CIVIL PROCEDURE CODE II

COURSE DESCRIPTION

This is a mandatory course as per Bar Council Regulations and this course has
been designed as follows.

In CPC 1 we explored several of the conceptual themes arising within civil

procedure such as the following:

(a) The difference between substantive law and procedural law.

(b) The difference between questions of law and questions of fact.

(c) The goals of procedural systems.

(d) The factors that influence procedural systems.

(e) How procedural systems can be categorised.

(f) The adversarial – inquisitorial dichotomy.

(g) Comparative civil procedure and its benefits.

(h) What does procedure have to do with Justice?

(i) The importance of Procedure.

(j) The History of Indian Civil Procedure.

(k) Peculiar problems with Indian Civil Procedure and the Indian Civil Justice
System.

Students explored these themes further in their projects which offered various
theoretical perspectives. In CPC II, however, we will be looking at the “nuts-and-
bolts” of advocacy on the civil side and projects allocated to the students will also
be “practical” as opposed to the “theoretical” ones explored in CPC1. We will
cover the remainder of Sections 1 to 35 B and Orders 1 to 20A –the entire trial
court procedure from the stage of filing of the plaint, as the suit proceeds from
stage to stage, until the judgment is pronounced by the trial court and the decree
is written. Thereupon key portions of the remainder of the Code will be covered
in particular: Appeals, Review, Revision, Reference, Special Types of Suits and
Execution.

The materials we rely upon are primarily the statutes concerned namely, the

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Code of Civil Procedure, 1908, and related statutes such as the Commercial
Courts Act, 2015. We also rely extensively on cases decided by the Supreme
Court and some cases of the High Courts. Students must note that since
important changes have been brought about by virtue of the Commercial Courts
Act, 2015, insofar as commercial cases are concerned, they will be expected to
understand and appreciate at each stage of the civil proceeding, the differences
in the conduct of regular civil suits and the conduct of commercial cases.

Students will be furnished copies of the Handouts (as was done in CPC1 wherein
Handouts were furnished) at the start of the course which will outline in detail
the topics covered, the relevant statutory provisions, the cases to be discussed
and the readings for each topic. For each class, students will be expected to read
the cases mentioned in the Handouts. Additional reading will also be indicated,
usually the relevant chapters from Takwani’s Textbook on Civil Procedure.

In a typical class, the Course Teacher will first outline the broad principles under
the topic being studied and then the class will read the statutory provisions. We
then move on to case-law that illuminates the principles underlying the statutory
rules. For each class, 5 students will be identified before-hand and will be
required to lead the discussion in that class. The other students will also be
expected to have read the materials and to actively participate in classroom
discussion. Students who have worked on or are working on a project that
involves the topic under consideration might be required to make a presentation
in class- this will help the class explore several tangential and intersecting
themes. For example, whilst studying Pleadings, a student who has made a
project on Pleadings under the Commercial Courts Act, 2015, might make a
presentation upon the said topic. Socratic discussion is welcomed. There will be
Mock-Tests wherein students will be expected to solve practical-type questions.

In contrast with the approach in CPC1, since students would have already had
considerable exposure to the relevant statutes and materials, a much higher level
of self-study is expected and required in CPC2: whether it be as regards reading
cases or statutory provisions.

COURSE OBJECTIVE(S):

From the rules of civil procedure to the principles of civil procedure

The Law of Civil Procedure in India is the legacy of some of the finest English
jurists of their time who, working with the pre-existing English common law on
the subject, strove to create comprehensive and precise codes laying down the
procedure to be followed for the conduct of civil cases. Their work was
painstaking, pioneering and infused with the highest degree of scholarship and
sophistication.

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We Indians have always been in awe of the Indian Evidence Act, 1872, and the
Code of Civil Procedure, 1908, which have to be read together to understand civil
procedure. The Law Commission Reports are full of praise for these enactments.
In spite of several reports over the years that seek to review and effect changes to
the existing system of civil procedure, it is recognised that the Evidence Act is “a
commendable piece of legislation”, the Act being seen as “an embodiment of all
that is truly excellent.” The CPC is also similarly admired. The Law Commissions
have always felt that “the ship is well-designed, fundamentally sound…” The only
serious challenges to the system that the Law Commissions have considered over
the years have been with regard to the viability of resorting to an indigenous
system of procedure or jumping over to an inquisitorial system as existing in
Continental Europe- both of which have been rejected as impracticable.

Yet, in the face of the constant crisis of the Civil Justice System caused by
arrears and delays, there is the recurrent urge to review our procedures and
somehow find ways of making the system more effective. Whilst several changes
have been recommended and effected over the years, the “ship” remains
fundamentally the same and we are forced to conclude that the problem is one of
infrastructure, not procedure.

But even though the ship may be fundamentally sound, we may be at fault for
not running it properly. The provisions of the Codes are “insufficiently theorised”
and we are yet far away from arriving at the Principles of Indian Civil Procedure
as opposed to a mass of rules and cases that have not been adequately
reconciled. The great disadvantage of codification is that very often, the principles
and purposes behind the black-letter rules are not expressly stated, and are
further difficult to arrive at with large and complex statutes like the CPC and the
Evidence Act. Thus, when courts are called upon to apply the rules in a given
case, or when litigants/lawyers wish to predict the outcomes of particular actions
based on the rules, the interpretive issues that arise are not adequately resolved,
leading to improper/insufficient application/understanding of the rules and
consequently, lack of predictability and uncertainty. Only when a clear set of
principles underlying the Codes and the decisions rendered thereunder are
articulated, proper application of the procedural law can take place. This lack of
clarity, and the insufficient and incorrect application of the Codes, add to delays
in dispute resolution, and also affects the quality of dispute resolution that the
Civil Justice System delivers.

In addition to “micro theorisation” as discussed above, i.e., arriving at a set of

principles that best explain the rules and decided cases under them, India would
benefit greatly from taking into account the vibrant discourse being conducted by
procedural law scholars around the world, wherein Procedure is being theorised
at a “macro” level. A sizable body of literature is developing on the “macro”
analysis of procedural systems- wherein broader questions as to procedural
systems as a whole are being considered. Countries have the similar agenda of
designing procedural systems that best achieve the goals of the system - such as
accurate resolution of disputes - with the minimum amount of time, money and

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vexation. Thus, the discussion that is conducted in one country can easily be
borrowed by others, and this is particularly true of countries that follow the
Anglo-American model of civil procedure. On this count also, theorisation and
scholarship in India is lacking.

Procedural law can be difficult. There is a huge mass of technical rules that need
to be mastered. The object and purpose of the rules are very often not obvious
from a bare reading of the rules and the rules are often drafted in archaic
language. The rules seem counter-intuitive at times. The rules are inter-
connected in complex ways and cannot be easily sub-divided. The CPC has to be
read with the Evidence Act, as well as other procedural codes relating to
limitation, court-fees, specific relief, etc. Crucially, comprehensive text-books that
explain in a simple and easily understandable manner all the rules of the CPC
and Evidence Act are easily found. Sarkar’s Code of Civil Procedure continues to
be revised and reprinted and is a standard reference book for practitioners and
students. The CPC is reproduced with voluminous case-law under each section,
primarily from the High Courts. The cases are not reconciled, and no principles
are arrived at that clearly explain the section or any interpretive issues that arise
therefrom. Driven by despair, some students may rush to get Mulla’s Key to
Indian Practice or CK Thakker’s Civil Procedure – both elegant well-written
books- but too thin and perhaps not comprehensive enough – only basic issues
under each topic are explained without going in too deep.

In order to resolve interpretive issues that arise within the Codes, one inevitably
has to study the provision, the surrounding context and the statute as a whole,
and try to glean therefrom the purpose or rationale of the rule. Once you get to
the purposes of the rule, then applying it becomes much easier. With the
common-law, every principle is based on a judgment or series of judgments and
therefore it is not difficult to get to underlying rationales and purposes-since this
would be articulated in the judgment. With statutes, very often the purpose and
rationale for rules will not be obvious from a plain reading of the rule. This is
especially true of the Evidence Act and CPC which often contains rules the
reasons for which are not obvious. What compounds the problem even more is
the sheer volume and complexity of the procedural codes.

Ronald Dworkin argues that the law is not just a set of rules- the law is the set of
principles that underlie the entire body of rules and the precedents decided
under them. In order to really know your law, you need to know not just your
rules and cases, but the principles which underlie them. Considered from this
perspective, it is clear that we are still far away from arriving at the Principles of
Indian Civil Procedure. Any textbook on the CPC will evidence the fact that we
are still straddled with a mass of rules and cases. Many areas of the CPC and
Evidence Act are yet to attain conceptual clarity.

After this rather elaborate warning, we come to the objects of this course.
Primarily, it is to ensure that students have attained a good deal of familiarity
and understanding of the black-letter rules of Indian civil procedure (“the trees”).

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Students are to be adept at applying the basic rules of civil procedure to draft,
analyse and argue cases at trial and appellate levels. Secondly, it is also to gain
a sense of the underlying concepts and principles (“the forest”) to sharpen our
understanding of the rules and also so that we may appreciate the complexity
and design of procedural systems from a broader perspective. Such an approach,
it is hoped, would bring greater clarity and make the subject more interesting.

Teaching Method

Students will be required to read the cases and materials indicated in the
Handouts as per the suggestions given therein and may also wish to read the
“Additional Reading” indicated before attending the classes. Civil Procedure by
C.K. Takwani, 8th Edition, will be the guiding text-book for the course but will be
mostly used as “Additional Reading”.

The End-of-Trimester examinations will permit the students to carry into the
examination hall the following:

● Bare Acts such as the CPC, Evidence Act, Limitation Act, etc.

● Handwritten classroom notes.

● Course Handouts given by the teacher.

EVALUATION PATTERN

Project 25 marks

Viva-Voce 10 marks

Class Participation 05 marks

End of Trimester Exam 60 marks

TOTAL 100
marks

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Week I

Session 1 (2 hours)

Summary of Fact-finding techniques that parties can use to detect,

collect and place on record evidence in the case

DOCUMENTS

 Document in possession of party: produce original with copy and

include in the list of documents under Order 7 Rule 14or Order 8 Rule
1A+ ensure marked in evidence through one of the witnesses called. Last
chance to produce originals if not produced with pleadings: at or before
settlement of issues (Order 13 Rule 1).

 Document which is a copy sought to be produced where original with

opponent: Mention it in list of documents (Order 7 Rule 14 or Order 8
Rule 1A) + Issue Notice to Produce under sections 65/66 Indian
Evidence Act, 1872, read with Order 12 Rule 8 (Form 12)CPC + get
xerox marked through a witness.

 Document in possession of opponent to be produced by order of

court:Make an application for an order under Order 11 Rule 14 or under
Order 16 Rule 14 r/w Rule 21.

 Document in the custody of a third party stranger: make an

application under Order 16 Rule 14.

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 Document in the custody of another court: Application under Order 13
Rule 10.

 Document in the custody of another person present in court: Seek

order under Order 16 Rule 7.

 How to know which documents are/were in the custody of the

opponent? Make an application for discovery on affidavit under Order 11
Rule 12 for discovery of documents on oath.

 How to know whether opponent has a particular document in

question? Make application under Order 11 Rule 19 (3).

 How to get inspection of documents referred to in pleadings or

affidavits? Give notice under Order 11 Rule 15.

 How to get admitted signature of opponent? Seek order under Section

73 Indian Evidence Act, 1872.

 Residuary: Use Section 165.

ORAL EVIDENCE

 Evidence of own willing party/witness: Make sure present in court on

the date of his/her evidence (Order 16 Rule 1A).

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 Evidence of own recalcitrant witnesses: Name in list of witnesses under
Order 16 Rule 1 and get summonses issued and call at trial.

 Evidence of party opponent: Make application under Order 16 Rule 14

read with Rule 21.

 Evidence of strangers: Make application under Order 16 Rule 14 or get

summonses issued under Order 16 Rule 1.

 How to get to know the oral evidence of opponent before the trial?
Make an application for discovery on interrogatories under Order 11 Rule
1 and use them during the trial under Rule 22.

 How to get a witness recalled? Make an application under Order 18

Rule 17 and try.

 How to get the evidence of a witness who is sick or unable to attend

court for any reason? Make an application for appointment of a
commissioner under Section 75 read with Order 26.

 Residuary: Section 165.

OTHER

 How to get the judge to conduct a spot inspection? Apply under Order
18 Rule 18.

 How to get a local investigation done, or a scientific investigation or

get accounts examined? Make an application under Section 75 read
with Order 26.

 Can the witnesses’ demeanor be evidence? Yes, ask that it be recorded

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 under Order 18 Rule 12.

 How to make an affidavit part of the evidence ? Make an application

for an order under section 30.

MODULE 1: JUDGMENT AND DECREE

Week I (Contd.)

Session 2 & 3 (4 hours)

JUDGMENT AND DECREE

 Section 33, Order XX.

 What is the difference between a judgment, a decree and an order?

Definitions in Section 2(2), 2(9) and 2(14).

 What are the requirements of a valid judgment?

 The judgment shall be pronounced in open court (Order 20 Rule 1);

 Within 30 or 60 days (in exceptional cases) from the date hearing was
concluded (Order 20 Rule 1);

 It shall be dated and signed by the judge in open court at the time of
pronouncement (Order 20 Rule 3);

 It should contain a concise statement of the case, the points for

determination, the decision thereon and the reasons for such decision.

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 (Order 20 Rule 4).

 It shall state its finding on each issue (Order 20 Rule 5).

 If the formalities of a judgment are not complied with, is the judgment

vitiated?

 Surendra Singh vs State of UP AIR 1954 SC 194but note Order 20 Rule

2.

 Smt. Swaran Lata Ghosh vs HK Banerjee 1969(1) SCC 709- recording of

reasons essential. Judge must record the ultimate mental process leading
from the dispute to its resolution.

 Are statements recorded by the court as to what transpired in court

conclusive? State of Maharashtra vs Ramdas Shrinivas Nayak (1982) 2
SCC 463.

 Can a judgment be corrected once it is signed? Order 20 Rule 3.

 What should be contained in a decree? Order 20 Rule 6.

 Who draws up the decree?

 Can an appeal be filed against the decree without a copy of the same if
decree is not yet drawn? Order 20 Rule 6A.

 If the previous judge has vacated office before signing the decree can his
successor sign it? Order 20 Rule 8.

 What are the requirements of a decree for recovery of immovable property?

Order 20 Rule 9.

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  What are the requirements of a decree for delivery of movable property?
Order 20 Rule 10.

 When can the defendant seek payment of the decretal sum by installments
or seek postponement? Order 20 Rule 11.

 Can the court decree future mesne profits even if not prayed for? Order 20
Rule 12.Gopalakrishna Pillai vs Menakshi Ayal AIR 1967 SC 155.

 Why are mesne profits limited to 3 years under Order 20 Rule 12?
Chittoori Subbanna vs Kudappa Subbanna AIR 1965 SC 1325.

 What are the requirements of a decree for specific performance of contract

for the sale or lease of immovable property? Order 20 Rule 12A.

 What are the requirements of a decree in certain other types of suits?

Administration suits - Order 20 Rule 13. Pre-emption suits- Order 20
Rule 14. Suits for dissolution of partnership- Order 20 Rule 15. Suits for
account between principal and agent – Order 20 Rule 16. Suit for
partition of property or separate possession or share therein – Order 20
Rule 18. Decree where set-off or counter-claim allowed- Order 20 Rule
19.

 General principles with regard to preliminary and final decrees:

 A preliminary decree is not executable unless a final decree is applied for

and passed. Sankar Balwant Lokhande vs Chandrakant Balwant
Lokhande AIR 1995 SC 1211.

 If appeal against preliminary decree succeeds, the final decree

automatically falls to the ground.

 Residuary power to pass preliminary decree – Order 20 Rule 16.

BASIC READING

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  Section 33, Order XX.

 Surendra Singh vs State of UP AIR 1954 SC 194

 Smt. Swaran Lata Ghosh vs HK Banerjee 1969(1) SCC 709

 State of Maharashtra vs Ramdas Shrinivas Nayak (1982) 2 SCC 463.

 Gopalakrishna Pillai vs Menakshi Ayal AIR 1967 SC 155.

 Chittoori Subbanna vs Kudappa Subbanna AIR 1965 SC 1325.

 Sankar Balwant Lokhande vs Chandrakant Balwant Lokhande AIR 1995

SC 1211.

ADDITIONAL READING

 Takwani, Part 2, Chapter 15

Week II

Session 4 (2 hours)

INTEREST

 Section 34; Order 24 Rule 3.

 What is interest? How would you define it?

 What are the 3 stages when interest can be allowed and what are the
parameters for each type?

 Section 34.

 Union of India vs Watkins Mayor and Co AIR 1966 SC 275.

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  Mahesh Chandra Bansal vs Krishna Swaroop Singhal 1997 (10) SCC
681.

 What are the salient features of the Interest Act, 1978?

BASIC READING

 Section 34. The Interest Act, 1978.

 Union of India vs Watkins Mayor and Co AIR 1966 SC 275.

 Mahesh Chandra Bansal vs Krishna Swaroop Singhal 1997 (10) SCC 681.

ADDITIONAL READING

 Chapter 15(4), Takwani

Session 5 (2 hours)

COSTS

 Sections 35, 35A and 35B; Order XXA, Order 20 Rule 6; Karnataka
Civil Rules of Practice 1967.

 What are the differences between award of costs under sections 35, 35A
and 35B?

 The general principle is that costs should follow the event. Jugraj Singh
vs Jaswant Singh 1970(2) SCC 386; Kali Prasad Singh vs Ram Prasad
Singh (1974) 1 SCC 182.

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  Ashok Kumar Mittal vs Ram Kumar Gupta (2009) 2 SCC 656: under
section 35 award of costs is discretionary; the primary object is to
recompense a litigant for the expenses incurred by him in the litigation; it
is paid by the loser to the winner; present system of meagre costs
deprecated.

 T.Aravindam vs TV Satyapal (1977) 4 SCC 467: in frivolous and

vexatious cases trial judge should impose punitive costs under section
35A.

 What is the procedure adopted for taxation of costs? Rules 99, 100,
Karnataka Civil Rules of Practice 1967.

BASIC READING

 Sections 35, 35A and 35B; Order XXA, Order 20 Rule 6; Karnataka Civil
Rules of Practice 1967.

 Jugraj Singh vs Jaswant Singh 1970(2) SCC 386; Kali Prasad Singh vs Ram
Prasad Singh (1974) 1 SCC 182.

 Ashok Kumar Mittal vs Ram Kumar Gupta (2009) 2 SCC 656

 T.Aravindam vs TV Satyapal (1977) 4 SCC 467

FURTHER READING

 Takwani Pages: 404 to 417.

MODULE 2: INTERIM ORDERS & PERPETUAL INJUNCTIONS

Week II (Contd.)

Session 6 (2 hours)

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  Payment into court – Order XXIV
 Security for Costs – Order XXV
 Arrest and Attachment before Judgement – Order XXXVIII

BASIC READING

 Order XXIV, XXV and XXXVIII of the Code of Civil Procedure

Week III

Session 7, 8 & 9 (6 hours)

 Temporary Injunctions

 Kinds of Injunctions - Perpetual and Temporary; Prohibitory and

Mandatory: Section 36 & 37 of Specific Relief Act, 1963
 The triple pillar test – Prima Facie Case, Balance of Convenience and
Irreparable Injury: American Cyanamid v. Ethicon [1975] AC 396
 Injunctions in cases of threat to the property, continuance of breach and
other cases: Order XXXIX, R 1 & 2 read with Section 151 of the code
 Ex-Parte Injunctions: Order XXXIX, R. 3 and Morgan Stanley v. Kartick
Das 1994 (4) SCC 225
 Disobedience with the order of Injunction: Order XXXIX, R. 2A
 Varying/ Setting aside injunction: Order XXXIX, R. 4
 Injunctions against corporations: Order XXXIX, R. 5
 Temporary Injunctions in employment matter – lack of confidence between
employer and employee: Powell v. Brent London Borough Council
[1988] ICR 176; Union of India v. Bhuvneshwar Kumar AIR 1963 Pat.
296

 Perpetual Injunctions

 Issued through decree and not an order

 Preventing the breach of an obligation and requirement of equitable
conduct of the plaintiff: Section 38 of Specific Relief Act, 1963;
Hyderabad Stock Exchange v. Ranganath Rathi & Co. AIR 1958 AP 43
 A temporary injunction cannot be granted where the perpetual injunction
is not possible: Golden Wine Agencies v. Venedela Distilleries
 Prohibitory perpetual injunction where mandatory injunction is not
possible: Section 42 of Specific Relief Act, 1963
 Interlocutory Orders: Order XXXIX, Rule 6 to 10
 Appointment of Receiver: Order XL

BASIC READING

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  Orders XXXIX and XL of the Code of Civil Procedure
 Section 36 to 42 of the Specific Relief Act, 1963
 American Cyanamid v. Ethicon [1975] AC 396
 Morgan Stanley v. Kartick Das 1994 (4) SCC 225
 Powell v. Brent London Borough Council [1988] ICR 176
 Union of India v. Bhuvneshwar Kumar AIR 1963 Pat. 296
 Hyderabad Stock Exchange v. Ranganath Rathi & Co. AIR 1958 AP 43
 Golden Wine Agencies v. Venedela Distilleries

MODULE 3: RECOURSE AGAINST DECREE & REFERENCE

Week IV

Session 10, 11, 12 (6 hours)

APPEALS UNDER THE CODE

FIRST APPEALS FROM DECREES

 Basic principles

 Which provisions of the Code relate to First Appeals from decrees? Sections
96 to 99A, 107 to 108 and Order 41.

 Does an appeal lie as a matter of right from every decree passed by a civil
court? Yes – under section 96, subject to the pecuniary limit under
section 96 (4). This is unlike appeals from orders, wherein appeals will lie
only if expressly mentioned in the Code.

 What is an “appeal”? There is no definition of “appeal” under the Code but

any application by a party to an appellate court asking it to set aside or
revise the decision of a subordinate court is an appeal. It could also be
defined as the judicial examination of a decision of an inferior court by a
higher court.

 Why is it said that an appeal is a continuation of the suit? The appellate

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 court generally has the powers of the subordinate court and re-hears the
matter.

 Does an appeal lie against a judgment of the trial court? Under section 96,
appeals are provided only against every decree of the court exercising
original jurisdiction. But this is a grey area, especially in view of Order 41
Rule 22 which enables a cross-objector to prefer objections even against
any findings of a trial court.

 If an original decree is passed ex parte, does an appeal lie? Yes, section

96(2).

 If a decree is passed with the consent of the parties, can an appeal lie? Only
if the very factum of compromise or consent is questioned, an appeal will
lie. BanwariLal vs Chando Devi (1993) 1 SCC 581.

 Can grounds against a preliminary decree be raised in an appeal against

the final decree? No. Section 97.

 What is the procedure to be followed when an appeal is heard by a Bench

of 2 or more judges? Section 98.

 Who can appeal against a decree? The parties, and with the leave of the
court (through an application), any person aggrieved by the decree.

 Can a decree be reversed on technical pleas such as misjoinder of parties or

causes of action and irregularities in procedure? Only if it is established
before the appellate court that it has affected the merits of the case or the
jurisdiction of the court. Section 99.

 What is the doctrine of merger? Once the appellate court has passed a
decree, the decree of the trial court merges with the decree of the appellate
court leaving only 1 executable decree.

 What is the manner of preferring an appeal? Order 41 Rule 1 – every

appeal shall be preferred in the form of a Memorandum signed by the
appellant or his pleader and presented to the Court or such officer as it
appoints.

 What is the difference in nomenclature insofar as an “appeal” and a

“memorandum of appeal” are concerned? An appeal is the judicial
examination of the decision of the lower court whereas the Memorandum
of Appeal is the document containing the grounds upon which the judicial
examination is invited.

 What is the date of filing of an appeal? The date of receipt of the

Memorandum of Appeal – this date will be taken into account for
limitation purposes.

 What is the mandatory requirement relating to money decrees? Appellant

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 must deposit the disputed amount or furnish security within the time
specified by the Appellate Court.

 Memorandum of appeal

 What should the Memorandum of Appeal contain? Under Order 41 Rule 1

(2), the grounds of objection to the decree appealed from shall be set forth
concisely and under distinct heads, without any argument or narrative.

 What are the rules relating to urging grounds not taken in the Memorandum
of Appeal? Appellant shall not, except by leave of the court, be heard on
any objection not set forth in the memorandum; but this does not hamper
the power of the appellate court to decide the appeal on any
ground/objection not taken in the memorandum provided that the party
affected is given an opportunity of contesting the case on that ground.
Order 41 Rule 2.

 Memorandum of appeal may be rejected or returned for amendment if not

drawn up in the manner prescribed. Rule 3.

 Delay at appellate stage

 What procedure should be adopted if the appeal is barred by time? An

application for condonation of delay supported by affidavit showing
sufficient cause should be filed with the appeal. The court may reject the
application and dismiss the appeal or issue notice on the application to
the Respondent. Delay shall be condoned first before the appeal is taken
up for admission. Nor can stay be granted of the decree until the delay is
condoned and the appeal admitted. Rule 3A.

 Power of appellate court to grant relief to all

 One of the parties may obtain reversal or variation of the decree for all the
parties where the ground of appeal is common to all the parties. But this
is the discretion of the appellate court. Order 41 Rule 4.

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  Stay of execution

 What are the rules relating to grant of stay of execution of a decree? Mere
filing of an appeal does not operate as stay. But appellate court may stay
execution for sufficient cause. The stay order will be effective from the date
of communication of such order to the court of first instance. (see
Explanation to Rule 5) The court passing the decree may also stay
execution. The parameters for exercise of discretion for grant of stay are:
substantial loss to appellant being caused; application made without
unreasonable delay and that security has been furnished by the appellant
for due performance of the decree. Rule 5.Note that Rule 6(2) states that
where an order has been made for the sale of immovable property in the
execution of a decree and an appeal is pending from such decree, the sale
shall, on the application of the judgment debtor, be stayed on terms
regarding security.

 Stages of hearing an appeal

 What are the different stages before an appellate court for the hearing of the
appeal? There is an admission stage and a final hearing stage. At the
admission stage, the appellate court may dismiss the appeal at the
threshold after hearing the appellant without issuing notice to the other
side if no prima facie case is made out. However, even if the appeal is
dismissed at this stage, the appellate court shall deliver a judgment
recording in brief its reasons for so doing and a decree shall then be drawn
up. (Rule 11).Under Rule 11A the admission stage should be concluded
within 60 days from filing. However, if the appellate court decides to hear
the appeal and admits it, then it shall fix a day for the hearing of the
appeal (Rule 12), ensure service of notice to the Respondent (Rule 14),
and then hear the matter after Respondent is served (Rule 17).

 Other Rules at Appellate Stage

 What is the Register of Appeal? Rule 9.

 How is the Respondent served at the appellate stage? In the same manner
as service on a Defendant of a summons. The appellate court may send
the notice to be served to the lower court or itself cause the notice to be

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 served. Rule 14.

 Can the appellate court require the appellant to furnish security for costs?
Yes, Rule 10.

 Who has the right to begin arguments at the appellate stage? Rule16.

 Default at appellate stage.Appeal may be dismissed for non-appearance in

which case the appellant must apply under Rule 19 for re-admission of
the appeal dismissed under Rules 11 or 17and show sufficient cause.
However, once the appeal is admitted, Rule 17 bars the dismissal of the
appeal on merits. If an ex parte decree is passed against the Respondent,
he must apply under Rule 21for re-hearing.

 Appellate court may direct impleadment of a party not impleaded in the

appeal.Rule 20.

 Cross-appeals and cross-objections

 What is the privilege granted with regard to a respondent at appellate

stage? Respondent may, even though he has not preferred an appeal,
support the decree and argue that some finding should have been in his
favour. He may also file cross-objections within 1 month from the date of
service of notice of day fixed for hearing the appeal, even raising objections
regarding findings against him in the judgment. Rule 22. This is
anomalous when contrasted with the right of an appellant under section
96. Even if the original appeal is withdrawn or dismissed for default, the
objections will be heard.

 Remand by the appellate court

 Under what circumstances can the appellate court remand a matter? Where
the appellate court reverses decree on a preliminary point the appellate
court may by order, remand the case (Rule 23), or, if the appellate court
considers that a re-trial is necessary, it may remand the case under Rule
23A.

 What are the other procedures that may be adopted by the appellate court?
Where evidence on record is sufficient, the appellate court, after re-settling

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 issues may finally determine the suit. Rule 24. If the lower court has
omitted to frame an issue or try an issue, or determine any question of
fact, the appellate court may frame issues and refer the same for trial to
the lower court. The lower court shall try such issues and return the
evidence to the appellate court together with its findings thereon and the
reasons thereof. Rule 25. See also Rules 26 and 26A.

 Production of additional evidence in appellate court

 Is any party entitled, as a matter of right, to produce additional evidence at

the appellate stage? No. Only if the pre-conditions mentioned in Order 41
Rule 27 are satisfied, additional evidence be permitted.

 Procedure for taking additional evidence. Rules 27(2), 28 and 29.

 Judgment and decree in appeal

 What are the requirements to be followed by a judgment in appeal? It

should be pronounced in open court and a copy shall be made available
immediately after the judgment is pronounced. Rule 30. The judgment
shall be in writing and shall state the points for determination, the
decision thereon, the reasons for the decision and the relief to which the
appellant is entitled and shall be signed and dated by the judge. Rule 31.
These requirements are mandatory and failure to comply will result in
reversal at SLP stage – Kanailal vs Ram Chandra Singh (2018) 13 SCC
715.

 What may the judgment direct? The judgment may confirm, vary or reverse
the decree or substitute a consent/compromise decree in place of the
decree of the lower court. Rule 32.

 Powers of appellate court to pass any decree or make any order even if
appeal against part of decree or by some of the parties. Rule 33.

 Dissent to be in writing with reasons.Rule 34.

 What are the requirements of a decree in appeal?Rule 35.

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  General provisions relating to powers of appellate courts

 The appellate court shall have the same powers and duties as courts of
original jurisdiction (sections 107, 108).

BASIC READING

 Sections 96 to 99A, 107 to 108 and Order XLI of CPC, 1908;

 BanwariLal vs Chando Devi (1993) 1 SCC 581;

 Kanailal vs Ram Chandra Singh (2018) 13 SCC 715

SECOND APPEALS

Basic principles

 Which provisions of the Code relate to Second Appeals from decrees?

Sections 100 to 103, 107 to 108 and Order 42.

 Does an appeal lie as a matter of right from every decree passed in appeal?
No– under sections100 and 101, an appeal shall lie to the High Court
from every decree passed in appeal by any court subordinate to a High
Court if the High Court is satisfied that the case involves a substantial
question of law, subject to the pecuniary limit in section 102. The
memorandum of appeal shall precisely state this question; the High Court
shall admit the appeal only by framing such a question and further, the
appeal shall be heard only on the question so formulated.

 Can there be cases where there is no second appeal? Under section 100A,
where an appeal from an original or appellate decree is heard by and
decided by a single judge of a High Court, no further appeal shall lie.

 What is a “substantial question of law”? Chunilal V. Mehta and Sons Ltd

vs Century Spinning and Manufacturing Co Ltd AIR 1962 SC 1314-
the considerations would include- whether it directly and substantially
affects the rights of the parties; whether it is of general importance;
whether it is an open legal question unsettled by judicial dicta; no
universal rule- depends on the facts and circumstances of each case. The
Law Commission 54th Report however, suggested that it should not be

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 limited to questions of general importance.

 Does the second appellate court nonetheless have some power to enter upon
factual issues? Section 103- any issue not determined by the lower courts
if evidence on record is sufficient may be decided and any issue which has
wrongly been decided as a consequence of a decision on a question of law
referred to in section 100 may be determined.

BASIC READING

 Sections 100 to 103, 107 to 108 and Order XLII of CPC, 1908;

 Chunilal V. Mehta and Sons Ltd vs Century Spinning and Manufacturing

Co Ltd AIR 1962 SC 1314

________________________________________________________________________________

Week V

Session 13 & 14 (4 hours)

APPEALS FROM ORDERS

Principles

 Which provisions of the Code relate to appeals from orders? Sections 104
to 106, 107 to 108 and Order 43.

 Does an appeal lie as a matter of right from every order passed? No– under
section 104, an appeal shall lie only from the orders mentioned therein
and the orders against which appeal is expressly allowed by the Rules.
Thus, section 104 would need to be read with Order 43 Rule 1 to
determine if an appeal lies in a given case against an order.

 Can there be a second appeal in the case of orders?No – section 104 (2)
bars it.

 If no appeal is provided by the Rules or section 104 from an order, how can
it be assailed? File a writ under Article 227 or raise this as a ground in an
appeal from the decree under section 105. However this does not apply to

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 orders passed in remand.

 Which court will hear an appeal from an order? The court to which an
appeal would lie from the decree in the suit (section 106).

BASIC READING

 Sections 104 to 106, 107 to 108 and Order XLIII of CPC, 1908

APPEALS TO THE SUPREME COURT

Principles

 Which provisions of the Code relate to appeals to the Supreme Court?

Sections 109, 112 and 107 to 108 and Order 45.

 Does an appeal lie as a matter of right to the Supreme Court? No – in civil

matters persons can approach the Supreme Court under Articles 132
(certificate appeal where High Court certifies that the case involves a
substantial question of law as to the interpretation of the constitution);
under Article 133 (if High Court certifies that the case involves a
substantial question of law of general importance and that the said
question needs to be decided by the Supreme Court); and under Article
136 (SLPs).

 Which other rules govern appeals to the Supreme Court? The Supreme
Court Rules made under Article 145 that override the provisions of the
Code in case of inconsistency. Section 112.

 What is the procedure to prefer a certificate appeal on the civil side to the
Supreme Court under Article 133?The procedure is laid out in Order 45.
Application needs to be made by petition stating the grounds of appeal and
praying for a certificate (Rule 3). Thereupon notice shall be served on the
opposite side (Rule 3). Upon grant of certificate, the High Court shall
require security for costs from the applicant, require deposit of amount for
preparing and transmitting the paper-book, declare the appeal admitted,
transmit the record to the Supreme Court and furnish copies of the paper-
book to the parties. Rules 7 and 8. The High Court may also stay the
execution of the decree (Rule 13).

 What is the procedure to enforce orders of the Supreme Court? Order 45

Rule 15.

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 BASIC READING

 Sections 109, 112 and 107 to 108 and Order XLV of CPC, 1908;

 Articles 132, 133, 136 and 145 of the Constitution of India

Session 15 (2 hours)

REFERENCE

 Which provisions of the Code relate to Reference? Section 113 and Order
46.

 When can a reference be made?Any court wherein the decree is not subject
to an appeal, may suo motu or on the application of the parties may make
a reference on any question of law to the High Court (section 113 read
with Order 46 Rule 1). In some situations reference is compulsory –
proviso to section 113.

 What is the procedure for a reference? See rules 1 to 5.

REVIEW

 Which provisions of the Code relate to Review? Section 114 and Order 47.

 What is a “review”? It is a judicial re-examination of the case by the same

court and by the same judge.

 When can review jurisdiction be exercised? A person aggrieved by a decree

or order from which no appeal is allowed or from which no appeal has
been preferred though allowed or by a decision on a reference from a Court
of Small Causes who discovers new or important matter or evidence that
was not within his knowledge or could not have been produced in spite of
due diligence earlier or on account of some mistake or error apparent on
the face of the record or for any other sufficient reason, may apply for
review to the Court which passed the decree or made the order. Order 47
Rule 1. Further, if an appeal has been preferred by another party on the
same ground, he cannot seek review but must approach the appellate

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 court.

 Is the principle of ejusdem generis applicable to the phrase “any other

sufficient reason”?

 What is the form to be used for review? Same form as appeals (rule 3).

 What is the procedure for a review? See rules 4 to 9. Notice should be

given to the opponent. An order of rejection is not appealable. Further,
review of order passed in review is impermissible.

REVISION

 Which provisions of the Code relate to Revision? Section 115.

 What is the rationale for revisional jurisdiction?

 What are the pre-conditions for its exercise?

 Have amendments to section 115 rendered revisonal jurisdiction

redundant?

BASIC READINGS

 Section 113 and Order 46 of Code of Civil Procedure

 Section 114 and Order 47 of Code of Civil Procedure

 Section 115 of Code of Civil Procedure

MODULE 4: EXECUTION OF A DECREE

Week VI &VII

Sessions 16, 17, 18, 19, 20, 21 (12 hours)

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A. WHAT IS “EXECUTION”?

The word has not been defined in the Code, but in its widest sense, it
signifies the enforcement or giving effect to a judgment or order of a court
of justice (Halsbury’s Laws of England). Execution is the enforcement of
decrees and orders by the process of the court, so as to enable the decree-
holder to realize the fruits of the decree. Execution is complete when the
decree holder gets the money or other thing awarded to him by the decree
or order.

B. WHERE ARE THE PROVISIONS CONTAINED FOR EXECUTION OF

DECREES AND ORDERS?

Part II: sections 36 to 74 and Order 21. Also sections 145 and 146.

C. WHAT ARE THE DIFFERENT HEADS UNDER WHICH EXECUTION CAN

BE DISCUSSED?

● What are the general principles applicable to execution?

● Which courts can execute decrees?

● What are the requirements of an application for execution?

● How is payment to be made under a decree?

● What are the rules applicable to stay of execution?

● What are the different modes available for execution?

● When will the court order arrest and detention in the execution of a
decree and what are the procedures thereof?

● When will the court attach property in execution of a decree and

what are the procedures thereof?

● What procedure applies for sale of property in execution?

● What procedure applies for delivery of possession?

● What procedure applies for distribution of assets when there are

several applications for execution against the same property?

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● What are the mechanisms available before the executing court for
adjudication of claims and disputes?

● What questions should be determined by the executing court?

D. WHAT ARE THE GENERAL PRINCIPLES APPLICABLE TO

EXECUTION?

● The executing court cannot go beyond the decree or vary or modify

its terms.

● However, if the terms of the decree are vague, the executing court
can construe the decree and refer even to the pleadings in the suit.

● In case of inherent lack of jurisdiction the decree passed is a nullity

and its invalidity could be raised in execution proceedings – here
the court cannot be said to be going behind the decree as there is
no decree at all. However, the inherent lack of jurisdiction must
appear from the face of the record.

● The executing court can also go into the executability of the decree
and enquire whether the decree has ceased to be executable.

● The executing court has the power to mould the relief granted to the
Plaintiff in accordance with the changed circumstances.

● The principle of res judicata specifically applies to execution

proceedings by virtue of Explanation VII of section 11. But an
earlier decision can operate as res judicata if the execution
application has been heard and finally decided and not otherwise. If
the application is dismissed for default of appearance, non-
prosecution, as being premature or as not pressed, the principle of
res judicata will not apply.

E. Under the Code, the provisions thereof applicable to decrees

are deemed applicable to orders also. Hence, the same
procedures would need to be adopted for execution of orders also.

F. WHICH COURTS CAN EXECUTE DECREES?(sections 37 to 46 and

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 Order 21 Rules 3,4,9)

● A decree may be executed by the Court which passed it or by the

Court to which it is sent for execution (the transferee court) –
section 38.

● However, by virtue of the deeming provision in section 37, the

“court which passed the decree” is deemed to include several other
courts as well.

● Transfer of decree is provided for under section 39- the court

which passed the decree may transfer the decree for execution to
another court of competent jurisdiction ie, as defined in sub-clause
(4). The circumstances under which transfer can be effected are laid
out in section 39.

● Under section 39, the court which passed the decree may also
send it to a subordinate court for execution.

● However, by virtue of section 39 (4), the court which passed the

decree cannot execute the decree against any person or property
outside the local limits of its jurisdiction.

● Cases: Mahadeo Prasad Singh vs Ram Lochan (1980)4SCC 354.

Mohit Bhargava vs Bharat Bhushan Bhargava (2007) 4 SCC 795.

● The transferee court shall have the same powers in executing the
decree as if it had been passed by itself. However, there are some
fetters on the powers of the transferee court. Section 42.

● Procedure to be adopted for transfer of a decree- sections 40, 41,

42 and Order 21 Rules 4, 5,6,7,8,9.

● Precepts- section 46. What is a precept and when will it be issued?

● What are the exceptions to the rule that a court cannot execute
against person or property outside its territorial jurisdiction? Order
21 Rule 3.

● Can a decree be executed in more than 1 court? Yes- but this

should be done only in exceptional cases.

G. APPLICATION FOR EXECUTION

● What is the procedure for seeking execution? Is a written

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 application always necessary? Order 21 Rules 10,11.

● What details should be contained in the application for execution?

Order 21 Rules 11 to 14.

● What is the enabling provision with regard to joint decree holders?

Order 21 Rule 15.

● What is the procedure in case of cross-decrees and cross-claims?

Order 21 Rules 18 to 20.

● What is the procedure to be adopted after filing of the application?

Order 21 Rules 17, 22, 23, 24, 25. When is notice required to be
issued on an application for execution?

H. PAYMENT UNDER A DECREE (Order 21 Rules 1 and 2)

● How can money payable under a decree be paid?

● If a payment has not been certified or recorded, what is the effect?

I. WHO CAN MAKE AN APPLICATION AND AGAINST WHOM CAN IT

BE MADE ?

● Section 146: where any proceeding may be taken or application

made by or against any person, then the proceeding may be taken
or the application may be made by or against any person claiming
under him.

● However, under section 49 the transferee shall hold the decree

subject to the same equities that judgment-debtor might have
enforced against the original decree-holder.

● Further however, under section 50 if judgment-debtor dies before

decree has been fully satisfied, the decree can be executed against
the legal representatives of the deceased only to the extent of the
property of the deceased which has come to his hands and has not

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 been duly disposed of. However, if the legal representative has not
duly applied the property of the deceased, the decree may be
executed against the judgment-debtor in the same manner as if the
decree was against him personally-section 52. See also section 53.

● Further however, in case of assignment of the decree, no such

decree shall be executed unless notice is given to the judgment
debtor and the transferor and they have been heard on their
objections. Order 21 Rule 16.

● Note Order 21 Rule 22A: death of judgment debtor before sale but
after proclamation of sale does not vitiate the sale.

● The liability of a surety has been specifically provided in section

145.

● In a representative suit, a beneficiary may apply for execution, even

if he has not been made a party.

● One or more of joint decree-holders can apply subject to conditions.

Order 21 Rule 15.

J. STAY OF EXECUTION (Order 21 Rules 26 to 29)

● Which are the courts empowered to stay execution? The

court to which the decree has been sent (section 26) may
stay for a reasonable time; & the court which passed the
decree or the appellate court (section 28).

● Stay where another suit pending between decree holder and

judgment debtor (section 29).

● Shaukat Hussain vs Smt Bhuneshwari Devi (1972) 2 SCC

731.

K. MODE OF EXECUTION GENERALLY (sections 51, 54, Order 21

Rules 30 to 36)

● Section 51: Powers of the court to enforce execution: subject

to such limitations and conditions as may be prescribed, the
Court may order execution of the decree by one of the modes
prescribed or in such other manner as the nature of the relief
granted may require.

● Section 54: partition and separate possession of undivided

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 estate shall be made by the Collector.

● What are the different modes prescribed for execution for

particular types of decrees? Order 21 Rules 30 to 36.

● How is a decree for restitution of conjugal rights to be

executed? Order 21 Rules 32, 33.

L. ARREST AND DETENTION (Sections 51, 55, 56, 57, 58, 59 and
Order 21 Rules 11, 21, 30, 31, 32, 37 to 40)

● What are the safeguards and pre-conditions for arrest in

execution?

✔ Order 21 Rule 21: court may refuse

simultaneous execution at the same time
against the person and property of the
judgment debtor.

✔ Section 55: detention shall be in civil prison.

✔ Shall be brought before court as soon as

possible (section 55 and Order 21 Rule 38).

✔ No dwelling house shall be entered after sunset

and before sunrise. (section 55).

✔ Outer door of dwelling house not to be broken

open unless…(section 55).

✔ Room in occupancy of a woman who does not

appear in public according to custom (section
55).

✔ State Government may prescribe special

procedure for certain persons. (section 55).

✔ Section 57: State Government may fix scales

for allowances payable for the subsistence of
judgment-debtors. Order 21 Rule 39: decree
holder bound to pay into court subsistence
allowance.

✔ Release on the ground of illness permitted-

section 59.

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● What are the additional safeguards with regard to arrest in
execution of a money decree?

✔ Opportunity of showing cause necessary

(section 51 and Order 21 Rule 37).

✔ The court for reasons to be recorded in writing

should be satisfied that (a) judgment debtor
likely to abscond or has dishonestly transferred
property or committed any other act of bad faith
(b) the decretal amount is a sum which the
judgment debtor was bound in a fiduciary
capacity to account or (c) the judgment debtor
has the means but refuses or neglects to pay.
(Section 51).

✔ If judgment debtor pays the sum due to the

officer arresting, such officer shall at once
release him (section 55).

✔ Under section 55(3) – once the judgment

debtor is arrested and brought before the court,
the Court is bound to inform him that he may
apply to be declared an insolvent.

✔ No woman shall be arrested or detained in

execution of a decree for the payment of money
(section 56).

✔ Persons detained in execution of a money

decree – maximum periods of detention are
prescribed in section 58.

✔ A judgment debtor released is not discharged

from his debt, but he shall not be liable to be
re-arrested (section 58).

✔ Special procedure before committal to civil

prison (Order 21 Rule 40).

● Why is a distinction made in the Code with regard to

execution of regular decrees and money decrees?

● Cases: Shyam Singh vs Collector, District Hamirpur, UP

(1993) Supp 1 SCC 693; Padrauna Rajkrishna Sugar
Works Ltd vs Land Reforms Commissioner 1969 (1) SCC
485; Subrata Roy Sahara vs Union of India (2014) 8 SCC
470; Jolly George Varghese vs The Bank of Cochin (1980)

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 2 SCC 360.

Week VIII

SESSION 22, 23, 24 (6 hours)

M. ATTACHMENT (sections 60 to 64 and Order 21 Rules 41 to 59)

● Attachment is a process by which a court , at the request of a

decree holder, designates specific property owned by
the judgment debtor, to be transferred to the decree holder,
or sold for the benefit of the decree holder.

● The primary object of attachment is to give notice to the

judgment debtor not to alienate the property to anyone as
also to the general public not to purchase or deal with the
property attached. Attachment is not a condition precedent
for sale.

● Section 64 provides that any private transfer or delivery of

property attached shall be void. However, the section does
not apply to any private transfer or delivery of the property
attached made in pursuance of a contract entered into and
registered before the attachment.

● Section 60 provides a non-exhaustive list of all properties

liable to attachment that are “saleable”; it also provides a list
of items that cannot be attached and sold. Under section
60(1-A) no person can waive the benefit of these exemptions
from attachment. Section 61 provides that the State
Government may exempt agricultural produce from
attachment.

● Section 62 imposes safeguards to be observed whilst

attaching property.

● Section 63 provides that if the same property is under

attachment in execution of decrees of more than 1 court,
then the Court entitled to deal with the property shall be the
court of the highest grade or the court which first attached
the property.

● Order 21 Rule 41 provides that in a money decree, the

judgement debtor or any other person can be examined as to
the properties available or court can require an affidavit

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 stating the particulars of the assets of the judgment debtor.

● Order 21 Rule 42 provides for attachment even if the

amount due has not yet been ascertained such as where
enquiry as to rents or mesne profits is pending.

● Order 21 Rules 43 to 54 provide for the manner of making

the attachment with regard to different types of properties.
See Takwani’s Chart page 656.

● It is to be noted that disputes arising in the course of

attachment can be decided by the court and such orders of
the court are deemed to be decrees (ie can be appealed
against)-Order 21 Rule 43A (determination of liability of a
custodian of movable property); Order 21 Rule 46H (orders
in cases involving Garnishees); & Order 21 Rule 50 (liability
of a partner of a firm). Also Order 21 Rule 58.

● What is the procedure adopted in the Code as to recovery

from Garnishees? Order 21 Rules 46A to H. The same
procedure applies to negotiable instruments. (Order 21 Rule
46I)

● What is the procedure for attachment of immovable property?

Order 21 Rule 54.

● When is the attachment removed or withdrawn? Order 21

Rule 55.

● When does the attachment determine? Order 21 Rule 57.

● What is the procedure for attachment of coin or currency

notes? Order 21 Rule 56.

● What is the procedure for adjudication of claims and

objections on the ground that the property in question is not
liable to be attached? Order 21 Rule 58. If the court refuses
to entertain the claim, what remedy is available? If the court
entertains and determines the issue, what is the effect?

● When might the court stay the sale? Order 21 Rule 59.

N. SALE

● Section 65 provides that when immovable property is sold

and such sale has become absolute, the property is deemed
to have vested from the time the property is sold and not
when the sale becomes absolute.

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● Section 67 empowers the State Government to make rules
for the sales of land in execution of decrees where the value
of the lands are uncertain.

● Under rule 64 the court is empowered to order any property

attached by it and liable to sale to be sold and that the
proceeds shall be paid to the party entitled to it under the
decree.

● The following safeguards are enshrined in the Code:

⮚ Every sale in execution of a decree shall be conducted

by an officer of the court or court-appointed person
and it shall be made by public auction, in the manner
prescribed. Rule 65.

⮚ Proclamation of the intended sale is mandatory, after

notice, and compliance with the other requirements of
rules 66 and 67.

⮚ The time of sale is prescribed by rule 68.

⮚ Rule 69 provides for adjournment or stoppage of sale

if the amount due is paid.

⮚ Rule 71 provides that the defaulting purchaser is

answerable for the loss on re-sale.

⮚ Rules 72 and 72A provide that the decree-holder and

mortgagee cannot bid at the auction without the leave
of the court.

⮚ Officers are prohibited from bidding in these sales-

Rule 73.

Rules 74 to 81 (specifically with regard to sale of

movable property)

⮚ Rules 74 to 76 provide special provisions for sales of

movable property such as agricultural produce,
growing crops and negotiable instruments.

⮚ Under Rule 77, in the case of movable property sold

by public auction, upon the payment of the purchase
money, and the grant of a receipt for the same, the
sale becomes absolute.

⮚ Under Rule 78,no irregularity in the sale of movable

property shall vitiate the sale, but a fresh suit for

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 compensation and recovery of the property is not
barred.

⮚ Rules 82 to 96 make specific provision for the sale of

immovable property.

Rules 82 to 96 (specifically with regard to sale of

immovable property)

⮚ Rule 82: Court of Small Causes cannot order

sale of immovable property.

⮚ Rule 83 provides that sale may be postponed if

judgment debtor satisfies the court that
decretal amount can be raised by private sale or
otherwise; in such a case the court will grant a
certificate to the judgment debtor authorizing
him to make the proposed sale notwithstanding
section 64 (ie any attachment of the property).

⮚ Purchaser of immovable property is bound to

deposit 25% immediately, failing which the
property will be re-sold forthwith – Section 84.

⮚ Within 15 days from the date of sale the

purchase money shall be paid in full: Rule 85.

⮚ In case of failure to pay the purchase money,

the property shall be re-sold and the defaulting
purchaser will forfeit his deposit – Rule 86.

⮚ Upon re-sale, fresh proclamation is to be

issued- Rule 87.

⮚ Bid of a co-sharer shall have preference – Rule

88.

⮚ After the sale, there are 3 provisions under

which the sale still be set aside: Order 21
Rules 89 (application to set aside on deposit),
90 (application to set aside sale on the ground
of irregularity or fraud) and 91(application by
purchaser to set aside sale on the ground of
judgment debtor having no saleable interest).

⮚ Under Order 21 Rule 92 where no application

is made under the three rules or where such an
application is made and disallowed, the Court
shall make an order confirming the sale and

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 only thereupon the sale shall become absolute.

⮚ Where sale is set aside, the purchase money

will be returned to the purchaser – Rule 93.

⮚ Once the sale has become absolute, the Court

shall grant a certificate specifying the property
sold and the name of the person declared to be
the purchaser and the date on which the sale
became absolute. Order 21 Rule 94. However,
this is only a ministerial act.

Cases: Manilal Mohanlal Shah vs Sardar Syed

Ahmed Sayed Mahmud AIR 1954 SC 349; A.
Venkatachalam vs E.M. Zackria 1987 (Supp)
SCC 124; Ambati Narasayya vs M. Subba Rao
1989 Supp(2) SCC 693; Ganpat Singh vs
Kailash Shankar (1987) 3 SCC 146.

O. DELIVERY OF POSSESSION

● Movable property – Order 21 Rules 79 to 81.

● Immovable property – Order 21 Rules 95 to 104.

● Resistance to possession of immovable property- Order 21

Rules 97, 98 (civil prison).

● Dispossession of person other than judgment debtor – Order

21 Rules 99, 100, 101, 102, 103, 104. Deemed decree.

P. PROCEEDS OF EXECUTION SALE TO BE RATEABLY

DISTRIBUTED AMONGST DECREE HOLDERS - Section 73.

Q. DEFAULT IN EXECUTION PROCEEDINGS – Order 21 Rules 105

and 106.

R. CAN A SUIT LIE TO CORRECT ANYTHING DONE IN EXECUTION

PROCEEDINGS?

● Section 47 : all questions arising between the parties to the suit

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 relating to the execution, discharge or satisfaction of the decree
shall be determined by the court executing the decree and not by a
separate suit.

BASIC READING

● Sections 36 to 74 and Order XXI of CPC, 1908;

● Mahadeo Prasad Singh vs Ram Lochan (1980)4SCC 354;

● Mohit Bhargava vs Bharat Bhushan Bhargava (2007) 4 SCC 795;

● Shaukat Hussain vs Smt Bhuneshwari Devi (1972) 2 SCC 731;

● Shyam Singh vs Collector, District Hamirpur, UP (1993) Supp 1

SCC 693;

● Padrauna Rajkrishna Sugar Works Ltd vs Land Reforms

Commissioner 1969 (1) SCC 485;

● Subrata Roy Sahara vs Union of India (2014) 8 SCC 470;

● Jolly George Varghese vs The Bank of Cochin (1980) 2 SCC 360;

● Manilal Mohanlal Shah vs Sardar Syed Ahmed Sayed Mahmud

AIR 1954 SC 349;

● A. Venkatachalam vs E.M. Zackria 1987 (Supp) SCC 124;

● Ambati Narasayya vs M. Subba Rao 1989 Supp(2) SCC 693;

● Ganpat Singh vs Kailash Shankar (1987) 3 SCC 146

ADDITIONAL READING

Takwani Part IV

MODULE 5: SUITS IN PARTICULAR CASES

Week IX

Session 25, 26, 27 (6 hours)

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 SUITS IN PARTICULAR CASES

A. SUITS BY OR AGAINST GOVERNMENT OR PUBLIC OFFICERS IN

THEIR OFFICIAL CAPACITY : sections 79 to 82; Order XXVII

● The authority to be named shall be the Union of India or the State

Government concerned-section 79.

● Mandatory Notice before suit –Section 80.

⮚ It is mandatory to issue 2 months’ prior notice in writing before

institution of every suit against the Government or a public officer
in respect of any act purporting to be done by such public officer in
his official capacity. “Public Officer” is defined in section 2(17) of
the Code.

⮚ The 2 months shall be calculated from the date of delivery or the

date when it was left at the office of the concerned official.

⮚ The notice should contain the cause of action, the name,

description and place of residence of the Plaintiff, and the relief
which he claims.

⮚ Further, the Plaint shall contain a statement that such a notice has
been delivered or left at the office of the Government official
concerned.

⮚ As to who the concerned official would be – see section 80.

⮚ However, under section 80(2), if urgent or immediate relief is

sought, then suit can be instituted without the 2 months’ notice-
provided the leave of the court is obtained. But the court shall not
grant any relief whether interim or otherwise in such a case, except
after giving notice to the Government or public officer concerned.

⮚ Failure to comply with section 80 will lead to rejection of the Plaint.

⮚ If the Government or public officer concerned fails to object to the

suit instituted without complying with section 80, it would amount
to waiver of the requirement.

● The Government pleader in any court may receive processes against the

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 Government issued by any court- (Order 27 Rule 4). He need not file
Vakalath.

● Special provisions relating to exemption from arrest and personal

appearance of a public officer. Section 81.

● Special provisions relating to execution of a decree against Government or

public officer. Section 82.

B. SUITS BY OR AGAINST CORPORATIONS : ORDER 29

● Pleadings may be signed and verified on behalf of the corporation by

the secretary, any director or other principal officer of the
corporation who is able to depose to the facts of the case. (Rule 1).

● Service on a corporation can be effected by serving the secretary, or

any director, or other principal officer of the corporation or by
leaving the summons or sending it by post addressed to the
corporation at the registered office; if there is no registered office,
then at the place where it carries on business (Rule 2).

C. SUITS BY OR AGAINST FIRMS AND PERSONS CARRYING ON

BUSINESS IN NAMES OTHER THAN THEIR OWN – ORDER 30

● Only the firm needs to be described in the cause title – and that
would amount to all the partners being parties to the suit, as per
the law of partnership. Any one of the partners may verify and sign
the pleadings. (Rule 1).

● The firm is bound to declare in court the names of all its partners.
(Rules 1 and 2).

● After the declaration, even though the suit may continue in the
name of the firm, the decree will contain the names of all the
partners (Rule 2).

D. SUITS BY OR AGAINST TRUSTEES, EXECUTORS AND

ADMINISTRATORS – Order 31

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 ● If property is vested in a trustee, executor or administrator, where
the contention is between the person beneficially interested in such
property and a third person, the trustee, executor or administrator
will represent the persons beneficially interested and they need not
be made parties.

E. Suits relating to public charities (Section 92)

● What are the essential elements of a suit under section 92 of the

Code?

F. Summary suits (Order 37)

● To which classes of suits does the summary procedure under
Order 37 apply? Rule 1(2).

● What are the procedural requirements for filing a summary suit?

Rule 2: Plaint to contain specific averment that suit is filed
under Order 37, that no relief has been claimed outside the
ambit of Order 37 and an appropriate inscription.

● What are the distinguishing features of summary suits?

⮚ The defendant has no right to defend the suit but must

appear and seek leave to defend the suit. Only if such
leave is granted the suit will be heard in the ordinary
manner.

⮚ If there is default on the part of the Defendant in entering

appearance the Plaintiff shall be entitled to a decree
forthwith (Rule 2(3)).

⮚ After appearance of the Defendant, Plaintiff shall serve a

summons for judgment in Form No. 4A in Appendix B
stating that there is no defence to the suit. The Defendant
may, within 10 days from the service of such summons,
apply for leave to defend the suit by swearing to an
affidavit. Only if the court is satisfied that he has a
substantial defence and that it is not frivolous or vexatious
it may grant leave. (Rule 3(5)).

⮚ Thereupon the court may direct the Defendant to give

security for the suit. Rule 3(6).

⮚ The court however has the discretion to excuse delay in

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 entering appearance or in applying for leave. (Rule 3(7)).

⮚ If a decree has already been passed then under special

circumstances, the court is empowered to set aside its
own decree and stay execution and grant leave to the
Defendant to defend. (Rule 4).

G. SUITS FOR DECLARATORY DECREES

 Legal understanding of phrases ‘Legal Character’, ‘Legal

Right’, ‘denying or interested in denying’ as used under Section 34
of Specific Relief Act, 1963
 Effect of Declaration: Section 35 of Specific Relief Act,
1963

H. INTERPLEADER SUITS (Order 35)

● What is an interpleader suit?

● What are the matters to be stated in the Plaint in an

Interpleader suit? (Rule 1)

● What procedure can be adopted in Interpleader suits at the first

hearing to discharge the Plaintiff? Rule 4.

I. SUITS BY OR AGAINST MINORS AND PERSONS OF UNSOUND MIND –

Order 32

The next friend of the Plaintiff

● What is the procedure for institution of a suit on behalf of a minor?

Order 32 Rule 1- the suit shall be instituted in his name by the
next friend of the minor. “Minor” defined in the explanation to Order
32 Rule 1.

● What is the effect of instituting a suit without the next friend? Order
32 Rule 2- the Defendant may apply to have the Plaint taken off the
file with costs payable by the pleader concerned.

● The court may order the next friend to give security for the costs of
the Defendant. Rule 2A.

● The eligibility criteria for next friend: any person of sound mind,

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 attained majority, with no adverse interest and not an opponent
party in the suit; if there is already a guardian declared by
competent authority, then only such a person shall act as next
friend unless the court otherwise directs. Rule 4.

● Safeguards for the minor Plaintiff:

⮚ If the minor has been prejudiced in the suit by virtue of the

next friend having an adverse interest in the subject-matter
of the suit, then decree may bet aside, but not otherwise.
Rule 3A. (If decree not set aside minor Plaintiff can sue next
friend for misconduct or gross negligence.)

⮚ Every application to court shall be made by the next friend.

Rule 5. If an order is passed in the suit without the minor
being represented, the order may be discharged, with costs
payable by the pleader.

⮚ The next friend shall not receive money or other movable

property on behalf of the minor in a compromise or under a
decree or order in favour of the minor without the leave of the
court. Rule 6. (Court may require security to protect the
property).

⮚ No next friend can enter into any compromise without the

express leave of the court recorded in the proceedings; an
application for leave shall be accompanied by an affidavit of
the next friend and by a certificate of the pleader to the effect
that the compromise is for the benefit of the minor; the court
may still examine whether the compromise is for the minor’s
benefit; any compromise entered into without the leave of the
court shall be voidable. Rule 7.

⮚ Next may not retire without first procuring a fit person to be

put in his place and also furnishing security for the costs
already incurred. Rule 8. The application for appointment of
a new next friend shall be supported by an affidavit.

⮚ Court may order next friend to be removed if there is adverse

interest, if he fails to do his duty, ceases to reside in India or
for any other sufficient cause and appoint a new person.
Rule 9. On the retirement, removal or death of the next
friend further proceedings shall remain stayed until a new
next friend is appointed.

● Course to be followed upon the minor Plaintiff attaining majority: He

shall elect whether he will proceed with the suit. If he elects to
proceed, he shall apply for an order discharging the next friend and
to proceed in his own name. If he elects to abandon the suit, he

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shall apply for an order to dismiss the suit. Rule 12. If he is a co-
plaintiff, he must apply to repudiate the suit and have his name
struck off as a co-plaintiff. The sole-Plaintiff minor upon attaining
majority may also apply that the suit be dismissed on the ground
that it was unreasonable or improper – court may allow the
application and court may order next friend to pay costs. Rule 14.

The guardian of the Defendant

● The court shall appoint a guardian for the suit for a minor
defendant. Rule 3.

● Appointment of guardian for the minor for the suit shall be

after notice to any guardian appointed by a competent
authority or the father or mother or natural guardian. Rule
3.

● The guardian has to swear to an affidavit to the effect that he

has no interest in the matter in controversy adverse to that of
the minor and that he is a fit person to be so appointed. Rule
3.

● The eligibility criteria for guardian : any person of sound

mind, attained majority, with no adverse interest and not an
opponent party in the suit; if there is already a guardian
declared by competent authority, then only such a person
shall act as guardian unless the court otherwise directs;
consent in writing is necessary of the guardian. Rule 4.

● Safeguards for the minor Defendant:

⮚ The guardian appointed shall continue as such in all

proceedings arising out of the suit including proceedings in
any Appellate or Revisional court and in execution
proceedings. Rule 3.

⮚ If the minor has been prejudiced in the suit by virtue of the

guardian having an adverse interest in the subject-matter of
the suit, then decree may bet aside, but not otherwise. Rule
3A. (If decree not set aside minor Defendant can sue next
friend for misconduct or gross negligence.)

⮚ Every application to court shall be made by the guardian.

Rule 5. If an order is passed in the suit without the minor
being represented, the order may be discharged, with costs
payable by the pleader.

● If there be no person fit and willing to act as guardian for the

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 minor Defendant, court may appoint one of its officers to act
as guardian. Rule 4.

● The guardian shall not receive money or other movable

property on behalf of the minor in a compromise or under a
decree or order in favour of the minor without the leave of the
court. Rule 6. (Court may require security to protect the
property).

● No guardian can enter into any compromise without the

express leave of the court recorded in the proceedings; an
application for leave shall be accompanied by an affidavit of
the guardian and by a certificate of the pleader to the effect
that the compromise is for the benefit of the minor; the court
may still examine whether the compromise is for the minor’s
benefit; any compromise entered into without the leave of the
court shall be voidable. Rule 7.

● Court may permit the guardian to retire or may even remove

him if he fails to do his duty and shall appoint a new
guardian in his place. Rule 11.

Persons of unsound mind

● Rules 1 to 14 (except Rule 2A) shall apply as far as may be,

to persons adjudged, before or during the pendency of the
suit, to be of unsound mind and shall also apply to persons
though not so adjudged to be found by the court to be
incapable by reason of any mental infirmity of protecting
their own interest. Rule 15.

J. SUITS BY INDIGENT PERSONS (Order 33)

● Who is an “indigent”? Order 33 Rule 1.

● Can a suit be filed by an indigent? Yes. Rule 1 is an enabling provision.

● What is the special procedure to be adopted for the filing of suits an

indigent?

⮚ Application seeking permission to sue as an indigent

person to be made containing the particulars required in
regard to plaints in suits; a schedule of property
belonging to the indigent shall be annexed thereto with an
estimate of the value; it shall be signed and verified like

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 pleadings. Rule 2.

⮚ The inquiry whether the applicant is indigent shall be

made in the first instance by the chief ministerial officer
of the court unless the court otherwise directs. Rule 1A.

⮚ The application shall be presented by the applicant in

person to the Court unless exempted. Rule 3.

⮚ The court will then examine the applicant on the

application. Rule 4.

⮚ Court may reject the application at the threshold if the

application is not framed and presented in the manner
prescribed; where the court finds he is not an indigent;
where he has disposed of property fraudulently within 2
months from the date of the application; where the
allegations do not show a cause of action; if any other
person has obtained an interest in the subject-matter by
virtue of an agreement entered into by the applicant; if
the suit is barred by any law or where any other person
has entered into an agreement with him to finance the
litigation. Rule 5. However, if the court does not reject the
application at the threshold on any of these grounds, it
shall fix a day for receiving the evidence of the Plaintiff
and the opposite party and Government pleader too, after
notice to them. Rule 6.

⮚ After evidence, including the examination of witnesses,

and the hearing of arguments, the court shall either allow
or refuse to allow the application. Rule 7.

⮚ Once the application is granted, it shall be deemed the

Plaint in the suit and the suit shall proceed in the
ordinary manner except that the Plaintiff shall not be
liable to pay any court fees or service fees. Rule 8.

⮚ The Court may also assign a pleader to the indigent

person if he does not have one. Rule 9A.

● Can the court withdraw permission to sue as an indigent? Yes. If he

is guilty of improper or vexatious conduct in the course of the suit,
if his means are such that he should not be granted permission to
sue an indigent; or if he has entered into an agreement with regard
to the subject-matter giving any other person an interest therein.
Rule 9.

● What happens when the suit ends? If Plaintiff wins, the court fees
payable shall be recoverable by the State Government from any
party ordered by the court to pay the same (Rule 10).If he loses, or

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 permission is withdrawn, or suit is dismissed for default, the Court
shall order the Plaintiff to pay the Court fees (Rule 11). If the suit
has abated by death of Plaintiff, then court shall order that the
court fees payable shall be recoverable by the state government
from the estate of the deceased. (Rule 11A).

● What are the rights of the State Government regarding Court Fees?
State Government has the right to apply for an order under Rules
10, 11 or 11A for payment of court fees (Rule 12). All matters
between the State Government and the parties shall be deemed to
fall under section 47 (Rule 13). Once an order is made for
recovery, the Collector shall recover as an arrear of land revenue.
(Rule 14).

● If an application seeking leave to sue as an indigent is rejected,

fresh application is barred; but applicant can sue in the ordinary
manner subject to payment of the costs of the application failing
which Plaint shall be rejected. Rule 15.

● Court has power to grant time for payment of court fees. Rule 15A.
Upon such paymentsuit deemed to be instituted on the date on
which application filed.

● Defence by an indigent by way of set-off or counter-claim – same

procedure. Rule 17.

● Power of Government to provide free legal services to indigent

persons. Rule 18.

K. SUITS INVOLVING A SUBSTANTIAL QUESTION OF LAW AS TO THE

INTERPRETATION OF THE CONSTITUTION OR AS TO THE VALIDITY
OF ANY STATUTORY INSTRUMENT : ORDER XXVII-A

● Any suit in which it appears to the Court that a question referred to in

Article 132 read with Article 147 is involved, the Court cannot proceed
unless notice is given to Attorney- General (if the question concerns the
Central Government) or the Advocate – General (if the question concerns
the State Government). (Rule 1).

● If the suit involves a question as to the validity of any statutory

instrument, then the court cannot proceed without notice to the
Government pleader or the authority which issued the instrument. (Rule
1A)

● Court may also implead the State or Central Government as a party. (Rule

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 2).

L. SUITS BY OR AGAINST MILITARY OR NAVAL MEN OR AIRMEN :

ORDER 28.

● If they cannot obtain leave they can authorize any person to sue or
defend for them (Rule 1).

M. SUITS RELATING TO MATTERS CONCERNING THE FAMILY – ORDER

32A

● To which proceedings the order applies- Order 32A Rule 1-

to suits or proceedings relating to matters concerning the
family, including suits for matrimonial reliefs, declaration of
legitimacy, guardianship suits, adoption suits, wills and
intestacy and succession, etc.

● Special rules: proceedings may be in camera(Rule 2); court

has a duty to make efforts for settlement (Rule 3); court may
take the assistance of a welfare expert (Rule 4).

N. SUITS RELATING TO MORTGAGES OF IMMOVABLE PROPERTY

(Order 34)

● What are the different types of reliefs that parties to a mortgage

transaction might seek from the civil court?

● What procedures would apply to each type of suit?

O. Friendly suits (Section 90, Order 36)

● What is the procedure for stating a case for the court’s opinion?
Parties should enter into an agreement in writing with the

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 proposed relief (Rule 1). The parties shall also mention the
estimated value of the property in the agreement.

● The agreement shall be filed and registered as a suit (Rule 3)

and shall be heard like a regular suit (Rule 5). Thereupon
judgment will be pronounced and a decree will follow.

● No appeal can be filed against the decree as per Rule 6.

P. Suits relating to public nuisance (Section 91)

● What are the essential ingredients of a suit under section 91 of

the Code?

BASIC READING

● Sections 79 to 82, 90, 91, 92 and Orders XXVII to XXXVII of CPC,

1908

● Sections 34 and 35 of Specific Relief Act, 1963

ADDITIONAL READING

Takwani Part 2, Chapter 16

MODULE 6: MISCELLANEOUS PROVISIONS IN THE CODE

Week X

Session 28, 29 & 30 (6 hours)

Page 50 of 55
A. RESTITUTION – SECTION 144.

● What is “restitution”? Even though not defined in the Code, it

means restoring a party the benefit which the other party has
received under a decree subsequently held to be wrong.

● Based on the principle actus curiae neminemgravabit– the act of the

court shall harm no one. An equitable principle. It is the bounden
duty of the court to see that if a person is harmed by a mistake of
the court he should be restored to the position he would have
occupied but for that mistake.

● Note the definition of “decree” in section 2(2).

● What are the pre-conditions for an order of restitution? Before

which courts can such applications be made? What is the aim of
restitution? What is the scope of orders that can be passed in
restitution?

● Does a suit lie to obtain restitution?

B. SAVING OF INHERENT POWERS OF THE COURT – SECTION 151 .

● What are “inherent” powers? Why is there a need to make reference

to them?

● Are inherent powers conferred on the civil court by section 151?

● Which provisions of the Code relate to inherent powers? Sections

148, 149, 151, 152, 153, 153A.

● Examples of situations where section 151 has been invoked:

temporary injunctions not covered by Order 39, clubbing of suits,
directions for in camera proceedings, etc.

● Padam Sen vs State of Uttar Pradesh AIR 1961 SC 218.

C. CAVEAT – section 148A

● What is a “caveat”? A caveat is an entry made in the books of the
offices of a registry or court to prevent a certain step being taken

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 without previous notice to the person entering the caveat.

● When can it be lodged? What is the procedure for lodging a caveat?

● What does a caveat entitle the caveator to?

● What procedure should be adopted if an application is made in a

matter where caveat has been lodged?

● What is the effect of hearing and allowing an application without

the caveator being notified?

D. ENLARGEMENT OF TIME – SECTION 148.

● Under what circumstances can the court enlarge the time given for
a particular act to be done?

E. EXEMPTIONS FROM APPEARANCE AND ARREST UNDER THE

CODE- Sections 132 to 135A
● Can a woman who, according to the customs and manners of the
country ought not to be compelled to appear in public be compelled
to attend court? Section 132. Can such a person be arrested in
execution of civil process?

● Who are the other persons exempt from personal appearance in

court? Section 133. How can such persons be examined?

● Which persons are exempt from arrest under civil process and when
exactly are they exempt? Sections 135 and 135A.

F. PROCEDURE WHERE PERSON TO BE ARRESTED OR PROPERTY

TO BE ATTACHED IS OUTSIDE THE JURISDICTION-section 136.
● Does section 136 apply to arrest and attachment during execution
proceedings?

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G. LANGUAGE OF SUBORDINATE COURTS – SECTIONS 137 AND 138.

H. OATH ON AFFIDAVIT BY WHOM TO BE ADMINISTERED – SECTION

139.

I. ASSESSORS IN CAUSES OF SALVAGE, ETC. – SECTION 140.

J. MISCELLANOUS PROCEEDINGS- SECTION 141

● Does the procedure contemplated in the Code in relation to suits

apply in writ proceedings?

K. ORDERS AND NOTICES TO BE IN WRITING- SECTION 142

L. POSTAGE-SECTION 143

M. CONSENT OR AGREEMENT BY PERSONS UNDER DISABILITY –

SECTION 147.

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N. POWER TO MAKEUP DEFICIENCY OF COURT FEES- SECTION 149.

O. TRANSFER OF BUSINESS – SECTION 150.

P. Amendments of judgments, decrees or orders – section 152.

● What types of mistakes can be corrected under section 152?

Q. General power to amend- section 153

● What types of amendments may be made under section 153?

R. Power to amend decree or order where appeal summarily dismissed-

section 153A

● What was the need for section 153A and when does it specifically
apply?

S. Place of trial deemed to be open court- section 153B

BASIC READING

● Sections 132 to 144, 147 to 153B of CPC, 1908;

● Padam Sen vs State of Uttar Pradesh AIR 1961 SC 218

ADDITIONAL READING

Takwani Part 5, Chapters 2,3,4.

Page 54 of 55
Additional Resources (Indicative only)

1. The Code of Civil Procedure (as amended by act No. 46 of 1999) Vol. I &
II by B.V. Vishwanatha Aiyer, 2000.

2. Code of Civil Procedure: Act V of 1908 Vol. I to IV by Mulla D F, 2002.

3. Code of Civil Procedure (as amended by CPC (Amendment) Act, 1999

and CPC (Amendment) Act, 2002) Vol. I & II, by Sudipto Sarkar
&Manohar V R, 2002.

4. Code of Civil Procedure by Thakker C K &Thakker M C, 2000.

5. On Civil Procedure by JA Jolowicz, Cambridge University Press, 2000.

6. A Treatise on the Anglo-American System of Evidence in Trials at

Common Law, by John Henry Wigmore, Third Edition, Little, Brown
and Co, Boston, 1940.

7. The following Law Commission of India Reports: 14 th, 27th, 54th, 69th,
74th, 77th, 79th, 114th, 120th, 124th, 125th, 131st, 139th, 140th, 144th, 150th,
163rd, 178th, 185th.

8. Report of the Committee on Reforms of Criminal Justice System,

Volume 1, March 2003.

9. Report of the Arrears Committee, 1989-1990.

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