### Execution of Decree under the Code of Civil Procedure, 1908

1. Introduction:

The term execution refers to the enforcement or implementation of a decree passed by a

competent court. A decree-holder has the right to seek execution of a decree in his favor,
and the Civil Procedure Code, 1908 (CPC) provides a comprehensive mechanism for this in
Order 21 of the Code.

2. Relevant Provisions:

* Section 36 to 74 and Order 21 Rules 1 to 106 of the CPC deal with the execution of
decrees and orders.

* These provisions lay down the substantive and procedural law governing the manner in
which decrees are to be enforced.

3. Who May Apply for Execution (Section 146 and Order 21 Rule 16):

* The decree-holder or any person claiming under him by assignment, succession, or

otherwise.

* A legal representative of the decree-holder can also apply.

4. Against Whom Execution Can Be Sought:

* The judgment-debtor (the person against whom the decree has been passed).

* Legal representatives of the judgment-debtor (with limitations under Section 50).

5. Where Execution May Be Filed (Section 38):

Execution can be filed:

* In the court which passed the decree.

* In the court to which the decree is transferred for execution (Section 39).
 6. Modes of Execution (Order 21 Rule 30 to 46):

The CPC provides various methods, including:

* Delivery of property (movable or immovable).

* Attachment and sale of property.

* Arrest and detention in civil prison.

* Appointment of a receiver.

* Partition or execution of a document.

7. Procedure for Execution:

* Application for execution must be filed under Order 21 Rule 11.

* Must contain necessary particulars: details of decree, mode of execution sought, etc.

* The court examines the application and may issue notice to the judgment-debtor
(especially in money decrees).

8. Stay of Execution (Section 47, Order 21 Rule 26 & 29):

Execution can be stayed by:

* The executing court on sufficient cause being shown.

* An appellate court if an appeal is filed along with an application for stay.

9. Objections to Execution (Section 47):

* All questions relating to execution, discharge, or satisfaction of the decree shall be

determined by the executing court itself.

* No separate suit shall lie.

10. Limitations on Execution (Section 51 and 52):

* Execution by arrest and detention can only happen under certain conditions.
* Decrees cannot be executed against legal representatives beyond the property inherited.

11. Time Limit for Execution (Article 136 of the Limitation Act, 1963):
• The limitation period for filing an execution petition is 12 years from the date
of the decree.

12. Transfer of Decree for Execution (Section 39 to 42):

* The court may transfer a decree for execution to another competent court.

* Reasons include the judgment-debtor residing elsewhere or the property being situated in
another jurisdiction.

13. Conclusion:

Execution is a vital stage in civil litigation, ensuring the fruits of a successful suit are
realized. The CPC provides a robust and detailed framework in Order 21, balancing the
rights of the decree-holder with the protection of the judgment-debtor from arbitrary
enforcement.

### Different Modes of Executing a Decree (Under CPC, 1908)

Execution of a decree can be carried out in the following main modes as provided under
Order 21 of the CPC:

1. Delivery of Property (Rule 31 & 35–36)

Movable Property: By actual seizure and handover to the decree-holder.

Immovable Property: By removing the judgment-debtor or anyone obstructing

possession.
 2. Attachment and Sale of Property (Rule 43–66)

Both movable and immovable properties can be attached and sold to recover the
decretal amount.

3. Arrest and Detention in Civil Prison (Rule 37–40)

The judgment-debtor may be arrested and detained if he wilfully fails to pay a money
decree, subject to the court’s discretion.

4. Appointment of a Receiver (Rule 1 of Order 40)

A receiver can be appointed to manage the property or business of the judgment-debtor.

5. Execution of Document or Endorsement (Rule 34)

The court may execute or endorse a document on behalf of the judgment-debtor if he

refuses to comply.

6. Partition of Property (Rule 18)

If the decree relates to partition, the court may divide the property accordingly.

Conclusion:

These modes are designed to ensure effective enforcement of decrees while safeguarding
the legal rights of both parties.

“A court executing the decree cannot go behind the decree. It must take the decree as it
stands.” – Explain with exceptions.

### Introduction
The principle that “a court executing the decree cannot go behind the decree” is a
fundamental rule under the Code of Civil Procedure, 1908. This means the executing court
has no power to question the legality, correctness, or propriety of the decree. Its role is
limited to implementing the decree as it is.

• This principle is rooted in Section 47 of the CPC, which states that all questions
relating to execution, discharge, or satisfaction of the decree shall be determined by
the executing court and not by a separate suit.

### Meaning of the Statement

* The executing court must accept the decree as valid and binding, regardless of whether it
appears to be erroneous.

* The rationale is to prevent re-litigation and ensure finality of judgments.

Case Law:

In Kiran Singh v. Chaman Paswan (AIR 1954 SC 340), the Supreme Court held that the
executing court cannot question the correctness of the decree.

### Exceptions – When the Executing Court Can Go Behind the Decree

While the general rule is strict, there are certain exceptions where the executing court is
permitted to examine the decree:

#### 1. Decree is a Nullity

If the decree is passed by a court having no jurisdiction (territorial, pecuniary, or subject-

matter), it is considered a nullity, and the executing court can refuse to execute it.

* Example: If a revenue court passes a decree in a civil matter, it is a nullity.

* Case: Sunder Dass v. Ram Prakash (AIR 1977 SC 1201)

#### 2. Ambiguity in Decree

If the terms of the decree are ambiguous or unclear, the executing court can interpret them
to a limited extent to carry out execution.

#### 3. Decree Not Capable of Execution

If the decree is inherently incapable of execution (e.g., vague orders, non-specific reliefs),
the executing court may decline to execute it.

#### 4. Fraudulent Decree

If a decree is obtained by fraud or misrepresentation, the executing court may refuse to

execute it after proper determination.

#### 5. Conditional or Preliminary Decree

If certain conditions precedent mentioned in the decree are not fulfilled, the executing
court may postpone or deny execution.

### Conclusion

While the executing court is bound by the general principle of not questioning the validity or
correctness of the decree, it is not entirely powerless. In exceptional circumstances,
especially where jurisdictional errors, fraud, or ambiguity are involved, the court can
examine the decree.

➢ **In sum:** The rule ensures finality, but exceptions ensure fairness.

“Can the following orders be deemed as decree?” 10-mark (5×2) format:

### (a) Rejection of Plaint

Yes, it is a decree.

As per Explanation to Section 2(2) of the CPC, rejection of a plaint under Order 7 Rule 11
amounts to a decree, even if no formal adjudication on merits takes place. It is appealable
under Section 96 CPC.

### (b) Return of Plaint

No, it is not a decree.

Returning a plaint under Order 7 Rule 10 is considered an order, not a decree, because it
does not conclusively determine the rights of the parties. It is, however, appealable as an
order under Order 43 Rule 1(a).

### (c) Order Granting Alimony

No, it is not a decree.

An order for alimony (usually passed in matrimonial cases under personal laws) is generally
treated as an interlocutory order, not a decree. However, if passed in a suit under the CPC
(e.g., permanent alimony in a civil decree), it may form part of the decree. Context matters.

### (d) Dismissal of Suit

Yes, it is a decree.

When a suit is dismissed (either on merits or default), it amounts to a decree under Section
2(2) CPC because it conclusively determines the rights of the parties in that suit.

### (e) Any Adjudication from Which an Appeal Lies

Yes, it is a decree, if it satisfies Section 2(2).

If an adjudication conclusively determines the rights of the parties in a civil suit and is
appealable, it falls within the definition of a decree. However, not every appealable order is
a decree (e.g., interlocutory orders).

### **Grounds of Rejection of Plaint under CPC (Order VII Rule 11):**

A court may reject a plaint on the following grounds:

1. No Cause of Action (Clause a):

If the plaint does not disclose a cause of action, i.e., no legal right is shown to be violated,
the court can reject it.
 2. Relief Claimed is Undervalued (Clause b):

When the relief is undervalued and the plaintiff, after being given time, fails to correct the
valuation, the plaint is liable to be rejected.

3. Insufficient Stamp Duty (Clause c):

If the plaint is insufficiently stamped and the plaintiff fails to supply the required court fee
within the given time, it shall be rejected.

4. Barred by Law (Clause d):

If the suit appears from the statement in the plaint to be barred by any law (e.g., Limitation
Act), it shall be rejected.

5. Non-compliance with Legal Provisions (Clause e):

If the plaint is not filed in duplicate as required under the rules, it may be rejected.

6. Non-Jurisdiction (Clause f):

If the suit is filed in a court that lacks jurisdiction, and this is evident from the plaint, it can
be rejected.

Case Law Reference:

*Dahiben v. Arvindbhai Kalyanji Bhanusali (2020)* – Supreme Court held that if a plaint
does not disclose cause of action or is barred by law, it can be rejected at the threshold.

### Res Judicata vs Res Subjudice

#### 1. Meaning

* Res Judicata: Means “a matter already judged” – it bars re-litigation of a matter that has
been finally decided.

* Res Subjudice: Means “a matter under judicial consideration” – it stays a case when
another case on the same matter is already pending.
#### 2. Governing Section

* Res Judicata: Governed by Section 11 of the CPC, 1908.

* Res Subjudice: Governed by Section 10 of the CPC, 1908.

#### 3. Stage of Proceedings

* Res Judicata: Applies after a matter has been finally decided.

* Res Subjudice: Applies while a matter is still pending.

#### 4. Purpose

* Res Judicata: Ensures finality of litigation and prevents repeated suits.

* Res Subjudice: Prevents parallel proceedings and conflicting decisions.

#### 5. Number of Suits

* Res Judicata: One suit already decided, and a second suit is filed on the same issue.

* Res Subjudice: Two or more suits pending on the same issue.

#### 6. Effect

* Res Judicata: The second suit is dismissed.

* Res Subjudice: The second suit is stayed until the first is decided.

#### 7. Court’s Action

* Res Judicata: The court refuses to entertain the fresh suit.

* Res Subjudice: The court puts the second suit on hold (stay).

#### 8. Example
* Res Judicata: A sues B over a land dispute and loses. A cannot sue B again for the same
land.

* Res Subjudice: A sues B for contract breach. B files another case on the same contract –
the second case is stayed.

### Various Grounds for Filing a Reference Petition under CPC

A Reference Petition under Section 113 read with Order XLVI of CPC allows a subordinate
court to seek the opinion of the High Court on questions of law. The following are the key
grounds:

#### 1. Question of Law Involved

* The subordinate court must entertain a doubt about a question of law or its applicability.

* The law must be ambiguous, unclear, or unsettled in judicial precedent.

#### 2. Validity of Any Act, Ordinance, or Regulation

• If the case involves the validity of a Central or State Act, Ordinance, or Regulation,
and:

The court believes it to be invalid, and

Such validity is essential for disposal of the case, and

The Act is not already declared invalid by the High Court or Supreme Court,

Then the court must refer the matter to the High Court.

#### 3. Subordinate Court’s Inability to Decide

* If the subordinate court is unable to decide the case without clarification on a point of
law, it may refer the matter.

* This helps avoid miscarriage of justice due to a legal ambiguity.

#### 4. Not a Mere Hypothetical Question

• The question referred must have direct relevance to the case, not a speculative or
academic issue.
#### 5. Not Appealable

• The reference cannot be made if the issue can be resolved in an appeal or revision.

### Essential Conditions

* Pending Suit or Proceeding: A reference can only be made during the pendency of a
proceeding.

* Court’s Opinion Must Be in Writing: The court must state its own opinion and reasons for
referring the case.

* Reference to High Court Only: A reference can only be made to the High Court within
whose jurisdiction the subordinate court lies.

### Case Law Reference

Laliteshwar Prasad Singh v. S.P. Srivastava (2007) – Reiterated that reference under Section
113 must involve a real and substantial question of law.

### Difference Between Appeal and Reference.

1. Definition:

Appeal: A legal remedy where an aggrieved party challenges a decree or order.

Reference: A procedure where a subordinate court refers a question of law to the High
Court.

2. Who Initiates:

Appeal: Filed by a party to the case.

Reference: Made by the subordinate court.

 3. Governing Provisions:

Appeal: Sections 96 to 112 and Orders XLI to XLV of CPC.

Reference: Section 113 and Order XLVI of CPC.

4. Stage of Proceedings:

Appeal: Filed after the final decision or decree.

Reference: Made during the pendency of a case.

5. Purpose:

Appeal: To correct an error in judgment or decree.

Reference: To seek clarification on a doubtful point of law.

6. Right/Nature:

Appeal: It is a statutory right of the party.

Reference: It is discretionary for the court.

7. Subject Matter:

Appeal: Can involve both facts and law (in first appeal).

Reference: Involves only questions of law.

8. Court Involved:

Appeal: Heard by an appellate court (District Court, High Court, etc.).

Reference: Made only to the High Court.

9. Binding Effect:

Appeal: Appellate court’s decision binds the lower court and parties.
 Reference: High Court’s opinion binds the referring court.

10. Examples:

* Appeal: Challenging a civil court’s decree.

* Reference: Doubt about the constitutional validity of a statute.

### Can the power of revision exercise such powers in any case which has been decided by
the lower court?

No, the power of revision cannot be exercised in every case decided by a lower court.

Under Section 115 of the CPC, the High Court may exercise revision only if:

1. No appeal lies from the order or decision, and

2. The lower court has:

Exercised a jurisdiction not vested in it by law, failed to exercise a jurisdiction so vested, or

acted illegally or with material irregularity in exercising its jurisdiction.

So, revision is limited to jurisdictional errors and non-appealable orders.

### Foreign Judgment under the Code of Civil Procedure (CPC), 1908)

#### 1. Definition (Section 2(6))

A foreign judgment is defined as a judgment of a court situated outside India and not
established by the authority of the Central Government.
#### 2. Relevancy of Foreign Judgment (Section 13)

A foreign judgment is conclusive regarding any matter thereby directly adjudicated upon
between the same parties, except in the following cases:

##### Exceptions – When Foreign Judgment is Not Conclusive:

1. Not Pronounced by a Competent Court.

2. Not Given on Merits of the Case.

3. Appears to be Founded on an Incorrect View of International Law or Indian Law.

4. Opposed to Natural Justice.

5. Obtained by Fraud.

6. Sustains a Claim Founded on a Breach of Indian Law.

#### 3. Presumption as to Foreign Judgment (Section 14)

The court shall presume, upon production of a certified copy of a foreign judgment, that it
was pronounced by a competent court, unless proven otherwise.

#### 4. Enforcement of Foreign Judgment

There are two methods for enforcing a foreign judgment in India:

• (a) Execution (Section 44A):

If the judgment is from a reciprocating territory, it can be executed directly in India like a
domestic decree, by filing it in a District Court.

• (b) Filing a Suit:

If from a non-reciprocating territory, a fresh suit must be filed on the basis of the foreign
judgment.

#### 5. Reciprocating Territories

* The Central Government notifies which countries are reciprocating territories.

* Judgments from these countries’ superior courts can be directly enforced under Section
44A.

#### 6. Case Law Reference

• R. Viswanathan v. Rukn-ul-Mulk (1963): Supreme Court held that a foreign judgment

must be on merits and in compliance with natural justice to be enforceable.

### Conclusion:

Foreign judgments are recognized under Indian law, but only if they meet the legal
standards of fairness, jurisdiction, and compatibility with Indian law.

### Can the defendant pray for an order of injunction?

Yes, under the Code of Civil Procedure, a defendant can pray for an order of injunction.

According to Order XXXIX Rules 1 and 2 CPC, although generally sought by plaintiffs,
injunctions can also be granted on the application of a defendant if he shows sufficient
cause to protect his rights or prevent injustice. Courts grant such injunctions to maintain
the status quo or prevent irreparable harm.

In Krishna Ram Mahale v. Shobha Venkat Rao (1989 AIR 2097), the Supreme Court upheld
that such relief is not exclusive to plaintiffs.

### Can the plaintiff pray for an appointment of commissioner when injunction is refused?

Yes, under the Code of Civil Procedure, a plaintiff can pray for the appointment of a
commissioner even if an injunction is refused. As per Order XXVI Rule 9 CPC, the court may
appoint a commissioner for local investigation to ascertain facts such as possession,
boundaries, or physical condition of property—irrespective of the grant or refusal of an
injunction.

The refusal of injunction does not bar the court from collecting evidence through a
commissioner if it aids in adjudication. This has been upheld in Ram Kishore Sen v. Union
of India (AIR 1966 SC 644), where the Supreme Court emphasized the court’s discretion to
appoint a commissioner to assist in reaching a just decision.

Thus, the plaintiff may seek such an appointment to support their case even if interim relief
like injunction has been denied.

### Short Note: Inherent Powers of the Court under the Code of Civil Procedure

Meaning:

Inherent powers are those powers not expressly provided in the Code, but are necessary to
meet the ends of justice or to prevent abuse of the court’s process. These powers ensure
that the court is not rendered helpless in situations where the Code is silent.

### Statutory Provision:

The inherent powers are codified under Section 151 of the Code of Civil Procedure, 1908,
which states:

➢ *“Nothing in this Code shall be deemed to limit or otherwise affect the inherent
power of the Court to make such orders as may be necessary for the ends of justice
or to prevent abuse of the process of the Court.”*

### Nature of Inherent Powers:

* Discretionary and extraordinary in nature.

* To be used sparingly and only when no specific remedy is available under the Code.

* Cannot override express provisions of CPC.

### Illustrative Uses of Inherent Powers:

1. Restoration of proceedings where delay is not deliberate.

2. Consolidation of suits to avoid conflicting judgments.

3. Stay of proceedings to avoid multiplicity of litigation.

4. Recall of orders obtained by fraud or misrepresentation.

5. Granting injunctions in exceptional cases where Order XXXIX does not apply.

### Limitations:

* Cannot be used to contradict express provisions of the CPC.

* Cannot create new rights or remedies outside the scope of law.

* Must be exercised in accordance with judicial principles, not arbitrarily.

### Case Law:

In Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal (AIR 1962 SC 527), the
Supreme Court held that courts can exercise inherent powers even to grant temporary
injunctions in cases not covered by Order XXXIX, if justice demands it.

### Conclusion:

Section 151 CPC acts as a safety valve, allowing civil courts to act justly and equitably even
in the absence of specific provisions. However, this power must be used cautiously, and
only to uphold the integrity of judicial process.

### Short Note: Incidental Proceedings under the Code of Civil Procedure

Meaning:
Incidental proceedings are those proceedings which arise in the course of a main civil suit
and are necessary for the just and effective adjudication of the case. These are not directly
related to the main claim but help in facilitating the process of justice.

Legal Basis:

The provisions relating to incidental proceedings are scattered across the CPC, including
sections and orders such as:

* Section 94 (Supplemental proceedings)

* Section 151 (Inherent powers of the court)

* Orders XXVI (Commissions), XXXIX (Temporary Injunctions), and XL (Receivers)

Examples of Incidental Proceedings:

1. Appointment of a Commissioner (Order XXVI)

To investigate local facts or take evidence on commission.

2. Grant of Temporary Injunctions (Order XXXIX)

To maintain status quo until final disposal.

3. Appointment of a Receiver (Order XL)

To protect property during the pendency of the suit.

4. Attachment before judgment (Order XXXVIII)

To prevent the defendant from defeating the decree by disposing of property.

5. Supplemental proceedings under Section 94

Including arrest before judgment, granting security, etc.

6. Inherent Powers of the Court (Section 151)

Used to pass incidental orders where no express provision exists but justice demands
intervention.

Importance:
* Incidental proceedings ensure the smooth conduct of suits.

* They help preserve the rights of parties during litigation.

* Prevent abuse of process and frustration of decrees.

* Aid in fact-finding and enforcement of judicial decisions.

Case Law:

In Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal (AIR 1962 SC 527), the
Supreme Court upheld that the court can exercise inherent powers to issue incidental
orders not explicitly provided for in the CPC, if required in the interest of justice.

### Short Note: Institution of Suit under the Code of Civil Procedure

Meaning:

The term “institution of suit” refers to the formal commencement of legal proceedings in a
civil court by a party seeking relief against another.

Statutory Provision:

The process for institution of suits is primarily governed by Section 26 and Order IV Rule 1
of the Code of Civil Procedure, 1908.

### 1. Section 26 CPC – Institution of Suit

* States that every suit shall be instituted by the presentation of a plaint.

* It must be proved by an affidavit (as per 2002 amendment), ensuring the authenticity of
the statements in the plaint.

### 2. Order IV Rule 1 – Formal Requirements

* A suit is instituted by filing a plaint before a competent court.

* The plaint must comply with the conditions laid down in Order VI (pleadings generally)
and Order VII (plaint structure).

* Necessary documents must be attached, and requisite court fee paid.

### Essential Elements for Institution of Suit:

* Jurisdiction (territorial, pecuniary, and subject-matter) must be satisfied.

* Cause of action must exist.

* Parties to the suit must be properly described.

* Relief claimed should be clearly stated.

### Verification and Affidavit:

* The plaint must be verified as per Order VI Rule 15.

* An affidavit must accompany the plaint under Order VI Rule 15-A.

### Significance:

* It marks the formal beginning of the suit and triggers procedural timelines like summons,
written statement, etc.

* Lays the foundation for adjudication and enforcement of civil rights.

* Ensures that the court is seized of the matter and can pass appropriate interim or final
relief.

### Case Law:

In K.K. Modi v. K.N. Modi (1998) 3 SCC 573, the Supreme Court emphasized that proper
institution and framing of the suit is vital for efficient and fair adjudication.

### Consequences of appearance and non-appearance of parties in suits.

### Introduction

The appearance or non-appearance of parties in civil suits plays a critical role in the
administration of justice under the Code of Civil Procedure, 1908. The relevant provisions
are laid out in Order IX (Rules 1 to 14) of the CPC.

### I. Consequences of Appearance of Parties

1. Both Parties Appear (Order IX Rule 1):

* When both the plaintiff and defendant appear, the suit proceeds normally.

* Issues are framed, evidence is recorded, and the matter is decided on merits.

2. Appearance Through Counsel (Rule 1 Explanation):

* Appearance can be in person or through a duly authorized pleader.

* Parties must appear on the date fixed for hearing or any adjourned date.

### II. Consequences of Non-Appearance of Parties

#### 1. Plaintiff Fails to Appear (Order IX Rule 3 & 4):

• When Defendant Appears and Plaintiff Does Not:

* The court may dismiss the suit (Rule 3).

* If dismissed under Rule 3, the plaintiff can file a fresh suit unless barred.

* If the dismissal was due to default, an application for restoration (Rule 4) can be filed
within 30 days under Order IX Rule 4 r/w Section 151 of CPC.

#### 2. Defendant Fails to Appear (Order IX Rule 6):

• When Plaintiff Appears and Defendant Does Not:

* The court may proceed ex parte against the defendant (Rule 6).

* Ex parte decree can be passed based on plaintiff’s evidence.

#### 3. Both Parties Do Not Appear (Order IX Rule 8):

* The court shall dismiss the suit for default.

* The dismissal is akin to non-prosecution by the plaintiff.

### III. Remedies Against Ex Parte Decree

1. Application to Set Aside Ex Parte Decree (Order IX Rule 13):

* Defendant can apply to set aside the ex parte decree within 30 days.

* Must show:

* Sufficient cause for non-appearance.

* Application supported by affidavit and evidence.

2. Appeal or Review (Section 96(2), Order XLVII):

* An ex parte decree can also be appealed.

* A review may be sought on the ground of new evidence or error.

### IV. Restoration of Suit

* If a suit is dismissed due to default of appearance (Order IX Rule 9), the plaintiff can file
an application for restoration.

* Must show sufficient cause.

* Filed under Order IX Rule 9 r/w Section 151 CPC.

### V. Judicial Discretion and Sufficient Cause

* Courts exercise discretion in deciding if “sufficient cause” is made out.

* The term is not defined in the CPC and varies with circumstances.

* Courts lean towards giving parties a chance to contest on merits unless gross negligence
or malafide is shown.

### Conclusion
The CPC balances the right to a fair trial with the need to prevent delays. Appearance
ensures orderly conduct of proceedings, while non-appearance invites consequences,
including dismissal or ex parte decrees. However, adequate remedies exist to ensure
justice if non-appearance was due to valid reasons.

### Provisions under the Code of Civil Procedure, 1908 (CPC)** for the stated scenarios:

## (a) When Neither Plaintiff Nor Defendant Appears

### Provision: Order IX Rule 8 of CPC

* If neither party appears when the suit is called for hearing, the court may dismiss the suit.

* This dismissal is for default of appearance, not on merits.

### Legal Consequence:

* It is treated as if the plaintiff has abandoned the suit.

* No decree is passed in favor of either party.

## (b) When Defendant Appears and Plaintiff Does Not

### Provision: Order IX Rule 3 of CPC

• If the plaintiff is absent and the defendant is present, the court may dismiss the suit.

### Legal Consequence:

* Dismissal is due to non-prosecution by the plaintiff.

* Plaintiff may file a fresh suit, unless barred by limitation or any law.

## © When Plaintiff Appears and Defendant Does Not

### Provision: Order IX Rule 6 of CPC

• If the plaintiff appears and the defendant is absent, and summons has been duly
served:

* The court may proceed to hear the case ex parte.

* Evidence is taken from the plaintiff, and an ex parte decree may be passed.

### Legal Consequence:

* The decree is binding unless set aside.

* The defendant loses the right to be heard unless valid reasons for absence are shown.

## (d) Remedy Open to the Party in Such Cases

### 1. Dismissal Due to Absence of Both Parties (Order IX Rule 9):

* Plaintiff may apply to restore the suit by showing sufficient cause.

* Application under Order IX Rule 9 r/w Section 151 CPC.

### 2. Dismissal When Plaintiff is Absent (Order IX Rule 4):

* Plaintiff may file for restoration.

* Must prove sufficient cause for non-appearance.

### 3. Ex Parte Decree Against Defendant (Order IX Rule 13):

* Defendant may apply to set aside the ex parte decree.

* Must show:

* Non-service of summons, or

* Sufficient cause for non-appearance.

* Time limit: 30 days from the date of knowledge of the decree.

### 4. Alternative Remedies:

* Appeal (Section 96(2)) – against ex parte decree.

* Review (Order XLVII) – if new facts emerge or error is apparent.

## Conclusion

The CPC provides a structured approach to deal with the absence of parties in a civil suit to
ensure justice is not defeated due to procedural lapses. While the consequences are strict
to ensure discipline, the law also provides remedies to prevent injustice.