. The execution
is complete when the decree-holder gets money or other thing
awarded to him by the judgment, decree or order of the Court.

All proceedings in execution commence with the filing of an

application for execution. Such application should be made to the
Court who passed the decree or where the decree has been transferred
to another Court, to that Court.
Once an application for Execution of decree is received by the Court,
it will examine whether the application complies with the
requirements of Rules (11 to 14).
If they are complied with, the Court must admit and register the
application.
Application for Execution of Decree: All proceedings in execution
commence with the filing of an application for Execution.
The following persons may file an application for execution:
I. Decree-holder.
II. Legal Representatives of the decree-holder, if the decree-holder
is dead.
III. Representative of the decree-holder.
 IV. Any person claiming under the decree-holder.
V. Transferee of the decree-holder, if the following conditions are
satisfied namely,
a. The decree must have been transferred by an assignment in
writing or by operation of law
b. The application for execution must have been made to the court
which passed the decree; and
c. Notice and opportunity of hearing must have been given to the
transferor and the judgment-debtor in case of assignment by
transfer.
VI. One or more of the joint decree-holders, provided the
following conditions are satisfied namely,
Procedure on Receiving Application
1. Admission – Rule 17

Jiwani v. Rajmata Basantika Devi

Rule 17 prescribes the procedure to be followed on receiving an

application for execution of a decree. It casts a duty upon the Court
to ascertain whether the execution application complies with the
requirements of rules 11 to 14. If they are not complied with, the
Court shall allow the defect to be remedied then and there or within
a time fixed by it. If the defect is not remedied within that period,
the Court shall reject the application. The provisions of this Rule
are procedural and they should be interpreted liberally.
2. Hearing application Rules 105-106:

Rules 105 provides that the Court before which an application is

pending may fix a date for hearing of such application. When the
application is called out for hearing and the applicant is not
present, the Court may dismiss the application. On the other hand,
if the applicant is present and the opposite party is not present, the
 Court may hear the application ex parte and pass such order as it
thinks fit.

Rule 106 lays down that if the application is dismissed for default
or an ex parte order is passed under Rule 105, then the aggrieved
party may apply to the Court to set aside such order. The Court
shall set aside such order if sufficient cause if shown. An order
rejecting an application under Rule 106 (1) is appealable – Order
43 Rule 1(ja)
3. Notice of execution - Rule 22

Rule 22 provides for the issue of show-cause notices to persons

against whom execution is applied for in certain cases. As a
general rule, the law does not require any notice to be issued for
execution.

In the following cases, however, such notices must be issued:

I. Where an application is made two years after the date of the decree;
(or more than two years after the date of the last order made on any
previous application for execution) or
II. Where an application is made against the legal representative of the
Judgment- Debtor; or
III. Where an application is made for the execution of a decree passed
by a Court of reciprocating territory – Sec.44-A;
IV. Where an application is made against the assignee or receiver of
insolvent judgment- debtor;
or
V. Where the decree is for payment of money and the execution is
sought for arrest and detention of judgment-debtor – Or.21, R.37;
VI. Where an application is made against a surety - Sec.145; or
VII. Where
an application is made by the transferee or assignee of the
Decree-Holder – Or.24 R.16.

Erava v. Sidramappa Pasare

The underlying object of giving notice to Judgment-Debtor is not only

to afford him an opportunity to put forward objections, if any, against
the maintainability of the execution application but also to prevent his
being taken by surprise and to enable him to satisfy the decree before
execution is issued against him.
Stay of Execution: Provisions for stay of execution of a decree are
made in Rule 26 of Order 21.

R.Komala v. Mohd. Iqbal, AIR 1999 Kant

Rule 26 applies to the court to which a decree has been transferred for
execution and not to the court which passed the decree and sent it for
execution. It empowers the transferee court, upon a sufficient cause
shown, to stay the execution of the decree so transferred to it, for
execution for a
reasonable time and for the purposes set out in sub-r (1).

Rule 26(1) only relates to granting of limited stay of execution by

executing court for only a specific purpose as to enable the judgment-
debtor to apply for a stay order from the Appellate Court or from the
trial court which passed the decree for suitable orders.

Saradakripa v. Comilla Union Bank Ltd

The Calcutta High Court relied on Secs.37 and 42 and held that the
expression the court which passed the decree in Sec.37 would include
the court to which the decree is sent for execution as once the decree
is transferred for execution the transferor court ceases to have
jurisdiction and that, therefore, the transferee court can pass an
absolute order for stay of execution under Rule 29 of this Order.
Karnataka Patrika (P.) Ltd. v. Syndicate Bank

In execution of a money decree, the Supreme Court granted stay of

execution on the condition of the judgment-debtor depositing a certain
sum in Court. When the deposit as directed was made, the decree-
holder took the stand that the entire decretal amount shall stand
satisfied if the amount deposited is allowed to be withdrawn by the
decree-holder. In the circumstances, the Supreme Court allowed the
appeal in part and modified the decree of the trial Court to the extent
that the decree would stand satisfied on withdrawal of the deposited
amount.
Court which may execute the decree:

Section 38 of the Code specifies that, a decree may be executed either

by the Court who passed it or by the Court to which it is sent for
execution.
Section 37 defines the expression ‘Court which passed a decree’ while
sections 39 to 45 provide for the transfer for execution of a decree by
the Court which passed the decree to another Court, lay down
conditions for such transfer and also deal with powers of executing
Court. U/s. 37 the expression ‘Court which passed the decree’ is
explained. Primarily the Court which passed the decree or order is the
executing Court.

If order or decree is appealed against and the appellate Court passes a

decree or order, even then the original Court which passed the decree
or order continues to be treated as Court which passed decree. The
Court which has passed the decree or order ceased to exist or ceased
to have jurisdiction to execute the decree already passed, then the
Court which will be having a jurisdiction upon that subject matter,
when application of execution is made will be the competent Court to
execute the decree.

Merely because the jurisdiction of the Court which has passed the
decree is transfer to another Court due to transfer of territorial area,
the jurisdiction to execute the decree passed by such a Court is not
ceased.

However, the Court to whom the transfer of territorial area is made,

will also have a jurisdiction to conduct the execution of decree or
order - Sec.37. Sec. 38 contemplates that a decree may be executed
either by the Court which passed it, or by the Court which it is sent
for execution. However the execution on judgment debtor is criteria
of executing Court of territorial jurisdiction.

Q:15 Explain the different modes of execution of decrees.

Modes of Executing Decree:

The Code lays down the following modes for execution of different
types of decrees:

The different modes of execution of a decree are provided in section

51 as under:
a. by delivery of any property specifically decreed
b. by attachment and sale or by sale without
c. by arrest and detention in prison;
d. by appointing a receiver; or
e. in such other manner as the nature of the relief granted may require.
1. Delivery of Property:
a. Moveable Property - Section 51 (a) Rule 31

Where the decree is for any specific movable property, it may be

executed
I. by seizure and delivery of the property; or
II. by detention of the Judgment-Debtor; or
III. by the attachment and sale of his property; or iv) by attachment and
detention both – Rule 31. The words specific movable (property) do
not include money and therefore, a decree for money cannot be
executed under Rule 31.
Pudmanund Singh v. Chundi Dat

Again, for the application of this Rule the property must be in the
possession of the Judgment- Debtor. Where the property is in the
possession of a third-party, the provisions of this Rule do not apply
and the property cannot be attached.
b. Immovable Property - Rules 35-36

Rules 35 and 36 provide the mode of executing decrees for

possession of immovable property to the Decree-Holder. These
rules correspond to rules 95 and 96 which lay down the procedure
for delivery of possession to the auction-purchaser who has
purchased the property in an auction- sale.

Where the decree is for immovable property in the possession of

the Judgment-Debtor or in the possession of the person bound by
the decree, it can be executed by removing the Judgment- Debtor
or any person bound by the decree and by delivering possession
thereof to the Decree- Holder.

Where it is in the possession of a tenant or other person entitled to

occupy the same only symbolical possession can be delivered, and
that is to be done under Rule 36. Symbolical possession can in
such cases operate as actual possession against the judgment-
debtor.”
2. Attachment and Sale of Property: Section 51(b)

Sec.51(b) empowers the Court to order execution of a decree by

attachment and sale or by sale without attachment of any property.
 The Court is competent to attach the property if it is situated within
the local limits of the jurisdiction of the Court.
It is immaterial that the place of business of the Judgment-Debtor
is outside the jurisdiction of the Court The words attachment and
sale in clause (b) of Sec.51 are to be read disjunctively.
Hence, the attachment of the property is not a condition precedent.

Sale of the property without an attachment is not void or without

jurisdiction and does not vitiate such sale. It is merely an
irregularity. An order of attachment takes effect from the moment
it is brought to the notice of the Court Rule 54 provides for the
attachment of immovable property and the procedure for the
proclamation of such attachment. The object of Rule 54 is to
inform the Judgment-Debtor about the attachment so that he may
not transfer or create encumbrance over the property thereafter.
3. Arrest and Detention: Section 51(b)

It is for the Decree-Holder to decide in which of the several modes

he will execute his decree. One of such modes of executing a
decree is arrest and detention in civil prison of the Judgment-
Debtor. However, clause (c) should be read subject to the proviso
to Sec.51.

The proviso lays down that where the decree is for payment of
money, execution by detention in civil prison should not be
ordered unless, after giving the Judgment-Debtor an opportunity of
showing cause why he should not be so detained, the Court for
reasons to be recorded in writing is satisfied:
i. That the Judgment-Debtor with the object of obstructing or delaying
the execution of the decree
a. is likely to abscond or leave the local limits of the jurisdiction of
the Court; or
b. has, after the institution of the suit in which the decree was passed,
dishonestly transferred, concealed or removed any part of his
property, or committed any other act of bad faith in relation to his
property; or
ii. That the Judgment-Debtor has, or has had since the date of the
decree, the means to pay the amount of the decree or some
substantial part thereof and refuses or neglects or has refused or
neglected to pay the same; or
iii. That the decree is for a sum which the Judgment-Debtor was bound
in a fiduciary capacity to account for – Proviso to Sec.51.
These provisions are mandatory in nature and must be strictly
complied with. They are not punitive in character.
The object of detention of a Judgment-Debtor in a civil prison is
twofold. On the one hand, it enables the Decree-Holder to realise the
fruits of the decree passed in his favour; while on the other hand, it
protects the Judgment-Debtor who is not in a position to pay the dues
for reasons beyond his control or is unable to pay.
Therefore, mere failure to pay the amount does not justify arrest and
detention of the Judgment-Debtor inasmuch as he cannot be held to
have neglected to pay the amount to the Decree-Holder.

4. Appointment of Receiver - Section 51(d)

One of the modes of execution of a decree is the appointment of a
receiver. Execution by appointment of a receiver is known as
equitable execution and is entirely at the discretion of the Court.
It cannot be claimed as a matter of right. It is thus an exception to the
general Rule stated above that it is for the Decree-Holder to choose
the mode of execution and that the Court has no power to refuse the
mode chosen by him.

Bhagwati Bai v. Padma Bai

The appointment of a receiver in execution proceedings is considered
to be an exceptional remedy and a very strong case must be made out
in support of it.

Nawab Bahadu v. Karnani Industrial Bank Ltd.

The Decree-Holder before resorting to this mode must show that there
is no effective remedy for obtaining relief by the usual statutory
modes of execution
Toolsa Golal v. John Antone

The Court also must also be satisfied that the appointment of a

receiver is likely to benefit both the Decree-Holder and the Judgment-
Debtor rather than a sale of the attached property

Hemendra Nath Roy V. Prokash Chandra, AIR

It has also to be satisfied that the decree is likely to be realised within

a reasonable time from the attached properties so that the Judgment-
Debtor may not be burdened with property while he is deprived of the
enjoyment of it Again this mode of execution cannot be resorted to in
order to circumvent the statutory provisions.

Toolsa Golal v. John Antone

Thus the Decree-Holder cannot be permitted to pray for the

appointment of a receiver in respect of property which has been
expressly excluded from attachment by the statute
Q. 16 Define the term judgement and decree and state the
difference between the judgement and decree?

Introduction:
The word ‘judgement’ is derived after combining two words namely,
judge and statement. It can also be termed as an act of judging. It is the
conclusion or the result of judging. On the other hand, the term decree
can be termed as the judicial decision in a litigated cause rendered by a
Court of equity. It is the determination of a cause in a Court of admiralty
or Court of probate. The Court, after the case has been heard, shall
pronounce judgement, and on such judgement a decree shall follow.
Section 33 of the Code of Civil Procedure describes the term
‘Judgement and Decree’ together.

Judgement

The term Judgement is defined in Section 2(9) of the Code of Civil

Procedure, 1908. A judgement contains facts of the case, the issues
involved, the evidence brought by the parties, finding on issues (based
on evidence and arguments). Every judgement shall include a summary
of the pleadings, issues, finding on each issue, ratio decidendi and the
relief granted by the court.

Contents of the judgement

According to Rule 4 Order XX of Code of Civil Procedure, 1908:

• Judgements of a Court of Small Causes are satisfactory if they

contain the points for determination and the decision thereon.
• Judgments of other Courts shall contain:

1. Summary of the pleadings which is a concise statement of the

case;
2. Issues which are the points for determination;
 3. Findings on each issue and the decision thereon;
4. Ratio decidendi (reasons for such a decision); and
5. The remedy, which is the relief granted.

Decree
The term decree is defined in Section 2(2) of Code of Civil Procedure,
1908. A decree always follows judgement and is based upon a
judgement. It is divided into five types unlike judgement which is final
in itself. A decree may be final or preliminary. It is a formal declaration
or adjudication and is conclusive in nature.

A decree is of three kinds namely, preliminary decree, final decree and

partly preliminary & partly final. A decree may be delivered with an
order. The decree contains the outcome of the suit and conclusively
determines the rights of the parties with regard to the issues in dispute
in the suit. After passing the decree, the suit stands disposed of since
the rights of the parties are finally determined by the court.

Deemed Decree

A decree shall be deemed to include the rejection of a plaint and any

question within Section 144 of Code of Civil Procedure,1908 but shall
not include:

• any such sentence(adjudication) from which it appears that an

appeal lies as an appeal from an order, or
• any such order of discharge(dismissal) of default.

Difference between Judgement and Decree

Judgement Decree
1. A judgement is based upon facts. 1. A decree is based upon
judgement.
2. Judgment is made prior to decree. 2. Decree always follows a
judgement.
3. A judgement contains facts of the 3. A decree contains the outcome
case, the issues involved, the of the suit and conclusively
evidence brought by the parties, determines the rights of the
finding on issues(based on evidence parties with regard to the
and arguments). issues in dispute in the suit.
4. The definition of the word 4. The definition of the word
judgement given in section 2(9) of decree given in section 2(2) of
the Code of Civil Procedure, 1908 Code of Civil Procedure, 1908
does not include the word ‘formal’. includes the word ‘formal’.
5. Section 2(9) of the Code of Civil 5. Section 2(2) of the Code of
Procedure, 1908 describes the term Civil Procedure, 1908
judgement. describes the term decree.
6. Judgement has no types. 6. A decree is divided into three
types.
7. Judgement may result in a 7. The decree may be a
preliminary decree or a final decree preliminary or final or partly
or an order by itself, the judgement preliminary and partly final.
is always final.
8. 8. After passing the decree, the
Judgement leads to the final suit stands disposed of since
disposal of the suit after the decree the rights of the parties are
is drawn up. finally determined by the
court.
 BASIS FOR
COMPARISO JUDGEMENT DECRE
N E
Meaning Judgement is a statement A decree is something
given by the judge which which declares the
adjudicates all the issues consequences of the suit
concerning the lawsuit and and specifically
specifies the rights and determines the rights and
liabilities of the parties. liabilities of the parties.
Defined in Section 2(9) of the Code of Section 2(2) of the Code
Civil Procedure, 1908. of Civil Procedure,
1908.
Nature Final Preliminary, final or partly
preliminary and partly
final.
Part of the suit Concluding part Operating part

Passed in Both civil and criminal cases Civil cases only

Appealable No Yes

Sequence First Second

Formal Desirable Necessary

Expression

Execution Not capable of execution Capable of execution

 3. Appealability Usually, a decree is appealable Most orders are not
until and unless it is explicitly appealable, except
prohibited by law. those specified in
Section 104 and
Order 43, Rule 1 of the
CPC.
4. Institution A decree is passed in a suit An order is passed in a
instituted upon presenting a plaint. suit that may be
instituted upon the
presentation of either a
plaint, an application,
or a petition.
5. Ascertainment A decree ascertains the substantive An order ascertains the
of parties’ rights and duties of the parties. procedural rights of
rights the parties.

6. Number of Usually, only one decree is passed One or more orders

decrees/ in a suit. may be passed in a
orders suit.

SHORT NOTES

1) Decree

Meaning of “Decree”

Section 2(2) of the CPC defines a “decree” as 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 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-

1. Any adjudication from which an appeal lies as an appeal from

an order, or
 2. Any order of dismissal for default.

Furthermore, Section 2(2) of the CPC goes on to provide a short

explanation of the term “decree”. It states that 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.

Types of decrees
Generally, there are 3 classes of decrees, as explained below:

a)Final decree
Section 2(2) states that a decree may be final. A final decree is one
which wholly disposes of a suit and finally settles all disputed matters
in the suit. It is issued when all the hearings of a suit are complete and
there is nothing more to decide upon.
As held by the Apex Court in the case of Shankar Balwant Lokhande
(deceased) v. Chandrakant Shankar Lokhande (1995), a decree is
said to be final in the following scenarios:

• When the decree is not appealed within the stipulated time;

• When the decree is passed by the Apex Court, that is, the
Supreme Court, and When the court regards the decree as
having been completely disposed of. The following are
characteristics of a final decree:

• It is executable;
• It may be passed without any preliminary decree;
• It conclusively settles the disputed matter, and
• The Court may pass more than one final decree.
b)Preliminary decree

Section 2(2) states that a decree may be preliminary. The said Section
states that a decree is preliminary when further proceedings have to be
taken before the suit can be completely disposed of.

It is final when such an adjudication completely disposes of the suit. So

a preliminary decree is passed when there is still something that the
court needs to decide upon before conclusively determining the rights
and duties of the parties. There may be more than one preliminary
decree in a suit.

As held by the Supreme Court in the case of Mool Chand and Ors v.
Dy. Director Consolidation (1995), the court passes a preliminary
decree when, though the rights of the parties are figured out, a few other
matters are still pending to be decided upon.

Under the CPC, a preliminary decree may be passed in the following

types of suits:

• Administration suits (Order Rule 13)

• Suits for possession and Mesne profit (Order 20 Rule 12)
• Partnership dissolution suits (Order 20 Rule 15)
• Suit for partition and separate possession (Order 20 Rule18)
• Suit regarding the sale of mortgaged property (Order 34 Rule
4)
• Suits regarding accounts between the principal and agent
(Order 20 Rule 16)
• Suits regarding foreclosure of a mortgage (Order 34 Rule 2)
• Mortgage redemption suits (Order 34 Rule 7)
c)Partly preliminary and partly final decree

Sometimes, depending upon the nature of the suit, the court may pass
a partly preliminary and partly final decree. Such a decree may contain
parts that are final, while the majority of the decree may still be
preliminary.

For instance, in a suit relating to inheritance, the court may pass a partly
preliminary and partly final decree, in which the determination of
whether or not a particular party is entitled to receive a share in the
property may be final in nature; whereas the determination of who will
receive what share in the property is a part of the preliminary decree.

2) Admission
Meaning of Admission: CPC doesn't provide an admission definition.
According to Section 17 of the Indian Evidence Act, an admission is a
statement that suggests an inference to a relevant fact or fact at
question, whether it is stated orally, in writing, or electronically.
It is important to remember that the Indian Evidence Act's Section 23
outlines the situations in which an admission will not be relevant in
civil trials. According to the Section, an admission will not be
significant in civil actions if it is based on an express condition that no
proof of it be provided or if it results from circumstances that allow the
court to infer that the parties had agreed not to produce evidence of it.

Important provisions under order 12: The CPC's Order 12 addresses

admissions. According to Rule 1, a party may, in whole or in part, admit
the opposing party's case by providing a notification. The disclosure
must be made in writing.
A notice to admit or refuse to admit any document may be given to the
opposite party in accordance with Rule 2. Within seven days of
receiving notification, the opposing party must admit the document.
The burden of footing the cost of proving the document will be on the
party who refuses or neglects to admit the party on whom the
notification is given.

The court has the authority under Order 12 Rule 3A to request any party
to admit a document and to record that party's admission or denial.
The caveat to Rule 4 makes it clear that admissions made as a result of
a notice under one process cannot be utilised as evidence against the
party making the admission in any other proceedings pertaining to
another matter.
However, the costs associated with issuing a notice to admit such
papers that are not required will be covered by the party issuing the
notice.
Any oral or written admission made by the parties at any stage of the
proceedings may be subject to review by the Courts under Order 12
Rule 6. Such an admission may be stated verbally or in writing in the
pleading.

Case Law:
Karan Kapoor v. Madhuri Kumar (2022)
In this case, according to the Apex Court, the power under Order 12
Rule 6 should only be used in cases when the admission of documents
or facts is unmistakable, categorical, and clear. The legislative purpose
behind granting the Court this level of discretion was to allow the court
to issue a ruling or decree based on admissions made by one party and
acknowledged by the opposing party when the court was satisfied with
the nature of the admission. The Court concluded that a complete trial
was necessary to determine the opponent's chosen defence in the
current instance. Trial was required to determine whether or not the
defence was credible, and the parties had to be given the chance to
present their own evidence. The verdict of the Trial Court was
susceptible to being overturned since the confessions made in this case
were neither categorical nor explicit.
3). Affidavit

Introduction

Order 19 deals with the affidavits. An affidavit is a sworn

statement of the facts by a person who is familiar with the facts
and circumstances have taken place. The person who makes it and
signs it is known as Deponent. In the affidavit, the contents are
true and correct to the knowledge of the person who signed it and
he has nothing concealed material therefrom.
It is duly attested by the Notary or Oath commissioner appointed by the
court of law. The duty of the notary and oath commissioner is to
ensure that the signature of the deponent is not forged. The affidavit
must be paragraphed and numbered as per the provision of the code.
Meaning of Affidavit:-

Though the expression “affidavit” has not been defined in the

code, it has been commonly understood to mean “a sworn
statement in writing made especially under oath or on
affirmation before an authorized officer or Magistrate.”

The essentials attributes of an affidavit are following:

It must be a declaration made by a person,
a) It must relate to facts and not inferences from the same,
b) It must be in the first person,
c) It must be in writing, and
d) It must be a sworn statement made or affirmed before a
Magistrate or any other authorized officer.
 Contents of the Affidavit: -
An affidavit should be confined to such facts as the deponent is
able to prove to his personal knowledge except on
interlocutory applications on which statements of his belief
may be admitted. (R. 3)
Important points about Affidavits:-
I. A Court may order that any fact may be proved by affidavit.
Ordinarily, a fact has to be proved by oral evidence.

II. The definition of the affidavit is not defined under S. 3 of the

Evidence Act. It can be used as evidence only if, for sufficient
reason, the court invokes the provisions of Order 19 of the code.

III. Rule 1 is a sort exception to this rule and empowers the court
to make an order that any particular fact may be proved by
affidavit, subject, however, to the right of the opposite party to
have the deponent produced for cross-examination.

IV. An affidavit should be confined to such facts as the deponent

is able to prove to his personal knowledge except on interlocutory
applications on which statements of his belief may be admitted.
(R. 3)

V. Unless affidavits are properly verified and are in conformity

with the rules, they will be rejected by the court. But, instead of
rejecting an affidavit, a court may give an opportunity to a party
to file a proper affidavit.

VI. Ordinarily interlocutory applications such as interim

injunctions, the appointment of the receiver, etc, can be decided
on the basis of an affidavit.
The Supreme court in case of Amar Singh v. Union of India and
others, has given instructions to the courts registry to carefully review
all affidavits, petitions, and applications and reject any that do not
follow Order XI the Supreme Court Rules and Order XIX of the Code
of Civil Procedure. In this ruling, the Supreme Court emphasised the
significance of affidavits and analysed numerous judicial rulings on the
subject.
4) write a short note on Adjournment

Order 17
A putting off or deferring of procedures; a closure or rejection of
further business by a Court, the governing body, or open
authority—either briefly or for all time.

In the event that an adjournment is conclusive, it is said to be sine

kick the bucket,
“without day” or without a period fixed to continue the work. A
dismissal is not quite the same as a break, which is just a brief
break in procedures.

In assemblies, adjournment formally denotes the finish of an ordinary

session. Both state
and government administrators vote to decide when to suspend.
The careful planning relies on numerous elements, for example,
outstanding burden, political decision plans, and the degree of
comity among officials. Since a session can end with incomplete
authoritative business, dismissal is generally utilized as methods
for political influence in verifying or postponing activity on
significant issues.

What is the purpose of Adjournment?

There can be several reasons for granting Adjournment. In

some cases it becomes necessary to grant Adjournment to
ensure fair and equal justice to the parties involved. Some of
the reasons can be as follows:
 • When either of the party is not ready or requires more
time to prepare, then that party can request for
adjournment, that is, for postponing to a future date.
• To permit police to have more conversations with the

person in question, their kids or other influenced

individuals or to give more data about the matter under
the watchful eye of the court.
• When any party requires legal representation or any other

service that is not immediately available.

• When the evidences presented are not sufficient to decide

the matter. When at the time of the proceedings, any of

the witness in not present.

There are cases where it is better to adjourn the case rather than
deciding it in favour of any party. This is because such
adjournment can lead to better justice as by giving time, more
in-depth analysis can take place and more facts and evidences
can come into place.
 5) Kinds of Issue

Definition of issues

According to the dictionary meaning, "issue" means a point in question;

an important subject of debate, disagreement, discussion, argument or
litigation. (2) Issues mean a single material point of fact or law in
litigation that is affirmed by one party and denied by the other party to
the suit and that subject of the final determination of the proceedings.

In Howell v. Dering, the court held that, an issue is that which, if

decided in favour of plaintiff, will in it give a right to relief; and if
decided in favour of the defendant, will in itself be a defence.
Issues arise when a material proposition of fact or law is affirmed by
one party and denied by the other party to the suit.

What are the material propositions?

According to Rule 1 (2), material propositions are those propositions
of fact or law which a plaintiff must allege in order to show a right to
sue or a defendant must allege in order to constitute his defense. Each
material proposition affirmed by one party and denied by the other shall
form the subject - matter of a distinct issue. (5)(6)

Kinds of issues:
As per the Order 14 Rule 1(4) of the C.P.C. issues are of two kinds:

i) Issues of act
ii). Issues of Law.

J. K. Iron and Steel Co. Ltd. V. Mazdoor Union, AIR 1956 SC 231
(235)
It was held that, Issues, however, may be mixed issues of fact and law.
Rule 2(1) OF Order 14 provides that where issues both of law and fact
arise in the same suit, notwithstanding that a case may be disposed of
on a preliminary issue, the court should pronounce judgment on all
issues. But if the court is of the opinion that the case or any part thereof
may be disposed of on an issue of law only, it may try that issue first,
if that issue relates to:

i) The jurisdiction of the court; or

ii) A bar to the suit created by any law for the time
being in force,
Mathura Prasad Bajoo Jaiswal v. Dossibai N.B. Jeejeebhoy, (1970)
1 SCC 613 It was held that For that purpose, the court may, if it thinks
fit, postpone the settlement of the other issues until the issues of law
have been decided.
Q 17 . Who can apply for setting aside the sale in execution of a
decree? When can sale be set aside? (Sec. 65-67, Order XXI, Rules
64-73)
Introduction
When the defendant fails to meet the liability, the decree or order in
favour of the Plaintiff remains unexecuted . Then the Plaintiff/decree
holder can approach the court for execution of such decree/order. After
the attachment of the judgment debtor’s property is made, the decree
holder may apply to the court to sell the property and pay the proceeds.
The court may order for sale of the property. In certain cases, the court
may order the sale of the property even without attachment of the said
property. According to Rule 82 of Order 21, sale of immovable
property in execution of decree may be ordered by any court other than
a court of small cases.
Sections 64 to 73 and Rules 64 to 73 of Order 21 of CPC lay down the
provisions relating to the sale of properties in execution of decrees.
Meaning of Attachment.
The Attachment is used in law referring to the action of seizing
property on predicting a favourable judgment for a plaintiff who claims
to have lent money, mesne profits etc., to the defendant.
Attachment is an initial procedure where the property is captured before
a final judgment is delivered

Attachments and Sale of Property: (Section 51(b) Sections 60 to 64

and Rules 41 to 57 of Order XXI)
The Court is empowered to order execution of a decree by attachment
and sale or by sale without attachment of any property and the sale of
property without an attachment is merely an irregularity and such sale
is not void or without jurisdiction and does not vitiate the sale.
Who may apply for execution: Order 21 states the persons who
entitled to apply for execution. They are;

1). The Decree holder (Order 21, Rule 10)

2). If the decree has been transferred by the decree holder to the
transferee, (Rule 16), only the transferee of the decree can apply for
execution, and not the transferee of the property.

3. If the decree has been passed jointly in favour of more persons than
one, of such persons may apply for execution (Rule 15)

4. If the decree holder dead, his legal representatives

Mode of Sale of the Property:

The Sale of the property can be executed in the following ways:

1). Proclamation of Sale
2). Time of Sale
3). Adjournment of Sale
4). Stoppage of Sale
5) Restrictions to bid
6) Default payment
7) Setting aside Sale
8) Conditions for Setting aside Sale
9) Confirmation of sale or sale when to become absolute or be set aside
10 Garnishee order.

1). Proclamation of Sale: (Rules 66 and 67, Order 21)

The word “Proclamation” literally means “announcement”. When the
court orders sale of certain property, it shall publish written
proclamation of the sale in public auction.
Contents of Proclamation
The proclamation shall contain the following particulars:
a). Time and Place of sale.
b) property or part thereof to be sold.
c) revenue, if any, assessed upon the property
d) encumbrance, if any, to which the property is liable
e) amount to be received.
f) Such other particulars which the purchaser to know
Every proclamation shall be published in the manner provided under
Rule 54(2) of Order 21, i.e., it shall be proclaimed at some place
adjacent to the property.
2). Time of Sale (Rule 68) : To speedy and natural decay or the
expenses of keeping it in custody is likely to exceed the value, no sale
shall without the consent of the Judgment debtor, take place until after
the expiration of atleast 15 days in cases of immovable property and of
at least 7days in case of movable property, calculated from the date of
which the copy of the proclamation has been affixed on the court-house
of the judge ordering the sale.
3). Adjournment of Sale (Rule 69): The court may at its discretion ,
adjourn any sale toa specified day and hour. But if such sale is
adjourned for more than 30 days, a fresh proclamation should be made
unless the judgment debtor waives it.
4). Stoppage by Sale (Rule 69): Every sale shall be stopped if, before
the property is knocked down, the debt and costs are tendered, to the
officer conducting the sale, or paid into the court
5). Restrictions to bid (Rule 72 & 73): The Rule 72 of order 21 of the
CPC provides that:
1. No holder of a decree in execution of which the property is sold shall,
without the express permission of the court, bid for or purchase the
property.
2. Where a decree holder purchases with such permission, the purchase
money and the amount due on the decree may, subject to the provisions
of Sec.73, be set off against one another, and the court executing the
decree shall enter up satisfaction of the decree in whole or in part
accordingly.
3. Where a decree holder purchases by himself or through another
person, without such permission, the Court may, if it think fit, on the
application of the Judgment Debtor, or any other person whose
interests are affected by the sale, by order set aside the sale; and the
costs of such application and order, and any deficiency of price which
may happen on the re-sale and all expenses attending it, shall be paid
by the decree holder.
6) Default Payment: (Rule:86): The bidder shall deposit 25% of the
purchaser money. The balance should be paid within 15 days from the
date of sale. If not initial deposit shall be forfeited and the Court shall
order re-sale.
7) Setting aside Sale (Order XXI, Rule 89 to 92): Order 21 Rule 89
to 92 of CPC provide for setting aside of sale in execution of a decree.
The main object of this provision is to protect the Judgment debtor from
deprivation of his property.
According to Rule 89, of Order 21 of CPC, any person claiming/having
interest in the property may apply to the court within the period of
limitation (i.e., 30 days as per Art.127 of the Limitation Act,1963) for
setting aside the Sale.
Who may apply for setting aside the sale?
The application under Rule 89 may be filed by any one of the following
persons.
 a) A Judgment debtor
b) A co-sharer in the property
c) A member of a Joint Hindu Family
d) A reversioner
e) An attaching creditor
f) A beneficial owner
g) A lessee
h) A mortgagee
i) A person in possession of the property
j) A benamidar, transferee, etc.
8). Conditions for Setting aside the Sale: The person filling an
application to set aside the sale must fulfil the following condition:
A) a) the applicant must deposit in the court for payment to the auction
purchaser Five percent of the purchase money; and
b) he must also deposit the amount specified in the proclamation of
sale, less any amount received by the decree holder since the date of
proclamation of sale for payment to the decree holder.
B. Application to set-aside sale on the ground of irregularity or
Fraud (Rule 90): The Second method of setting aside the sale is by
pleading irregularity of fraud in conducting the sale. This is provided
under Rule 90.
The Grounds available under Rule 90 are:
1. A material irregularity, or
2. Fraud in publishing or conducting the sale.
9). Confirmation of Sale or Sale when to become absolute or be set
aside (Rule 92): If no application is filed by any party to set aside the
sale under Rule 89,90,91 or application filed under the above rules are
dismissed, the sale becomes absolute.
The Court shall pass an order confirming the Sale. The sale shall be
made absolute only after 60 days of the sale.
When the sale has become, a sale certificate will be issued to the
purchaser.
10). Garnishee Order (Order XXI, Rules 46A to 46 I ):
( Also refer for Short Notes also)

As stated above. A decree can be executed by:

a) Arrest and detention
b) Attachment and sale.
In addition to these two methods, there are some other methods and
prominent among them is Garnishee Order or Garnishee proceedings
or Attachment of a debt.
Order XXI, Rules 46A to 46 I, of CPC speak about Garnishee Order .
It is one of the modes of executing a decree.
Meaning of Garnishee order:
The term “Garnishee” means “ debtor of judgment debtor”.
A judgment debtor is a debtor who is liable to pay/meet the liability
against the judgment /decree.
A Garnishee order, is an order is an order of the court, issuing under
Order 21, Rule 46 of CPC, directing the Garnishee (i.e., judgment
debtor’s debtor) to pay or deliver in Court, the amount due from him to
the judgment debtor.
For instance, the judgment debtor has some credit balance in the bank
account, the court by issuing garnishee, may direct the Banker to stop
payment to payment to a particular customer, whose name mentioned
in the garnishee order as the judgment debtor. In other words, the court
issuing garnishee order attaches the bank balance of the judgment
debtor so that the judgment is not allowed to draw his amount from the
bank.
The creditor at whose request, the order is issued is called “Judgment
Creditor”, the customer is called “Judgment Debtor”, and the Bank
(debtor of the judgment debtor) is called Garnishee.
The main object of Garnishee order is to protect/safeguard the interest
of the Judgment Creditor.
Notice (Rule- 46A): According to Rule 46.A, the court shall issue
notice to the garnishee before a garnishee order is passed against him.
If the notice is not issued, the order is not valid i.e., null and void.
Garnishee order can be passed only if the Garnishee is residing within
the jurisdiction of the court. If the Garnishee cannot appear before the
court or deposit the money, the court may order the Garnishee to
comply with the notice and execution may be issued as thogh the decree
was passed against him.
Example:
1). “A” has given his house for rent to “B” for a rent of Rs.1000/- per
month. ‘A’ has barrowed Rs.15,000/- from ‘C’. ‘C’ got a decree against
‘A’ for the above debt. Now ‘C’ can file a petition before the court
directing ‘B’ to pay the rent before the Court. ‘B’ is the Garnishee and
the order set to ‘B’ is the Garnishee Order.
2. ‘A’ has given Rs.10000/- to ‘B’. ‘B’ has given Rs. 10,000/- to ‘C’ in
another occasion. ‘B’ did not pay any amount to ‘A’. ‘A’ obtained a
decree against ‘B’, which is pending before the court for recovery of
money of Rs.10,000/- . Meanwhile ‘A’ comes know that ‘C’ has to pay
Rs.10,000/-, to ‘B’. ‘A’ applies to the Court for the recovery of his debt
from ‘C’ and the court decrees the same. Here ‘A’ is a judgment
creditor. ‘B’ is the judgment debtor, ‘C’ is the judgment debtor’s
debtor, and ‘C’ is known as Garnishee.
 UNIT -4

Q. 1 Under what circumstances a Reference can be made to the

High Court (sec 113) (order 46, Rule 1 to 7).

Introduction
Se.113, Order 46 of the CPC lay down provisions relating to
Reference. The Word Reference means, referring a case to the higher
court (High Cour) seeking its opinion in the matters relating to
questions of doubt.
References can be made only when an important question of law
arises in a suit.
When a reference is made to the High Court, it can consider only that
point which is referred for its decision. The High court cannot decide
the whole case.
Grounds of Reference
Only the High Court has the power of entertaining a reference. A
reference can be by any ordinary Court under the following 4
grounds:
1. If the lower Court is satisfied that a case pending before it
involves a question as to the validity of any Act or Ordinance or
regulation and the answer of such question must be essential for
the disposal of the case.
2. If the lower Court is of the opinion that an Act or ordinance or
regulation is invalid or inoperative and the High Court or Supreme
Court has not so far declared it as inoperative, then reference can
be made.
3. Before passing the Judgement, if a Court has doubt whether the
suit is cognizable by it or not, or whether it can entertain the suit
or not, the Court may make a reference to the High Court.
4. If a District Court thinks that a suit is entertairied by a
subordinate Court erroneously or such Court has assumed
 wrongful jurisdiction or has refused to exercise right jurisdiction,
then the District Court may make a reference to the High Court.
Conditions (Grounds) for reference:
1. There must be a question of law or usage in any pending suit.
2. The Lower Court must have reasonable doubt regarding such
question of law or usage.
3. There must be a pending suit or appeal.
4. The reference may be made suo moto or on the application of
either party.
CASE: In A.F Martina Vs. State: reference in a suit, unless the
decree is entitled for an The Goa High Court held that there can
be no appeal. In other words, in non-appealable cases, there can
be no reference.

Procedure for reference:

1. The reference is made by the Court by its own motion (suo
moto) or on the application by either party.
2. Pending the order of reference, the suit may be stayed.
3. The High Court after hearing the parties, decides. the point of
law. It transmits the copy of its judgement to the lower Court. The
lower Court disposes the case, according to the High Court's
judgement.
4. The High Court may return the case for any amendment to the
lower Court and may alter, cancel or set aside any decree or order
which the lower Court has passed.
5. The High Court may alter, cancel or set aside any decree or
order which the Trial Court has passed in such reference.
6. If a Court in which a suit is instituted doubts whether the suit
can be heard by a Court of Small Cause or cannot be heard by it,
then it may submit the record to the High Court with a statement
of its reasons for the doubt as to the nature of the suit.
7. If the District Court finds that a Court subordinate to it is
erroneously holding a suit to be heard by a Court of Small Cause
 or failed to exercise a jurisdiction vested in it by law, the District
Court may submit the record to the High Court with a statement
of reasons for its opinion.
On receipt of the record and statement, the High Court may
make such order as it thinks fit.

Q. 2 What is Temporary Injunctions? Explain the grounds and

principles to grant a temporary injunction.

Introduction
Injunctions is in the nature of a preventive relief granted to a litigant
“quia timet” that is because he fears future possible injury.
The court may by order grant a temporary injunction to retrain such act,
or make such other order for the purpose of staying and preventing the
wasting, damaging, alienation, sale, removal or disposition of the
property, or dispossession of the plaintiff, causing injury to the plaintiff
in relation to any property in dispute in suit, the Court, until the disposal
of the suit or until further orders. Order 39 of CPC refers to Temporary
injunctions
Meaning: An injunction is a judicial process whereby a party is
required to do, or to refrain from doing, any particular act.
The Object:
The object of issuing injunction is to preserve the subject matter of the
suit in status quo for the time being, and to prevent any change in it
until the final determination of the suit.
Kinds of Injunctions:
Injunctions are of Two kinds.
1. Temporary and
2. Permanent.
Rule 1 of Order 39 refers only to temporary injunctions. Sections 36 to
42 of the Specific Relief Act, 1963, deal with permanent injunctions.
Temporary Injunctions (Order 39, Rule 1):
Temporary injunctions are those injunctions, which are not permanent.
It will continue only for a specified period or until a further order of the
Court.
It can be granted at any stage of the suit even before the service
summons.
It is granted on a interlocutory application.
The rule governing the issue of temporary injunctions are different
from that of permanent injunctions.
Object:
The Object of temporary injunction is to maintain status quo till the
suit is finally decided. It is rather equitable remedy.
It is an order directed against a person.
Principles for granting Temporary injunction:
1. The petitioner must have a chance of success in the suit.
2. There must occur an irreparable injury, which can not be
compensated in damages.
Grounds/Circumstances:
When temporary injunction is prayed for the following conditions
are to be proved by affidavit or otherwise that:
1. The property is in danger of being wated, damaged or alienated
by any party or wrongfully sold in execution.
2. The defendant threatens or intends to remove or dispose of his
property with a view to defraud his creditors.
3. The defendant is about to commit a breach of contract or any
other injury.
In such circumstances the Court may grant a temporary injunction to
prevent such act.
Injunction to restrain repetition or Continuance of breach ( Order
39, Rule-2):
1.In any suit for restraining the defendant from committing a breach of
a contract or other injury of any kind, the plaintiff may, at any time after
the commencement of the suit, and either before or after judgment
apply to the court for a temporary injunction to restrain the defendant
from committing the breach of contract or injury complained of .
2. The Court may by order grant such injunction, on such terms as to
the duration of the injunction, keeping an account, giving security.
3. In case of disobedience of any injunction granted, or breach of such
terms, the court granting an injunction may order the property of the
person guilty of such disobedience or breach to be attached, and may,
Also order such person to be detained in the Prison for a term not
exceeding Three months.
4.No attachment shall remain in force for more than One year, all the
end of which time ,
If the disobedience for breach continues, the property attached may be
sold, and out of the sale proceeds the Court may award such
compensation as it thinks and shall pay the balance, if any to the party
entitled thereto.
The Court shall in all cases grant temporary injunction only after a
notice upon the opposite party is served, but where the purposeof the
injunction is likely to be defeated on account of delay in the notice,
Court may grant such injunction even without notice to defendant.
The Ex-parte injunction is granted or immediately on the following on
a application along with the affidavit filed before the Court. Where the
injunction is granted without notice, the court shall try to dispose of the
application within 30 days from the date on which the injunction was
granted.
This relief is a discretionary relief and cannot be granted unless it is
shown by an affidavit the substantial, serious, immediate and almost
irreparable injury will result if it is not granted.
While applying for an injunction one must also remember the provision
of Section 95 of CPC , which provides for compensation and damages
to the defendant in case the application fails and is not justified.

Q. 3 State Rules regarding Suits by or against minors and person

of unsound mind (order 32, Rule 1 to 16)

The procedure for instituting a suit by or against minors and persons of

unsound mind is given under Order XXXII.

The procedure of suits against minors and persons of unsound mind is

based on the fact that both of them are of immature understanding for
filing a suit.

A. Institution of suit by or against minor:

A minor is a person who is below the age of 18. If the minor is under
the superintendence of the Court of Wards, then his age of majority is
21.

The prosecution or defence on behalf of the minor is carried on by a

person called the next friend or guardian ad item (when the minor is a
defendant).

The provisions apply to persons incapable of defending their interest

due to mental immaturity. However, the provision has no application
to sovereign bodies.
Qualification and procedure of appointment of guardian:
The following are the provisions -
1. The suit is instituted in the name of minor or lunatic by a
next friend. The next friend must be a major and he should
not act against the interests of the minor or lunatic.

Case: Annrutaben Budhaji Thakore (deceased) by LR's Vs.

Nitaben Somabhai Paterl and another: The Supreme Court held
that when the trial Court found that the plaintiff was a person of
unsound mind and that he was properly represented through next
friend or guardian, then such a suit was maintainable.

B. Compromise decree:
The following essential conditions must be fulfilled for passing of a
compromise decree in a suit:

1. The next friend or guardian ad litem must apply to the Court

for permission for entering into the proposed compromise on
behalf of the minor. He must clearly state the terms of the
proposed compromise.
2. The Court should give its permission only after considering
the necessity of the compromise suit by the next friend or
guardian ad litem.
3. The compromise decree must be for the benefit of the minor
with some demonstrable advantage.
4. The next friend or guardian ad litem must also give his
consent to the proposed compromise.
5. The Court should consider that the compromise relates to the
subject matter of the suit.
6. If the minor becomes a major while the suit is pending, the
compromise entered into by the guardian is not binding on the
minor.
 Removal of guardian/next friend: The Court may order the
removal of the next friend on the following grounds:-

a. If his interest is adverse to that of the minor or if he is collusive

with the defendant.
b. If he fails to do his duties.
c. If he leaves India while the suit is pending in the Court.
d. On any other sufficient cause.
e. On the application for appointing a new guardian by the old
guardian ad litem or next friend.

C. Proceedings in the suit:

All applications and proceedings in the suit on behalf of the minor

or lunatic shall be made by his next friend as guardian for the suit.

Every consent or agreement to any proceeding given or made with

the express leave of the Court by the next friend or guardian shall be
valid and binding.
If any order is passed without the representation of the next friend or
guardian ad item, then it may be discharged with costs.
Q. 4 What is the procedure for institution of suits by or against
partnership firms constituted under the Partnership Act?
(Suits by or against partnership firms: Order 30)

Suits by or against partners Rule 1:

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 of
which they were partners when the cause of action accrued.

Any party to a suit may, in such a case, apply to the Court for a
statement of the names and addresses of the persons who were, at the
time of the accrual of the cause of action, partners in such firm. In a
suit by or against a firm, any pleading may be signed and varied by
any one of the partners.
Service of Summons Rules 3-5:

Rules 3 provides for service of summons upon the firm and its
partners. Rule 4 declares that if any of the partners dies before filing
or during the pendency of the suit, it is not necessary to join his legal
representative as a party to the suit.

Rule 5 lays down that when a summons is issued to a firm under Rule
3, every person served shall be informed by notice whether he is
served as a partner or as a person having control or management of
the partnership business, or in both capacities. In the absence of such
a notice, the person shall be deemed to be served as a partner.
Appearance by partners Rule 6-8:

The defendant-partners shall appear individually in their own names.

All subsequent proceedings, however, shall continue in the name of
the firm. If a notice is served on a person having control or
management over the partnership business, he need not appeal unless
he is a partner.

Rule 8 enables a person who is served with a summons as a partner to

appeal under protest and deny that he was a partner at the material
time and have the issue as to his being a partner tried at the trial.

Suits between co-partners Rule 9:

Order 30 applies also to suits between a firm and one or more of its
partners therein and to suits between firms having one or more
partners in common. No execution, however, can be issued in such
suits except with the leave of the court
Suits against persons carrying on business in names of others, Rule
10:

Any person carrying on business in a name or style other than his one
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 insofar as the nature of such case permits, all rules under Order
30 shall apply accordingly.
a. Decree in partnership suits

Order 20 Rule 15 of the Code Provides for passing of a preliminary

decree by the court before passing a final decree in a suit of
dissolution of partnership or taking of partnership accounts.
b. Execution of decree abasing partnership firm

Order 21 Rules 49 and 50 provide for execution of a decree

abasing a partnership firm and for attachment of partnership
property.
Q. 5 What is the procedure for institution of Suits by or against
minors and unsound persons

Introduction
An infant is, in law, regarded as of immature intelligence and
discretion and owing to his want of capacity and judgement is
disabled from binding himself except where it is for his benefit. The
law will, as a general principle, treat all acts of an in fact 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.

Nature and Scope: Order 32 prescribes the procedure of suits to

which minors or persons of unsound mind are parties.
Object: Order 32 has been specially enacted to protect the interests 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.

The provisions of Order 32 reflect principles of natural justice, equity

and good conscience, in as much 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
interests of persons with legal disability are bound to suffer.
1. Suits by minors: Rules 1-2A

Every suit by a minor should be instituted in his name through his

guardian or next friend. If it is not done, the plaint will be taken off
the file. where such minor is a plaintiff, the Court may, at any stage
of the suit, order his guardian or next friend, either on the
application of the defendant or suo motu, for reasons to be
recorded, to furnish security for costs of the defendant. this
 provision seeks to discourage vexatious litigation by guardians or
next friends of minors.
2. 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 an in execution of a decree unless it is terminated by
retirement, removal or death of such guardian.
3. Who may be appointed as guardian or next friend? Rule 4:

Any 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 cost may permit another
person to act a the next friend, or guardian, the court may appoint
any of its officers to be such guardian.
4. Powers and duties of guardian or next friend. Rules 5-7:

No guardian or 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 behalf 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 mind is represent
by a pleader, with the certificate of the pleader that such
compromise is, in his opine, for the benefit of the minor.

Such certificate or opinion expressed in the affidavit, however,

cannot preclude the court form 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 in behalf of a minor
either by way of compromise before or under a decree or order in
favour of the minor.
b. Enter into any agreement or compromise on behalf of a minor with
referee to the suit, unless such leave is expressly record 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
maybe, and if the minor is represented by a pleader, by the
certificate of the pleader to the effect that such compromise is in
his opinion for the benefit t 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.

Rules 6 and 7 are designed to safeguard the interests of a minor

during the pendency of a suit against hostile, negligent or collusive
acts of a next friend or guardian.
They are based upon the general principle that in fact litigants
become wards of the core and the court has got the right and also
the duty to see that the next friends or guardians act properly and
bona fide in the interests of minors and that no suits are instituted
or carried on by them for their own benefits only irrespective of the
benefits of minors.
 5. Retirement, removal or death of a guardian or next friend –
Rules 8 - 11

A next friend or guardian of a minor cannot retire without first

procuring a fit person for substituting him and giving security for
the costs already incurred by him. The court may remove a next
friend or guardian of a minor, if it satisfied that:
I. His interests is adverse to that of the minor.
II. Hi is so connected with the opposite party that is unlikely that the
interest of the minor will be properly protected by him
III. He does not discharge his duty
IV. He ceases to stay in India during the pendency of the suit
V. There is any other sufficiently justifiable cause.

Where the guardian or next fired of a minor desires to retire or fails

to discharge his duty where there are other sufficient justifiable
grounds, the court may permit such guardian or next friend to retire
or may remove him and may also make such order as to costs as it
thinks fit. It should also appoint a new next friend or guardian.
6.Decree against minors: Rule 3-A:

A decree passed against a minor without appointment of next

friend or guardian is null and void. But a decree passed against a
minor cannot be said to be illegal nor can be set aside only on the
ground that the next friend or guardian of the minor had an interest
in the subject
matter of the suit adverse to that of the minor. If the minor is
prejudiced by reason of adverse interest of the next friend or
guardian, it can be made a ground for setting aside a decree. the
minor may also obtain appropriate relief for misconduct or gross
negligence on the part of his next friend or guardian.
 7.Minor Attaining Majority Rules 12 - 14 :

On attaining the age of majority, a minor plaintiff may adopt any

of the following cases:
I. He may proceed with the suit. In that case he shall apply for an order
discharging the next friend or guardian and for leave to proceed in
his own name.
II. He may abandon the suit and apply for its dismissal on repayment
of costs to the defendant or to his guardian or next friend.
III. He may apply for dismissal of the suit on the ground that it was
unreasonable or improper.
Where he is a co-plaintiff, he may repudiate the suit and may apply
IV.
to have his name struck off as co-plaintiff. If the court finds that he
is not a necessary party, it may dismiss him for the suit.
But if he is a necessary
Q. 6 State the procedure for instituting a suit by an Indigent
person.

Introduction
When a person wants to approach a civil court seeking justice has to
file a suit by paying prescribed court fee. Any suit filed without
prescribed court fee is liable to be rejected. In certain cases, the plaintiff
may not be able to pay the prescribed court fee due to poverty or
financial instability on some other person. In order to rescue/protect
such persons, provisions have been made under Order 33 of the CPC
to provide exemption from the Court fee.
An 'Indigent Person' is one, who is not having sufficient mean to pay
court fee prescribed by law. In other words, he is poor and cannot afford
court fee.
Order XXXIII, Rule 1 of the Code of Civil Procedure, provides that a
suit may be instituted by an indigent person. Such suit is as known as
'Pauper Suit.
Explanation I to Ill defines indigent person.
According to explanation I and II of Order XXXIII, a person is said to
be an indigent person -
• he is not possessed of sufficient means to enable him to pay the
prescribed court fee (other than property exempt from attachment
in execution of a decree and the subject-matter of the suit to
enable him to pay the prescribed by law for the plaint in such suit)
or
• where no such fee is prescribed, if he is not entitled to property
worth one thousand rupees or more (other than the property from
attachment is execution of a decree, and the subject matter of the
suit).
Explanation II: Any property which is acquired by a person after the
presentation of his application for permission to sue as an indigent
person, and before the decision of the application, shall be taken into
account in considering the question whether or not the applicant is an
indigent person.
Procedure for Pauper Suits : Order XXXIII of the Code of Civil
Procedure lays down the procedure for instituting filing) a suit by an
indigent person.
Generally, a person seeking relief through Civil Court by instituting an
action is required to pay prescribed court fee. But, Order XXXIII
exempt an indigent person from paying court fee.
However, the exemption is not complete and is subject to certain
conditions.
Conditions- (Rule 3) : The Court entertains a suit by an indigent
person, provided the following conditions are satisfied:
1 The person (applicant) must not have possessed sufficient means to
pay the court fee.
2. He must not be entitled to a property worth one thousand or abo and
the suit must be a Bonafede one.
The indigent person must present the application (for fee exemption) to
the court in person.
Persons, who are exempted, appear before the court, may make an
application through others.
If the number of plaintiffs is more than one, the application can be ma
by any of them (Rule 3).
The court, after making necessary enquiry (though Chief Ministerial
Officer of the Court), may permit the application to sue as an Indigent
Person.
Rejection of application: The Court may reject the applications for
pauper suit, in the following cases -
1. If the applicant is not a pauper.
 2. If the applicant disposes of his property fraudulently two months
before filing the application.
3. If the applicant has entered into an agreement with the third party,
having interest in the subject matter.
Dispauper (Rule 9): Pauper is one, to whom the court grants
permissions to file the suit without court fee. If the permission is
withdrawn by the court at the beginning of the proceedings, he is called
'Dispauper .
Before withdrawing such permission, the Court shall give 7 days clear
notice in writing to the plaintiff Rule 9 gives three grounds for
dispaupering:
a) if the indigent person is guilty of vexatious or improper conduct in
the course of the suit.
b) If it appears that his means are such that he ought not to continue to
sue as an indigent person; or
c) If he has entered into any agreement with reference to subject matter
of the suit under which any person has obtained an interest in such
subject matter.
Example : An indigent person agrees to pay his advocate a large sum
of money, if he wins his case. It is a good ground for dispaupering him.
Rule 9.A: Rule 9.A makes provision for the appointment of a
government Pleader to an Indigent Person. It provides that where a
Court grants the application of an indigent person who is not
represented by any advocate, then the Court may give the assistance of
an advocate, with the previous approval of the State Government.
Rule 18 provides that Government may provide free legal services lo
indigent persons.
Appeal : Order 44 extends (confers) right on the indigent person to go
on appeal. However, he has to apply once again to the appellant court.
Order 44 contains 3 rules as stated below:
Rule 1 - The indigent person is entitled to prefer an appeal. The appeal
shall be presented in an application accompanied by a memorandum of
appeal. The provisions of the appeal shall be applicable.
Rule 2 - The Court may grant the time for payment of Court fee, in case
of an application rejected under Rule 1.
Rule 3 – Generally, no further inquiry is required in the case of
appellant Indigent. But if the Government pleader of the respondent
disputes, a further inquiry shall be proceeded by the Appellate Court
regarding the pauperism of the appellant. The inquiry shall be
conducted by an officer of that Court.
Grant of time for payment of Court Fee: As per Rule 15.A of Order
XXXIII of the Code of Civil Procedure, nothing contained in Rule 5,
Rule 7 or Rule 15 shall prevent a Court while rejecting an application
under Rule 5 refusing an application under Rule 7, from granting time
to the applicant to pay the requisite Court fee within such time as may
be
Q. 7 What is inter pleader suit? Explain conditions and procedure
relating to an inter pleader suit.

Introduction
Order XXXV of the Code of Civil Procedure, 1908 lays down the
procedure for interparty suits; and Section 88 of the Code provides for
the persons entitled to file Interpleader suits.
Meaning: 'To interplead means, "to litigate with each other to settle a
point concerning a third party". An interpleader suit is a suit in which
the real dispute is not between a plaintiff and a defendant but between
the defendants, who interplead against the each other, unlike in an
ordinary suit.
Section 88 of the Code of Civil Procedure provides that where two or
more persons claim adversely to one another the same debts, sum of
money or other property, movable or immovable, from another person,
who claims no interest therein other than for charges or costs and who
is ready to pay or deliver it to the rightful claimant, such other person
may institute a suit of interpleader against all the claimants for the
purpose of obtaining a decision as to the person to whom the payment
or delivery shall be made and of obtaining indemnity for himself.
However, where any suit is pending in which the rights of all parties
can properly be decided, no such suit of interpleader shall be instituted.
Generally, in a civil suit, the dispute lies between the plaintiff and
defendant. There are certain circumstances in which a plaintiff does not
show any interest in matter of the dispute. The real dispute lies between
the defendants only.
In other words, "An interpleader suit is a suit, in which the real dispute
lies between the defendants only.
Example: 'A' holds certain property 'X', in which he has no interest.
"B' and C' independently claim the property as their (88 or Cs) own. 'A
normally sues 'B' and C' to find out courts decision in favour of a real
claimant 'B' or 'C'. In such case, the two defendants
"B' and 'C' claim adversely to each other. Plaintiff 'A' will remain silent
as a spectator. The real dispute lies between the two defendants, B and
'C'.
In an Interpleader suit, instead of pleading against the plaintiff, the
defendants interplead themselves.
Who may file an inter pleader suit (Section 88): Section 88 of the
Code provides for who is entitled to file an interpleader suit against two
or more defendants. According to this section, any person who possess
some property of another, in which he has no interest and it is claimed
by several persons, may file Interpleader Suit.
Conditions: Following conditions are to be satisfied in respect of an
interpleader suit:
1. The plaintiff must be in lawful possession/custody of another's
property.
2. The property may be movable or immovable or money or a debt.
3. The plaintiff must not have any interest in the subject matter
(property).
4. The property must be claimed by two or more defendants.
5. The plaintiff is readily prepared to deliver the property to the right
climate against court decision.
The plaintiff cannot make an interpleader suit, if the matter is pending
before a court of competent jurisdiction.
Procedure: Order XXXV of the Code, lays down the procedure for
instituting an interpleader suit. It is filed like a plaint in a Civil Suit. In
addition, some other particulars as laid down in Rule 1, Order XXXV
are to be furnished as stated below:
1. The plaintiff must disclose that, the possessor has no interest in the
subject matter, except costs or charges.
 2. The plaintiff must furnish the details of the claims made by the
defendants.
3. There should not be any collusion between the plaintiff and the
defendant.
Interpleader suits are filed very rarely and the legislature provides for
sound principles to protect the interests of a real claimant.

Q. 8 What are the procedures for filing the suits by or against

Government, Or Public Officer?
Introduction
Under the principle of 'delegation of authority' government officials
discharge variety of functions on behalf of the government Similarly
government or the State is liable for the wrongs, if any committed by
such officials on the principle of "Vicarious Liability Delegation of
Authority means, "transfer of power/authority to subordinate bodies.
Similarly, 'Vicarious Liability' means, "liability of a person for the
wrong committed by another".
Sections 79 to 82, Order XXVII of the Code of Civil Procedure deal
with 'Suits by or Against the Government' or 'Public Officers while
discharging their duties in official capacity. Order XXVII containing 8
rules provides for the procedure of proceedings by or against the
Government or the Public Officers in their official capacity.
Meaning of Government under CPC – Order 27, Rule 8B:
According to Rule 8.B of Order XXVII of the Code of Civil Procedure,
'Government' means in relation to any suit by or against the Central
Government or against a public officer in the service of the
Government, the Central Government and in relation to any suit by or
against a state govt or against a public officer in the service of a state,
the state govt.
Thus, the Central government and the state government are considered
as government in relation to the code of civil procedure.
Section 79 runs as follows.-
In a suit by or against the Government, the authority to be named as
plaintiff or defendant, as the case may be shall be -
a)In the case of a suit by or against Central Government, the Union of
India, and
b)In the case of a suit by or against a State Government, the State.
Jurisdiction: A suit against the Government can only be brought in the
Court within the local limits of whose jurisdiction the cause of action
arose.
Competent Authority (Sec.79) : Section 79 of the Code, lays down
the provisions relating to suits by or against the authority to be named
as plaintiff or defendant shall be -
1. Secretary to that Government in case of a suit by or against the
Central Government.
2. Secretary to that Government or Collector of the District in case
of State Government.
3. Chief Secretary to the Government in case of the State of Jammu
and Kashmir.
4. General Manager in case of Railway.
Notice (Sec.80 (2)): According to Section 80 of the Code, a notice of
two months, shall be served before filing a suit against the Government
officer.
The suit will be dismissed, if Such notice is not compulsory in case of
ordinary suits.
The object of notice under Section 80 is to promote the administration
of justice and to secure public good by avoiding unnecessary litigations
so as to provide the government/ public officer with an opportunity to
settle the claim/dispute within the period of the notice/two months.
However, the notice of two months may be relaxed in case of suits for
an urgent and immediate relief.
2). Notice under Section 80 is mandatory, and non-compliance in the
rule under Section 80 leads to rejection of the plaint.
According to Sec.80 of CPC, the Notice will have to be in writing and
reads as below:
a) in the case of a suit against the Central Government except where
it relates to a railway, a Secretary to the Government
b) in the case of a suit against the Central Government when it
relates to a railway, General Manager of that Railway,
cc)in the case of a suit against the Government of the State s Jammu
and Kashmir, the Chief Secretary to that Government or any other
officer authorised by that Government on his behalf,
c) in the case of a suit against any other State Governmental
Secretary to that Government or the Collector of the District,
and, in the case of public officer, delivered to him or left at his office,
stating the cause of action, the name, description and place d residence
of the plaintiff and the relief which he claims; and the plain shall
contain a statement that such notice has been so delivered a left.
2). A suit to obtain an urgent or immediate relief against Government
or any public officer in respect of any act purporting to be done by such
public officer in his official capacity, may be instituted, with the leave
of the court without serving any notice as required by sub-sec.(1); but
the court shall not grant relief in the suit, whether interim or otherwise,
except after giving to the Government or Public officer, as the case may
be, reasonable opportunity of showing cause in respect of the relief
prayed for in the suit.
3). No suit instituted against the Government or against a public officer
in respect of any act purporting to be done by one such public officer
in his official capacity shall be dismissed merely by reason of any error
or defect in the notice referred to sub-sec.(1), if in such notice,
a) the name, description land the residence of the plaintiff had been so
given as to enable the appropriate authority or the public officer to
identify the person serving the notice and such notice had been
delivered or left at the office of the appropriate authority specified in
Sub-Sec.(1) and
(b). The cause of action and the relief claimed by the plaintiff had been
substantially indicated.
Privileges (Sec.81): Section 81 of the Code deals with exemption from
arrest and personal appearance. It provides for certain privileges to the
person authorised to act on behalf of the Government.
1. He shall not be liable to be arrested.
2. His property cannot be attached except in execution of a decree.
3. He is exempted from appearing before the Court in person.
Further, the Government is not required to deposit any security for a
suit filed against the Government official for acts done in discharge of
his duty or obligations imposed on him by law. The Government also
shall be made as a party.
Q. 9 What is appeal? Explain various types of appeal provided
under CPC

Introduction
Before the trial Court, the plaintiff files a suit against the defendant for
a cause of action. The trial Court enquires into the matter and comes to
a conclusion and passes a decree either in favour of the plaintiff or in
favour of the Defendant depending upon the evidences produced before
it. If the suit is decreed in favour of Plaintiff, the Defendant can appeal
to higher court against the Decree. In other words the appeal is a
complaint made to higher Court by the aggrieved party. The term
'Appeal' has not been defined in C.P.C. whoever files an appeal is called
'Appellant. If the defendant files an appeal he is known as
'Appellant/Defendant. If the Plaintiff files the appeal before the higher
Court, he is known as 'Appellant/Plaintiff.' The other party who has to
answer is called 'Respondent, viz. 'Respondent Plaintiff or
'Respondent/Defendant.
Memorandum of Appeal: Order XLI provides that every appeal shall
be preferred in the form of memorandum signed by the appellant or his
pleader and presented to the Court or to such officer as it appoints in
this behalf.
A person cannot file an appeal from a decision is a matter of right. Right
of appeal is not an inherent right.
4.Who may appeal: An appeal may be preferred by any one of the
following persons/parties having legal grievance against a
decision/judgment of a lower court -
i) Any party to the suit adversely affected by the
decree, or, if such party is deal, by his legal representative.
ii) Any transferee of the interest of such party, who, so far as such
interest is concerned is bound by the decree, provided his name is
entered on the record of the suit.
iii) An auction purchaser may appeal from an order in execution setting
aside the sale on the ground of fraud.
No person, unless he is party to the suit is entitled to appeal.
5. When can an appeal be allowed : Section 96 provides than an appeal
shall lie from every decree passed by any Court exercising original
jurisdiction to the Appellate Court.
An appeal shall lie from an original decree passed ex parte.
An appeal shall lie from the following orders, such as an order under
Section 35-A; an order under Section 91 or 92 refusing leave to institute
a suit of the nature referred in Section 91 or Section 921, as the case
may be, an order under section 95.
6. When can an appeal not be allowed : An appeal shall not be allowed
from a decree passed by the Court with the consent of parties (Section
96).
No appeal shall lie, except on a question of law, from a decree in any
suit of the nature cognizable by Courts of small Causes, when the
amount of value of the subject matter of the original suit does not
exceed Rs.3,000/- (Section 96).
Where any party did not appeal against the preliminary decree, he lost
his right to file an appeal after it final decree (Section 97).
A decree which is correct on the merits, and is within the jurisdiction
of the Court, but still suffers with some small technical problems, such
as misjoinder or non-joinder of parties causes of action, of any error,
defect or irregularity, etc. The decision should not be upset merely for
technical and immaterial defects. In such occasion, no appeal shall be
allowed (Section 99).
7. Kinds of Appeals : Appeals may be classified under the following
heads -
i) Appeals from Original Decrees (Sections 96-99, Order 41).
il) Appeals from Appellate Decrees or Second Appeals (Sections 100-
103, Order 42).
iii) Appeals from Orders (Sections 104-106, Order 43, Rules 1,2)
IV) Appeals to the Supreme Court (Sections 109 & 112, Order 45)
(I) Appeals from Original Decrees (Sections 96-99, Order 41): After
the passing of the decree a successful party in a litigation proceeds to a
Court of execution for reaping the benefit of his decree but the
unsuccessful party comes to Court of appeal to have the decree set aside
provided the law gives him the right of appeal.
The right to prefer an appeal from the judgement of the court of first
instance is derived from the provided the law gives him the right of
appeal.
An appeal shall, however, lie on a question of law even in cases referred
to in sub-section (4) of Section 96 of the Code.
1. An appeal may lie from an original decree passed ex parte
2. No appeal shall lie, except on a question of law, from a decree in
any suit of the nature cognizable by Courts of Small, Causes when
the amount or value of the subject matter of the original suit does
not exceed ten thousand rupees.
Stay of proceedings and of Execution: Order 41, Ruie 5 provides that
an appeal shall not operate as a stay of the original proceedings.
The Appellate Court may order stay of proceedings or execution if
there are sufficient reasons.
The Court should not make a stay order unless the Court is satisfied by
the following facts.
1. Substantial loss may result to the party applying for the stay of
execution.
2. The application has been made without unreasonable delay
 3. That security has been given by the applicant for appearance of
the decree.
Procedure on admission of appeal: where an appeal memorandum is
admitted, it shall be registered with date of presentation (Order 41, Rule
9).
The Court may demand security from the appellant for the cost of
appeal.
If the appellant is residing outside India and is having no property in
India, the Court shall in all cases demand such security. If the security
is not furnished within the prescribed period, the Court shall reject the
appeal (Order 41, Rule 22).
If the appellant does not appear on the day fixed for hearing, the Court
may dismiss the appeal (Rule 11).
Cross Objection (Order 41, Rule 22): Order 41, Rule 22 deal with
cross objections. The respondent will generally be supporting the
decree. The decree may contain some findings against him.
With regard to those findings in the decree he is entitled to file an
appeal. But he has not preferred an appeal because the other party has
filed an appeal.
It can be filed only by a person who is entitled to file an appeal.
Powers of the Appellate Court: The appellate Court has the power:
1. To determine a case finally and to pass a decree.
2. To remand a case and direct what issues are to be tried.
3. To frame issues and refer them for trial if the lower Court has
omitted to frame or try any issue.
4. To take additional evidence which ought to have been admitted.
The Court may fix a day for hearing the appeal. The appellant will oe
heard first. If the Court finds no grounds it may, dismiss the appeal at
once.
If the appeal is not dismissed, it shall hear the respondent (Order 41,
Rule 14). If the appellant does not appear on the day posted for hearing,
the appeal shall be dismissed. If the respondent does not appear, the
appeal may be heard ex-parte (order 41,rule 17).
(ii) Appeals from Appellate Decrees or Second Appeals (Sections
100-103, Order 42) : Second appeal means an appeal (one more
appeal) from/against the decision of an appellate Court A second appeal
shall lie in the High Court from a decree passed in appeal by any court
subordinate to the High Court. Sections 100-103, Order 42 lays down
the provisions relating to the Second appeal.
Section 102 says that no second appeal shall lie in any suit if -
1. The suit is of the nature cognizable by small causes Court.
2. The value does not exceed Rs.3000/-.
No second appeal can be preferred on question facts. But if a second
appeal is already before the High Court it may decide issues of fact
when such issues.
1. Have not been decided by the first appellate Court.
2. Have been wrongly decided by such Court.
It can be decided by the High Court in second appeal only if evidence
on record is sufficient for such determination (Section 103).
iii) Appeals from Orders (Sections 104-106, Order 43, Rule 1, 2):
Section 104(1) of the Code of Civil Procedure provides that an appeal
shall lie from the following orders.
a) An order under Section 35.A.
b) An order under Section 91 or Section 92 refusing
leave to institute a suit of the nature referred to in Section 91 or 92, as
the case may be.
c) An order under Section 95.
d) An order under any of the provisions of this Code imposing a fine or
directing the arrest or detention in the Civil prison of any person except
where such arrest or detention is in execution of a decree.
e) Any order made under rules from which an appeal is expressly
allowed by rules.
However, no appeal shall lie against any order under Section 35.A save
on the ground that no order, or an order for the payment of a less
amount, ought to have been made.
Appeals from orders: According to Order XLIII, Rule 1 of the Code
of Civil Procedure, an appeal shall lie from the following orders under
the provisions of Section 104, namely -
• an order under Rule 10 of Order VII returning a plaint to be
presented to the proper Court except where the procedure
specified in Rule 10.A of Order VIl has been followed;
• an order under Rule 9 of Order IX rejecting an application (in a
case open to appeal) for an order to set aside the dismissal of a
suit;
• an order under. Rule 13 of Order IX rejecting an application (in a
case open to appeal) for an order to set aside a decree passed ex
parte;
• [omitted]
• an order under Rule 21 of Order XI;
• an order under Rule 34 of Order XXI on an objection to the Iraft
of a document or an endorsement;
• an order under Rule 72 or Rule 92 of Order XXI setting aside r
refusing to set aside a sale;
• an order under Rule 9 of Order XXII refusing to set aside the
abatement or dismissal of a suit;
• an order under Rule 10 of Order XXII giving or refusing to give
leave;
 • an order under Rule 2 of Order XXV, rejecting an application (in
a case open to appeal) for an order to set aside the dismissal of a
suit;
• an order under Rule 5 or Rule 7 of Order XXXIII rejecting an
application for permission to sue as an indigent person;
• orders in interpleader suits under Rule 3, Rule 4, or Rule 6 of
Order XXXV;
• an order under Rule 2, Rule 3 or Rule of Order XXXVIII;
• an order under Rule 1, Rule 21, Rule 2.A, Rule 4 or Rule 10 of
Order XXXIX;
• an order under Rule 1 or Rule 4 of Order XL;
• an order of refusal under Rule 19 of Order XLI to re- admit, or
under Rule 21 of Order XL to re-hear, an appeal;
iv) Appeals to the Supreme Court (Sections 109 & 112, Order 45):
an appeal shall lie to the Supreme Court from any judgment, decree or
final order in a civil proceeding of a High Court, if the High Court
certifies -
1. That the case involves a substantial question of law of general
importance; and
2. That in the opinion of the High Court the said questions need to
be decide by the Supreme Court (Section 109).
Savings:
1. Nothing contained in the Code shall be deemed -
• to affect the powers of the Supreme Court under Article 136 or
any other provisions of the Constitution;
• to interfere with any rule made by Supreme Court, and for the
time being in force for the presentation of appeals to that Court,
or their conduct before that Court.
Right of Appeal : Right of appeal to the Supreme Court is no expressly
laid down under Article 133 of the Constitution.
Limitation : under the Limitation act, the application for leave to
appeal to the Supreme Court must be made within 90 days from the
date of the decree or order appealed from.
But in case where leave was refused by the High Court the limitation is
60 days.
Civil Proceedings: The judgment decree or order against which appeal
is preferred must be made in a civil proceeding:
Substantial question of law: The question of law must be one with
regard to which there may be difference of opinion.
Finding of fact: Supreme Court ordinarily does not interfere with
concurrent finding of fact arrived at by trial Court and High Court.
Procedures for Appeals to Supreme Court.
Powers of the Court pending appeal in the Supreme Court
i) The Court may impound any movable property in suit.
ii) It may pass a stay order against execution of the decree.
iii) It may take security from the decree holder and allow him to execute
the decree.
iv) It may appoint receiver over the suit property (order 45, Rule 13).
SHORT NOTES.

Q 1) Write a note on Inter pleader suit?

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.
After claiming for such property the bank or the authority has
to file an interpleader suit in the court. Then the court will
decide who will be the main owner of the property. In an
interpleader suit, there were many defendants to claim the
property. Plaintiff gets the monetary value for filing the suit in
the court on behalf of the defendant. He is not liable for any
damage.
The Object of filing interpleader suit.

The suit is filed when the object is to be claimed by the

defendants. The claim of the suit gets adjudicated. The suit is
filed when any person in any condition cause death and has left
some of the property without transferring to other members of
the family then that other family member has to claim the
property or money from the bank and then the bank has to
become claimant to file a suit in the court to decide whomever
the property has to be transferred. This type of suit filed in the
Res Judicata court.
Conditions of Interpleader suit

Debt, money, property either movable or immovable in the dispute.

1. Two defendants are there in the suit.

2. Both defendants can claim each other for the property or

money.
3. The person who has to pay the debt to the defendant is not
valid for any interest.

4. The Claimant is willing to pay the debt, or some amount of

money, or property to the defendant.

5. Suits are not pending in this. 7. This suit cannot be filed twice

if the judgment is given in Res judicata.

Q 2 Write a note on Inherent power of the court

Section 151 of CPC

Section 151 deals with “Saving of inherent powers of Court.” This

Section states that ‘Nothing in CPC shall be considered to restrict or
otherwise affect the inherent power of the Court to make such orders as
may be important for the ends of justice or to limit abuse of the method
of the Court.’ It is not obligatory for the court to wait for the law made
by parliament or order from the higher judiciary. Court has
discretionary or inherent power to make such order which is not given
in terms of laws for the security of justice or to check misuse of the
method of the Court.
The scope of exercising of Section 151 of CPC can be represented by
some cases as follows:

• The court may recheck its orders and resolve errors;

• Issuance of provisional sanctions when the case is not included
by order 39 or to place alongside an ‘ex parte’ order;
• Illegal orders or orders passed without jurisdiction can be set-
aside;
• Subsequent events in the case can be taken into consideration
by the court;
• Power of Court to continue trial ‘in camera’ or prevent
disclosure of its proceedings;
• The court can erase remarks made against a Judge; and
• The court can improve the suit and re-hear on merit or re-
examine its order.

Ends of justice In the case of Debendranath v Satya Bala Dass, the

meaning of “ends of justice” was explained. It was held that “ends of
justice” are solemn words, also theres words are not merely a polite
expression as per juristic methodology. These words also indicate that
Justice is the persuit and end of all law. However, this expression is not
vague and indeterminate notion of justice according to laws of the land
and statutes.
The Court is allowed to exercise these inherent powers in cases like- to
recheck its own order and correct its error, to pass injunction in case
not included by Order 39, and an ex parte order against the party, etc.
Abuse of process of the court

Section 151 of the CPC provides for the exercise of inherent powers to
check the infringement of the process of the court. Abuse of the powers
of the court which happens in unfairness to party needs to get relief on
the ground that the act of a court shall not prejudice anyone. When a
party practices fraud on the court or on a party to a proceeding, the
remedies have to be provided on the basis of inherent power.

The word ‘abuse’ is said to occur when a Court uses a method in doing
something that it is never expected to do is the perpetrator of the said
abuse and there is a failure of justice. The injustice so done to the party
must be given relief on the basis of the doctrine of actus curiae
neminem gravabit (an act of the court shall prejudice no one). A party
to a case will become the perpetrator of the abuse in cases when the
said party does acts like obtaining benefits by functioning fraud on the
Court or a party to the proceedings, prompting the multiplicity of
proceedings, etc.
Q 3 Write a note on CAVEAT (Section 148-A)

Meaning: The word has not been defined in the Code. Literally,
means "let him beware", a forma notice. It is a caution registered in
a public Court or office to indicate to the officials that they are not to
act in the matter mentioned in the caveat without first giving notice
to the caveat.

Caveat meant "anything in the nature of an opposition at any stage,

and is not confined to the opposition at the great seal, which was the
meaning of 'caveat' under the old practice".

It is a legal notice given by an interested party to some officers not to

do a certain act until the party in heard in opposition.

Object of Section 148A CPC

i). To safeguard the interest of the

caveator.

ii). To avoid the multiplicity of

proceedings.

Caveat is lodged in the form of a petition.

Provision: Section 148-A of the Code provides for lodging of a

caveat.

Section 148-A: Right to lodge a caveat:

1. Where an application is expected to be made, or has been made,
in a suit or proceeding instituted, or about to be instituted, in a
Court, any person claiming a right to appear before the Court on
the hearing of such application may lodge a caveat in respect
thereof.

2. Where a caveat has been lodged under sub-section (1), the person
by whom the caveat has been lodged (hereinafter referred to as the
caveat or) shall serve a notice of the caveat by registered post,
acknowledgment due, on the person by whom the application has
been, or is expected to be, made under sub-section (1).

3. Where, after a caveat has been lodged under sub-section (1), any
application is filed in any suit or proceeding, the Court shall serve
a notice of the application on the caveator.

4. Where a notice of any caveat has been served on the applicant, he

shall forthwith furnish the caveator, at the caveator's expense, with
a copy of the application made by him and also with copies of any
paper or document which have been, or may ,be, .filed by 'him in
support of the application.

5. Where a caveat has been lodged under sub-section (1), such caveat
shall not remain in force after the expiry of ninety days from the
date on which it was lodged unless the application referred to in
sub- section (1) has been made before the expiry of the said period.
Q 4Write a note on Appeal
An appeal consists of a process where superior court reconsiders
the decision of inferior court. The consideration may be made on
the question of fact as well as question of law. The court while
exercising its appellate jurisdiction can confirm, reverse, modify
or remand the matter to lower court for fresh decision in terms of
its direction. However, the term ‘Appeal’ is not defined under the
Civil law. Appeal is a creature of statute and right to appeal is a
substantive right. It is notable here that suo moto appeal is not
possible.

Meaning of appeal:
The Black’s Law Dictionary defines appeal as “the complaint to a
superior court for an injustice done or error committed by an
inferior one, whose judgement 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.”

Who can file an appeal?

1. Any party to the suit, who is adversely affected by the
decree or the transferee of interest of such party has been
adversely affected by the decree, provided his name is
entered on the record of the suit. 2. If such party is dead
who get affected by the decree then its legal
representatives can file an appeal by virtue of Section
146 CPC. 3. An auction purchaser may file appeal
against an order in execution of a decree to set aside the
sale on ground of fraud. 4. No other unless he/she is a
party to a suit can file 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.
4. Appeal to Supreme Court. 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.

Provisions related to appeal to Supreme Court in civil case:

Primarily, the Indian Constitution under Article 133 provides
provision to file an appeal to the Apex Court. Further, Section
109 of the CPC provides the conditions under which an appeal
could be filed before the Supreme Court, these are enumerated
below:-

1. An appeal can be filed from a judgement, decree, or final

order of the High Court.
2. A case which involves the substantial question of law of
general significance. where High Court opines it to be fit for
the Supreme Court to deal with such a question.
 UNIT -5

1) Limitation bars the remedy, but does not extinguish the rights’
Explain?

Introduction

The law of limitation finds its roots in the maxim Interest

Reipublicae Ut Sit Finis Litium which means that in the interest
of the state as a whole there should be a limit to litigation and
vigilantibus non dormientibus Jura subveniunt which means the
law will assist only those who are vigilant with their rights and
not those who sleep upon it.

Bar of Limitation Under Section 3

Section 3 of the Act provides that any suit, appeal, or application

must be made within the limitation period specified in the
Limitation Act.
▪ If any suit, appeal or application is made beyond the prescribed

period of limitation, it is the duty of the Court not to proceed

with such suits irrespective of the fact whether the plea of
limitation has been set up as a defence or not.
▪ The provisions of Section 3 are mandatory, and the Court can

suo motu take note of question of limitation.

▪ The question whether a suit is barred by limitation should be

decided on the facts as they stood on the date of presentation of

the plaint. It is a vital section upon which the whole Limitation
Act depends for its efficacy.
▪ The effect of Section 3 is not to deprive the Court of its

jurisdiction. Therefore, decision of a Court allowing a suit which

had been instituted after the period prescribed is not vitiated for
 want of jurisdiction. A decree passed in a time barred suit is
not a nullity.

Limitation Bars Remedy but doesn't Extinguish Right

Law of Limitation merely bars the remedy, bat not the right.
It is well known that the Limitation Act, with regard to
personal action, bars the remedy without extinguishing the
rights [Hari Raj Singh vs. Sanchalak Panchayat, AIR
1968, All. 246 at P. 250).

The law of limitation bars the remedy of plaintiff but does not
extinguish his right. It is meant to see that the plaintiff does not
resort to dilatory tactics, but seeks his remedy within a time
fixed by the Legislature.

The right continues to exist notwithstanding that the remedy

is barred by limitation. A debtor may pay the time barred debt
to the creditor. He cannot claim it back on the plea that it was
time barred.

A debtor who owes several debts to a creditor may pay a sum of

money to the Creditor. If there is no specific mention, then the
creditor can adjust the payment towards any of the debts,
including the one whose recovery is barred by limitation. A
barred debt can constitute a valid consideration for a fresh
contract.

Under Sec. 25(3) of the Contract Act, 1872, an agreement in

writing undertaking to pay a time barred debt is valid and
binding. But there are special cases in which, on the remedy
becoming barred by limitation, the right itself is extinguished
like the one contemplated in Sec. 27 of the Limitation Act, 1963
 (Jawaharlal Law Motumal Mamtani vs. Bhagohanchand
Motamal Mamtani, AIR 1981, Delhi 338 at P. 343).

Extinguishment of right:
The Limitation Act lays down a rule of substantive law in Sec. 27.
It declares that after the lapse of the period provided by this
enactment, the right itself is gone and the title ceases to exist, and
not merely the remedy.

If an owner, whose property is encroached upon, suffers his right to be

barred by the law of limitation the practical effect is the extinction of
his title in favour of the party in possession. It is of the utmost
consequence in India that the security which long possession affords
should not be weakened
As between private owners contesting inter so the title to lands,
the law has established a limitation of twelve years: after that time
it declares not simply that the remedy is barred, but that the title
is extinct in favour of the possessor.

When a person’s suit for possession of any property is barred by

limitation under the Act, his right to such property stands
extinguished:
Section 27, under this section, not only the ownership of one
person is extinguished, but an absolute ownership is also acquired
by the other person in adverse possession (Radhabai vs.
Anantrao, 9, Bom. 198).

It is well established proposition that payment of a time barred debt

is a valid consideration for transfer of property. Similarly, an
agreement in writing undertaking to pay a time barred debt is
lawful and binding. Again, a creditor can adjust a payment made
by a debtor who owes several debts, towards debt with had become
time-barred.
Shadi La, Chief Justice held in Nuruddin vs. Allah Ditta
(I.L.R. 13, Lah. 817 AIR 1932, Lah. 419).

“The rule of law is firmly established that debt does not cease
to be a debt because its recovery is barred by the Statue of
Limitation”. (First National Bank Ltd. Vs. Seth Sant Lai,
AIR 1959, Punj 328 at P. 330).

In considering whether a particular remedy is barred, one looks

not at the relief given but at the cause of action, that is, at the
necessary allegations which have to made and found before the
relief sought can be given. (Asaram vs. Budeshwar).
Q) 2 Once the time has began to run no subsequent disability
or inability Stops it. Discuss.

Introduction:
Time for limitation runs when the cause of action accrues.
However, certain exceptions were provided in Sections 4 to
8. Section 4 provides that if the period prescribed expires on
a day when the Court is closed, the application etc, may be
made on the day, the Court reopens. As per Section 5
condonation of delay is allowed on sufficient grounds.
Sections 6, 7& 8 allow extension of time in certain cases of
disability.
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.
Continuous running of time [Section 9]:
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 Cal. 1018, 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 Pat. 272 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 the 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.
(Section 12). 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 13). 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 15(5)). If the defendant is absent from India or in the
territories beyond India, under the administration of the Central
Government, the time upto which he has been absent shall be excluded
while computing the period of limitation
(Section 14). 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 15(1)). When an injunction or 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)). When notice is served before the institution of a suit,
the limitation shall be suspended during the period of notice
(Section 15(4)). The period of limitation shall be suspended during the
time for which the proceedings to set aside the sale has been prosecuted
in a suit for possession by purchaser at an execution sale
3)Condonation of delay under The Limitation Act, 1963
Meaning of Condonation
The term Condonation means that the offence (of ignoring the law of
period as prescribed by the Act) is impliedly disregarded and the matter
shall process as if no offence has been committed.
The Doctrine of Condonation of Delay
Condonation of Delay finds its mention in Section 5 of the Act which
elaborates upon Extension of prescribed period in certain cases.
According to it, any appeal or application may be admitted after the
prescribed period if the applicant/appellant is able to satisfy the Court
that they had "sufficient cause" for not instituting the
appeal/application in the prescribed period.
What is "Sufficient Cause"?
The term "sufficient cause" isn't defined explicitly and varies on a case-
to-case basis. The Court has a wide discretion in determining what
constitutes as sufficient cause, depending upon the facts and
circumstances of each case.
In cases regarding non-appearance, adjournment or stay of execution
of a decree, the cause must be just and adequate i.e. "sufficient"
otherwise these provisions will just be a way of incessantly prolonging
litigation. This principle has been advocated in furtherance of
pursuance of justice but it shouldn't deny someone of justice either.
In the case of G. Ramagowda v. Special Land Acquisition Officer,
it was held that "sufficient cause" is to be interpreted liberally so as to
pursue substantial justice.
Type of Jurisdiction
The Court has the discretion to condone the delay and admit the appeal.
The Court has discretionary jurisdiction and even though sufficient
cause has been shown, the party is not entitled to the condonation of
delay as the same is left to the Court's discretion.
Exceptions to Condonation of Delay - Section 5
There are certain exceptions relating to the ambit of the doctrine of
condonation of delay (Section 5):
1. The doctrine is applicable to Criminal Proceedings only.

2. The doctrine does not include "suit" and only covers appeals and
applications.

3. Other than an application under any of the provisions of Order XXI

of the Code of Civil Procedure, 1908. The doctrine covers all
appeals and applications.
Rule 3A
Rule 3A has been inserted by the Amendment Act of 1976. According
to it, an application must be filed in case an appeal is presented after
the expiry of the prescribed period. The application has to state
sufficient cause for causing a delay in filing an appeal. This rule was
recommended by the Privy Council.
The practice of admitting such appeal subject to an opinion regarding
limitation was disapproved by privy council, and it stressed the need of
adopting a procedure for settling the final determination of the question
as to limitation before admission of appeal.
The Supreme Court, in the case of State of M.P. v. Pradeep Kumar,
observed two objects of this rule:
• To inform the appellant filing a time-barred appeal that his action
won't be entertained unless it is accompanied by an application
substantiating sufficient cause.
• To communicate to the appellant that he may not have to be ready
as the condonation of delay is a condition precedent to hearing
their appeal.
General Principles under The Limitation Act
The two fundamental principles on which the Limitation Act primarily
rests are as follows:
1.Interest republicae ut sit finis lithium: It is for the public good that
litigation comes to an end after a long hierarchy of appeals. Continuing
to file further appeals may be equivalent to opening a floodgate which
causes more wrongs than rights.
2.Vigilantibus non dormentibus jura subvenitent: Law aids the
vigilant and not asleep. Law will not assist those who are careless of
their right. You should file the suit at the right time, during the
limitation period. Law will not respond to carelessness on your part.
General Principles of the Condonation of delay
The Supreme Court, in the case of Collector Land Acquisition v.
Mst. Katiji prescribed certain principles which need to be followed
while administering the doctrine of condonation of delay:

• Ordinarily, the litigant doesn't stand to benefit by instituting an

appeal late.
• If the Court is refusing to condone the delay, it can result in a
meritorious matter being discarded and the roots of justice being
defeated. However, when a delay is condoned, the highest that
can happen is that the case will be decided on merits, ie. a
decision based on evidence rather than on the technical and
procedural ground.
• Every day's delay must be explained" does not mean the doctrine
is to be applied in an irrational manner. It must be applied in a
sensible manner and not a literal one. Between substantial justice
and technical considerations, the former deserves to be
preferred for the other side cannot claim that injustice is done
because of a bona fide delay
 • There is no presumption that delay is caused deliberately. The
litigant has nothing to gain by resorting to delay and runs a serious
risk.
•

Instances where condonation can be granted

The following are the instances where condonation can be granted:
Subsequent changes in the law.
• Illness of the party: It includes the nature and severity of disease
and facts encompassing the failure to act.
• Imprisonment of the party: However, mere detainment is not
sufficient to cause. Varies on a case-to-case basis.
• Party is a pardanashin woman.
• Party belongs to a minority group with insufficient funds.
• Poverty or paupers. Party is a government servant: A government
servant may not have an incentive in fulfilling the task. Therefore,
a certain latitude is permissible in such a case.
• Delay due to the pendency of the writ petition.
• Party is illiterate.
• Other adequate grounds: Mistake of Court, Mistake of Counsel,
Delay in getting copies, mislead by rulings, etc.
Leading Judgments
Balakrishnan v. M.A. Krishnamurthy
By the means of this judgment, the need for a "rule of limitation"
was justified. Rule of limitation hasn't been incorporated to destroy
the right of parties, but to ensure that the parties don't resort to
dilatory tactics and seek their remedy promptly. The Law of
limitation fixes a life span for such legal remedy. Unending lifespan
would've led to unending uncertainty. The Court held that the law of
limitation is thus founded on public policy.
Ramlal, Motilal & Chotelal v. Rewa Coalfields Ltd.
In this case, the Court held that while interpreting Section 5 of the
Limitation Act, two important considerations need to be made:
. In case of expiry of prescribed period of prescription, a right in
favour of the decree- holder arises, according to which the decree
can be treated as binding between the parties.
If sufficient cause of delay in filing appeal has been given, it is the
Court's discretion to condone the delay and admit the appeal.
The fact that the appellant was misled by tools of the High Court in
computing the limitation period is sufficient cause under Section 5
to condone the delay. Appeal was granted.
Shakuntala Devi Jain v. Kuntal Kumari
In this case, the question before the Court was whether the delay in
filing appeal should be condoned under Section 5 of the Limitation
Act. As laid down in this case, Section 5 of the Limitation Act gives
Court discretion, which has to be exercised in a way in which
judicial power and discretion ought to be exercised upon well-
understood principles. The words "sufficient cause" need to receive
a liberal construction. The Bench of three Judges held that unless
want of bona fides of such inaction or negligence as would deprive
a party of the protection of Section 5 is proved, the application must
not be thrown out or any delay cannot be refused to be condoned.

The appeal was allowed and the delay was condoned.

Q. 3 “Limitation bars the remedy, but does not extinguish the
right.” Explain with exceptions, if any.

Generally, laws are divided into two categories

1. Substantive law
2. Procedural law
Substantive law deals with rights and liabilities of subjects, while
procedural law lays down procedure for enforcement of those rights
and liabilities. But a bold statement that substantive law determines
rights while procedural law deals with remedies is not wholly valid.
The reason is that neither the entire law of remedies belongs to
procedure nor the rights merely confined to substantive law. rights are
sometimes hidden in procedure.
There is thus no clear cut division between the two.
History of Limitation Act:

Hindu Jurisprudence had no law of limitation. The only law referred

to by Smith writers was a law of prescription which laid down a
persons of 20 years for acquisition of title, concentration being on
land and on immovable property.
Even under the British rule, there was no uniform law of limitation.
Three Supreme Courts established under the Royal Charter in three
Presidency Towns of Calcutta, Madras and Bombay administered
English Law of Limitation, while mofussil courts used to apply
different law, Acts and regulations.

It was in the year 1862 that for the first time, the Limitation Act was
made applicable to the whole of India which was replaced by the Acts
of 1871, 1877 and 1908. In 1963, the present Act has been enacted by
implementing various suffusions and recommendations of the Law
Commission of India.

Object:

The object and utility of law of limitation has never been a matter of
doubt or dispute. A law of limitation is a state of repose, peace and
justice. It is a matter of repose because it extinguishes State demands
and quiets title. It seeks to obtain peace and security by raising a
presumption that a right not exercised for a long time is non-existent.

It is intended to do justice inasmuch as it takes into consideration

ground reality that the right of parties should not be in state of
constant doubt, dispute or uncertainty.
1. The interest of the State requires that there should be an end to
litigation
2. The law assists the vigilant and not one who sleeps over his rights.
There are three cogent grounds in support of the law of
limitation:
1. Long format claims have more of cruelty than justice in them
2. A defendant might have list evidence to disprove a state claim
3. A person with good cause of action should pursue it with reasonable
diligence.
Limitation Bars Remedy:

The law of limitation, being a procedural law, merely bars the

remedy. It does not destroy primary or substantive right accrued in
favour of a party.
It does not destroy primary or substantive right accrued in favour of a
party.
The judicial remedy available for enforcement of such right is barred,
but the substantive right survives and continues to be available if there
are other ways or means for enforcing it.
Hence, if a debtor pays to his creditor time-barred debt, he cannot
claim it back on the ground that the creditor could not have filed a suit
against the debtor for recovery of the said amount.
Similarly, if a debtor owes several debts to a creditor, some of which
are barred by limitation, and makes payment of some amount without
any specification and the creditor adjusts the amount towards time-
barred debt, the debtor cannot object nor he can claim such amount.
A creditor may obtain payment of time-barred debt by a permissible
mode, e.g. a right of lien, valid contract. etc.

Limitation does not Bar Defence

The right of limitation bars an action and not defence. It is, therefore,
open to the defendant in a suit filed by the plaint to set up a plea in
defence which he may not be able to enforce by filing a
suit.

Thus, in a voidable transaction, the defendant may raise any plea for
enforcing the transaction, though he could not have filed suit for ints
enforcement on such plea. Similarly, in a suit to set aside a decree
obtained by fraud, the fraudulent character of decree can be set up as a
defence by the defendant, even after expiry of the period of limitation
for filing a suit.

Again, wrong description of property in the sledded does not debar

the defendant purchaser from setting up a defence and from protecting
his possession by showing that the property sold to him was the real
property sold, but it was wrongly described in the sale-deed. Again,
an attorney can avail right of lien for his fees, although a suit might
have been time-barred.
But if the expiry of limitation destroys the right itself, it can neither be
enforced by a suit not can be set up as a defence. Thus, the defendant
cannot raise a plea indolence of some inchoate or imperfect right
establishment of which depends upon a suit within a particular period
and the aid period has expired within which no suit is filed.

Criminal Proceedings:

As a general rule, “crime never dies”. Lapse of time, hence, does not
bar the right of the Crown to prosecute an offender. the provisions of
the Limitation Act, do not apply to liminal proceedings, except where
the express provisions have been made for that purpose.
Thus, there is no limitation for lodging a complaint of a criminal case,
unless the Code of Criminal Procedure, 1973 or the penal law creating
the offence itself prescribes the period within which a complaint is
required to be filed.

Proceedings under the Constitution of India:

A writ petition under Article 32 or Article 226 of the Constitution is

neither a suit, nor an appeal, nor an application within the meaning of
the Limitation Act. The provisions of the Limitation Act therefore, do
not apply to write petitions filed in the Supreme Court (Article 32) or
in High Courts (Article 226).

Article 133 of the Limitation Act, however, prescribes period of the

,imitation of 90 days for filing a special leave to appeal to the
Supreme Court.
Q. 4 Explain the provisions of the Limitation Act in respect of
condonation of delay.

Generally, laws are divided into two categories

1. Substantive law
2. Procedural law
Substantive law deals with rights and liabilities of subjects, while
procedural law lays down procedure for enforcement of those rights
and liabilities. But a bold statement that substantive law determines
rights while procedural law deals with remedies is not wholly valid.
The reason is that neither the entire law of remedies belongs to
procedure nor the rights merely confined to substantive law. rights are
sometimes hidden in procedure. There is thus no clear cut division
between the two.
History of Limitation Act:
Hindu Jurisprudence had no law of limitation. The only law referred
to by Smith writers was a law of prescription which laid down a
persons of 20 years for acquisition of title, concentration being on
land and on immovable property.
Even under the British rule, there was no uniform law of limitation.
Three Supreme Courts established under the Royal Charter in three
Presidency Towns of Calcutta, Madras and Bombay administered
English Law of Limitation, while mofussil courts used to apply
different law, Acts and regulations.

It was in the year 1862 that for the first time, the Limitation Act was
made applicable to the whole of India which was replaced by the Acts
of 1871, 1877 and 1908. In 1963, the present Act has been enacted by
implementing various suffusions and recommendations of the Law
Commission of India.
Object:

The object and utility of law of limitation has never been a matter of
doubt or dispute. A law of limitation is a state of repose, peace and
justice. It is a matter of repose because it extinguishes State demands
and quiets title. It seeks to obtain peace and security by raising a
presumption that a right not exercised for a long time is non-existent.

It is intended to do justice inasmuch as it takes into consideration

ground reality that the right of parties should not be in state of
constant doubt, dispute or uncertainty.
1. The interest of the State requires that there should be an end to
litigation
2. The law assists the vigilant and not one who sleeps over his rights.
There are three cogent grounds in support of the law of limitation:
1. Long format claims have more of cruelty than justice in them
2. A defendant might have list evidence to disprove a state claim
3. A person with good cause of action should pursue it with reasonable
diligence.
Condonation of Delay
Section 3: Every suit, appeal or application filed after the period of
limitation shall be dismissed.

So far as suit is concerned, the rule is absolute and unqualified. Any

suit instituted after the prescribed period of limitation has to be
dismissed inasmuch as there is no provisions for condonation of delay
in filing a suit.

In respect of appeals and applications, however, the Limitation Act,

provides for extension of time and condonation of delay in filing
appeals and applications. It provides that where the appellant or
applicant satisfies the court that the had a “sufficient cause” for not
preferring appeal or making application, the court may condone delay
and hear the case on merits.

While dealing with an application for condonation of delay, the court

will keep in view two conflicting considerations:
i. As fas as possible, the court would try to decide every cause on
merits rather than throwing it away on technical ground of delay
without entering into real issues in the case.
ii. The court must also consider an important aspect that non-filling of
appeal or application has created a valuable right in favour of he
opposite party which cannot be defeated or interfered
with lightly.
Sufficient Cause:
Section 5: the court to continue delay in filing appeal or application,
if the appellant or applicant satisfies the court that he had “sufficient
cause” for not preferring an appeal or marking an application within
such period.
But what is “sufficient cause”? The expression “sufficient cause” has
not been defined in the Act. It is, however, very wide. comprehensive
and elastic in nature. It is also construed liberally by courts so as to
advance the cause of justice.

Normally, a party who approaches a court of law with a grievance

should not be deprived of hearing on merits, unless there is something
to show that there was total inaction, gross negligence or what of bona
fides on his part.

Interpreting the words “sufficient cause” in pragmatic manner and by

adopting common sense approach, the court should try to do
substantial justice between the parties.
The question whether there was “sufficient cause” in not preferring an
appeal or application depends upon the fats and circumstances of each
cause, and no rule of universal application can be laid down.

Collector (LA) v Katiji

The Supreme Court laid down the following principles, while deal
with an appeal or application not preferred within the period of
limitation:
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 denied 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
seconds’ 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 bested right in
injustice being done because of non-deliberate delay.
5. There is no presumption that deals is occasioned deliberately, or on
account of culpable negligence, or on account of mala fides. A
litigant does not stand to benefit by reporting to delay. In fact he runs
a serious risk.
6. It must be grasped that judiciary is represented not on account of its
power to legalise injustice on technical grounds, but because it is
capable of removing induce and is expected to do so.