CPC Notes

A “code” is more exhaustive compared to an “act”. The latter is a subset of the former. For
example: The Indian Contract Act is not exhaustive and not all common law doctrines are
addressed in it. Even the IBC has superseded all the existing laws that dealt with distressed
companies and now it is the Code that deals with Insolvency and Bankruptcy extensively.

Under Section 482 of the CrPC, there are inherent powers which are given to the HC in
situations wherein the latter would have to look beyond the provisions of the CrPC in the
interests of justice.

The exhaustive nature of the codes could lead to a restriction on the Courts to look beyond the
letter of the law.

A procedural law must not be enforced in such a way that it causes injustice to the party then it
would be contrary to the very intent of the code which intends for parties to gain justice through
the process.

The idea behind creating a procedure is to further a sense of justice. Through provisions such as
giving notice, time for defendants to file their response, all ensures a sense of justice by giving a
fair hearing to them.

Retrospective Application of the Code of Civil Procedure:

In the case of Shiv Shakthi Co-Op Housing Society v. Swaraj Developers AIR 2003 SC 2434 it
was held that if by a statutory change, the mode of procedure is altered, the parties are to
proceed according to the altered mode, without exception unless there is different stipulation.

Nani Gopal Mitra v. State of Bihar AIR 1970 SC 1636: However, when the procedure is
correctly adopted and concluded under the previous law, the case cannot be reopened for the
purpose of applying the new procedure.
Bank of Baroda v. Motibhai (1985)– In this case a loan was taken by an individual and the Bank
requested the debtor to mortgage the tenanted premises to the Bank. All disputes regarding
tenanted premises were conferred on the revenue courts. But when in this case, the debtor failed
to repay the amount, the Bank sought to recover the debt in a regular civil court. The Civil Court
ruled that it had the jurisdiction to entertain the dispute.

The Supreme Court said that in any mortgage or any kind of transfer of property under the
Tenancy Act is made, the jurisdiction for any dispute is conferred on the Revenue Courts. But, in
this case the primary concern of the case was the recovery of the debt either by way of sale of
the mortgaged security or money suit, and such a suit is very much one of a civil nature and the
civil court did have jurisdiction to entertain the claim.

The case also demonstrates that when we relate suit of civil nature with jurisdiction there is a
third marker that is to be looked into to determine jurisdiction i.e., subject matter. The subject
matter must also be such that the Court can also entertain. The Court in this regard
specifically held that one must have regard to the substance of the matter and not to the
form of the suit.

The court needs to look into 3 aspects: (1) Territoriality, (2) Pecuniary Jurisdiction, and (3)
Subject Matter. These 3 markers need to be satisfied to confer jurisdiction to the Civil Court.

In Topandas v. Gorakhram (1964) the SC held that the basis of determination of jurisdiction is
the averments made in the Plaint. Now if the Plaint is able to establish the correct facts, then he
will be given the required relief. But if the Defendant is able to rebut them then there arises 2
contentions:
a. If the question is about Territorial/Pecuniary Jurisdiction – Then the order will be to
present the plain before the Appropriate Court.
b. If the nature of the facts in the Plaint is such that it is not cognizable by the class of
courts then it would be dismissed in its entirety.

Jurisdiction of a court signifies the power or authority of a court to hear and determine a cause
or a matter. It’s the power to entertain, deal with, and decide a suit, an action, petition, or other
proceedings.
Official Trustee v. Sachindra Nath (1969) – Jurisdiction of a court means that it must have the
power to hear and decide the particular controversy that has arisen between the parties.

The question of jurisdiction strikes at the core of any matter, and no defect of jurisdiction can be
cured by consent of the parties or a decree or order passed by the Court.

Kiran Singh v. Chaman Paswan (1954) – When an order is passed without jurisdiction then that
would amount to nullity and such grounds for the invalidity of an order can be set up whenever
and wherever the order is sought to be enforced or relied upon. This is because the question of
jurisdiction strikes on the very authority of the court and such a defect cannot be cured by
consent of the parties or by decree.

In the same breadth, there is also the counter to the same wherein the Jurisdiction of the Court
cannot be ousted by the consent of the parties since the same would be unlawful and void as per
the decision of the SC in ABC Laminart Ltd. v. AP Agencies (1989).

Jurisdiction of Civil Courts –Section 9 of the CPC1908

As per Section 9 of the Code, a civil court has jurisdiction to try all suits of a civil nature unless
they are barred.

Note: A Civil Court has the inherent power to determine its own jurisdiction as per the decision
of the SC in Bhatia Coop. Housing Society Ltd. v. D.C. Patel (1953).

For jurisdiction to be established under Section 9, there is a dual condition to be fulfilled:

1. SUIT MUST BE ONE OF A CIVIL NATURE - a suit is of a civil nature if the principal question
therein relates to the determination of a civil right and enforcement thereof. It is not the
status of the parties to the suit, but the subject-matter of it which determines whether or
not the suit is of a civil nature.

If the principal question in a suit is of a civil nature (the right to property or to an office)
and the adjudication incidentally involves the determination relating to a caste question
or to religious rights and ceremonies, it does not cease to be a suit of a civil nature and
the jurisdiction of a civil court is not barred.
 2. Cognizance of the suit must not be expressly or impliedly barred:
Now, the extension to the idea of jurisdiction is the idea of “express” or “implied” bar. An
express bar is when the Court’s jurisdiction is barred by a statutory provision or a rule
thereunder. In these circumstances, the Court’s jurisdiction is expressly barred i.e., there are
certain disputes such as those relating to insolvency and company matters cannot be dealt with
by the civil courts.

Implied Bar – If there is a dispute wherein an individual files a case against a judge contending
that the latter was negligent in his duties and that evidence was not duly considered leading to a
wrongful order which led him to bearing extra costs. Courts would not entertain such a suit.

Firm of Illuri Subbayya Chetty & Sons v. State of Andhra Pradesh (1964): In dealing with the
question whether a civil court's jurisdiction to entertain a suit is barred or not, it is necessary to
bear in mind that every presumption should be made in favour of the jurisdiction of a civil court.
The exclusion of jurisdiction of a civil court to entertain civil causes should not be readily
inferred unless the relevant statute contains an express provision to that effect, or leads to a
necessary and inevitable implication of that nature.

Place of Suit

Section 15 of the CPC 1908 – Every suit shall be instituted in the Court of the lowest grade
competent to try it.

This pertains to a pecuniary jurisdiction.

The value of the suit is determined by the Plaintiff. But the Defendant can counter the valuation
of the suit to challenge the jurisdiction of the Court, and then the Court will ask the Plaintiff to
prove the value. If the Plaintiff is able to demonstrate the same and the Defendant is not able to
rebut it, then the valuation presented by the Plaintiff would continue.
 Territorial Jurisdictions – Sections 16-20

Section 16: Suits shall be instituted in the place where the subject matter is situated. This section
deals with the institution of suits relating to immovable properties. The types of suits have been
delineated in Section 16(a) to Section 16(f):

(a) for the recovery of immovable property with or without rent or profits,
(b) for the partition of immovable property, (c) for foreclosure, sale or redemption in the case of
a mortgage of or charge upon immovable property,
(d) or the determination of any other right to or interest in immovable property,
(e) for compensation for wrong to immovable property,
(f) for the recovery of movable property actually under distraint or attachment

But a pertinent aspect to note is that Section 16 is subject to the pecuniary jurisdiction of the
civil court.

But what would happen if the property is situated within the jurisdiction of more than one court.
Now as per Section 17, the recourse would be to file the suit in any Court within the local limits
of whose jurisdiction any portion of the property is situated.

Wrong to Movable Property or Person

As per Section 19 of the Code, when there is a suit for compensation for wrongs done to person
or movable property can be instituted within the local limits of the place where the wrong was
committed or within the local limits of the jurisdiction of the court where the defendant resides,
or carries on business or personally works for gain.

Where such wrong consists of a series of acts, a suit can be filed at any place where any of the
acts has been committed. Similarly, where a wrongful act is committed at one place and the
consequences ensue at another place, a suit can be instituted at the option of the plaintiff where
the action took place or consequences ensued.

Other Suits – Section 20 of the CPC– Cases not covered by any of the preceding 4 Sections.
Section 20(a): Suit can be instituted in the place where the defendant(s) actually and voluntarily
resides, or carries on business, or personally works for gain.

Section 20(c): Suits can be instituted within the local limits of a Court within whose jurisdiction
the cause of action wholly or in part arises.

The nature of Sections 16-20 is such that they are mere technicalities and would not have
consequences if they are not followed, in the sense that they would not be dismissed in its
entirety, rather they would merely have to be presented before the Court which possesses the
jurisdiction to try/entertain the matter.

Moreover, as per Section 21 any objections to the pecuniary or territorial jurisdiction of the
Court should be taken at the earliest possible opportunity at the Court of first instance and
cannot be taken at the Revisional Court or at the Appellate stage unless there has been a
consequent failure of justice and the same has also been affirmed by the Supreme Court in the
case of Hira Lal v. Kali Nath (1962).

Objection to Territorial Jurisdiction

An objection to territorial jurisdiction does not stand on the same footing as a challenge to the
competence of a Court to try the very case. Moreover, the objection to territorial jurisdiction can
be waived off by the party(ies).

Seth Hira Lal Patni v. Sri Kali Nath (1962): The case concerned recovery of commission in
relation to some share transactions that took place in Agra. However, the plaint was filed in the
Bombay High Court taking the permission of the Court. Eventually the case was referred to
arbitration by the BHC and the Appellant agreed to the same. Later during the execution
proceedings of the arbitral award, the Appellant claimed that the BHC lacked the territorial
jurisdiction to entertain the dispute since the cause of action arose in Agra.

The Apex Court held that since the Appellant agreed to submit the dispute to arbitration, he had
essentially waived off his objection to territorial jurisdiction under Section 21 of the Code. If the
defendant allows the trial court to proceed to decide the matter without raising an objection as to
the place of suing and takes the chance of a verdict in his favour, he clearly waives the objection,
and will not be subsequently permitted to raise it.
It is even possible to say that long and continued participation by the defendant in the
proceedings without any protest may, in an appropriate case, amount to a waiver of an objection.

RSDV Finance Co. v. Shree Vallabh Glass Works Ltd. (1993) – Three Part test to determine
whether an objection under Section 21 can be allowed:
1. Objection needs to be taken at the Court of First Instance
2. It was taken at the earliest opportunity
3. There has been a consequent failure of justice.

Policy behind Section 21: As per the decision of the SC in Kiran Singh v. Chaman Paswan
(1954) when a judgement has been rendered on merits then it should not be reversed purely on
technicalities unless it lead to a failure of justice.

Bar of Suit– Section 21A

Section 21-A, as inserted by the Amendment Act of 1976, now specifically provides that no
substantive suit can be filed to set aside a decree passed by a court on an objection as to the
place of suing.

Res Sub Judice (Stay of Suit) – Section 10 of the CPC

Indian Bank v. Maharashtra State Coop. Marketing Federation Ltd. (1998) - A Court cannot
proceed with the trial of any suit in which the matter in issue is also directly and substantially in
issue in a previously instituted suit between the same parties which is pending before the same
court or any court in India that had the jurisdiction to grant the relief claimed.

The Court cannot try and adjudicate the matter on its merits. But it can pass Interim Orders on
the issue.

Furthermore, the explanation to the Section does provide that the pendency of a suit in a foreign
court does not preclude courts in India to try the suit founded on the same cause of action.

Section 10 codifies the principle of Res Sub Judice.

Difference between Lis Pendens and Res Sub Judice: The former deals with a case wherein the
property cannot be dealt with during the pendency of a suit whereas the latter deals with a case
wherein a party cannot file a subsequent suit when a suit is already pending before a Court of
competent jurisdiction.

There are 5 requirements for Section 10:

- There must be two suits – one former and one subsequently instituted
- Same Parties
- Same Issues directly and substantially in both suits
- Both the Courts to be competent to try the matter
- Title of the parties must be same

Manohar Lal Chopra v. Seth Hiralal (1962): When all these 5 conditions are fulfilled then the
latter Court will not have discretion to (indicated by the words “shall” in the provision) entertain
the suit and must stay the suit. When a decree is passed by the Court in contravention to Section
10, and the defendant does not take objection at the first instance (Section 21), then the decree
will not be a nullity.

The entire point behind the provision is to ensure that courts of concurrent jurisdiction are not
simultaneously entertaining and adjudicating upon two parallel proceedings in respect of the
same dispute and for the same relief. This section intends to protect a defendant from a
multiplicity of proceedings and to avoid a conflict of decisions.

The test for Res Sub Judice is that if the former suit were to be adjudicated, then would it
operate as Res Judicata on the subsequent suit whose stay is being requested for?

Principle of Res Judicata

Section 11 of the CPC: No Court can try any suit in which the matter in issue is directly and
substantially in issue in a former suit between the same parties which has been heard and finally
decided by a former competent court.
Same requirements as in Section 10, but just that in Section 11, a subsequent suit which has been
filed post the decision rendered in a former suit on the very same issues shall not be tried by the
subsequent court also of competent jurisdiction.

A suit is a civil action that is instituted through the presentation of a plaint by the Plaintiff. While
determining the scope of the term “suit” we must do so liberally. This means that even writ
petitions, appeals, criminal proceedings, and execution proceedings as well.

Interpretation of Term “Former Suit”

As per Explanation I to the Section, the expression “former suit” shall denote a suit which has
been decided prior to a suit in question whether or not it was instituted prior thereto.

The explanation signifies that it is not the date on which the suit is filed but the date on which
the suit is decided. Therefore, even if the suit is filed later but decided before the subsequent suit
then it would still constitute a “former suit” under the ambit of Section 11 of the Code.

Daryao v. State of Uttar Pradesh (1961): In this case, the petitioners had filed writ petitions
before the Allahabad HC under Article 226 of the Constitution which were dismissed.
Subsequently, the petitioners filed a writ petition under Article 32 of the Constitution before the
SC on the same grounds and claimed the same relief.

Held: The SC dismissed the writ petition under Article 32, since the prior decision of the HC
would operate as res judicata to the current petition. Essentially, the Supreme Court held that the
rule of res judicata applies to a petition filed under Article 32 of the Constitution as well.

The policy behind this rule is that, in the absence of such a rule then there will be no end to
litigations and the parties would be put through constant trouble, harrassment, and expenses.

Satyadhan Ghosal v. Deorjin Debi (1960): Principle under Section 11 is based on giving finality
to judicial decisions. When a matter has been decided the decision is final either because no
appeal was taken to a higher court or appeal was dismissed or no appeal lies, neither party will be
allowed in a future suit to contend the matter again.
Meaning of the Term “Issue” within the Section

There are 3 kinds of issues: (1) Issue of Fact, (2) Issue of Law, (3) Mixed Issue.

First, operates as res judicata on subsequent proceedings regardless of how erroneous it may be.

Second, in the case of Mathura Prasad v. Dossibai NB Jeejeebhoy (1970) it was held that
generally a decision of a competent court even on a point of law operates as res judicata.

However, a pure question of law unrelated to facts which gives rise to a right does not
operate as res judicata. For example: The question of whether the Court has jurisdiction to
entertain the suit is a pure question of law or the Court sanctioning something illegal also falls
under the same umbrella and will not be subject to the doctrine of res judicata.

In the same case, the Court also held that a mixed question of fact and law would also operate as
res judicata.

Thus, when the cause of action is different, or when the law has since the earlier decision been
altered by a competent authority, or when the decision relates to the jurisdiction of a Court to try
the earlier proceeding, or where the earlier decision declared valid a transaction which is
prohibited by law, the decision does not operate as res judicata in a subsequent proceeding.

Counter to Mathura Prasad (Per Incuriam)

Avtar Singh v. Jagjit Singh (1979): The plaintiff filed a suit in a civil court to which the
defendant objected on grounds of lack of jurisdiction and the same was accepted and the plaint
was returned and directed the plaintiff to approach the Revenue Court.

On petitioning the Revenue Court the petition was returned on grounds that the Court did not
have jurisdiction on the issue.

The Plaintiff again approached the Covil Court and the Defendant contended that the suit was
barred by res judicata. The Court took note of the Plaintiff ’s plight but still went on to dismiss
the suit by upholding the defendant’s contention.
The Supreme Court held that if it is the case that the defendant does not appear and the Court
on its own volition returns the plaint then there may not be operation of res judicata on the
subsequent suit, however, if the defendant appears and an issue is raised and decided then the
decision on the issue of jurisdiction would operate as res judicata on the subsequent suit.

NOTE: In the case of Sushil Kumar v. Govind Ram (1990), the Supreme Court opined that the
decision in Avtar Singh was per incuriam and cannot be said to be good law since (1) pure
question of law without relation to facts would not operate as res judicata and (2) Mathura
Prasad case decided by a Bench of 3 judges and was decided before Avtar Singh and the latter
comprised of only a 2 judge bench.

Difference between Res Judicata and Estoppel

Res judicata prohibits a man averring the same thing twice in successive litigations, while
estoppel prevents him from saying one thing at one time and the opposite at another. The rule of
res judicata presumes conclusively the truth of the decision in the former suit, while the rule of
estoppel prevents a party from denying what he has once called the truth. In other words, while
res judicata binds both the parties to a litigation, estoppel binds only that party who made the
previous statement or showed the previous conduct.

Res Judicata results from a decision of the court, whereas estoppel flows from the act of parties.

Difference between Res Judicata and Stare Decisis

The former refers to a situation in which a case is decided or adjudicated upon. Whereas the
latter refers to the principle of standing by decided cases or to uphold precedents. Furthermore,
res judicata operates only between the same parties where the doctrine of stare decisis binds even
strangers and binds courts from taking a contrary view on the point of law which has already
been decided.

Waiver of Res Judicata

As per the case of State of Punjab v. Bua Das Kaushal (1970), the plea of res judicata is one
that can be waives and the Court can decline to go into the question of this ground if it has not
been properly raised in the proceedings or issues.
Meaning of the term “Matter in Issue”
The term “matter in issue” means the rights litigated between the parties i.e., the facts on which
the right is claimed and the applicable law for the determination of that dispute. The matter may
be one of fact, law, or a mix of both.

Matter Directly and Substantially in Issue:

“Directly” – This terms means “immediately” or “without intervention”. A fact cannot be said
to be directly in issue if the judgement rendered by the Court is unaffected by the existence or
non-existence of such a fact.

“Substantially” – Means essential or material. It must be necessary for the decision in a case.
Illustration: A sues B for claiming rent and B denies the existence of any unpaid dues. In this
case the matter directly and substantially in issue is whether there lies a claim for rent or not.

The question whether or not a matter is "directly and substantially in issue" would depend upon
whether a decision on such an issue would materially affect the decision of the suit. The question
has to be determined with reference to the plaint, written statement, issues and judgment.

Vithal Yeshwant v. Shikandarkhan (1963): When there are multiple points on which the
decision of the court rests, each of which is sufficient to determine the case, then each of these
points would be subject to the doctrine of res judicata.

Constructive Res Judicata

As per Explanation IV to Section 11, any matter which might and ought to have been made
ground of defence or attack in such former suit shall be deemed to have been a matter directly
and substantially in issue in such suit.

When a matter which might and ought to have been a ground of attack in the former suit but
has not been made shall be deemed to have been a matter directly and substantially in issue in
such a suit.

Forward Construction Co. v. Prabhat Mandal (1986): A party is bound to bring forward his
whole case in respect of the matter in issue and cannot abstain from relying or giving up any
ground which is in controversy and for consideration before a Court and afterwards make it a
cause of action for a fresh suit.

State of Uttar Pradesh v. Nawab Hussain (1977): A, a sub-inspector of police, was dismissed
from service by the D.I.G. He challenged the order of dismissal by filing a writ petition in the
High Court on the ground that he was not afforded a reasonable opportunity of being heard
before the passing of the order. The contention was, however, negatived and the petition was dis
missed.

He then filed a suit and raised a ground that since he was appointed by the I.G.P., the D.I.G. had
no power to dismiss him. The State contended that the suit was barred by constructive res
judicata. The trial court, the first appellate court as well as the High Court held that the suit was
not barred by res judicata.

Held: The Supreme Court held that the suit was barred by constructive res judicata as the plea
was within the knowledge of the plaintiff and could well have been taken in the earlier writ
petition. The same principle applies to pleas which were taken but not pressed at the time of
hearing.

Interpretation of “Might and Ought”

“Might” – Affected party had knowledge of the ground of attack or defence at the time of the
previous suit.

“Ought” – Compels the party to take the ground of attack or defence at the time of the prior
suit. The test is to see whether such a ground would have defeated, varied, or affected the decree
passed in the previous suit.

The test is conjunctive i.e., both these requirements need to be established in order to find
application of Explanation IV to the subsequent suit.

Matter Collaterally or Incidentally in Issue

A sues B for the rent due. B pleads abatement of rent on the ground that the actual area of the
land is less than that mentioned in the lease deed. The court, however, finds the area greater than
that shown in the lease deed. The finding as to the excess area, being ancillary and incidentally to
the direct and substantial issue, is not res judicata.

A matter is "collaterally or incidentally in issue" if it is necessary to decide it in order to grant

relief to a plaintiff or to a defendant and the decision on such issue either way does not affect the
final judgment.

Gangabai v. Chhabubai (1982): In this case the Respondent took a loan for a certain amount
and executed a nominal sale note and rent note of her house. The Appellant sought to enforce
the note as a sale deed but the Respondent contended that it was merely nominal and not meant
to be acted upon. The Court of small causes ruled on whether the document being referred to
was a sale deed or not. The Respondent filed a subsequent civil suit claiming that she was the
owner of the land and that the so called sale deed was not real and genuine. The Appellant
claimed that the decision of the small causes court operated as res judicata.

Held: Supreme Court negatived the contention of the Appellant since the finding rendered by
the small causes court in the suit filed by the Appellant that the document executed was a sale
deed cannot operate as red judicata in a subsequent suit filed by the Respondent filed on the
basis of title.

In order to operate as res judicata the finding must be one disposing of a matter directly and
substantially in issue in the former suit and the issue should have been heard and finally decided
by the Court trying such suit.

Meaning of the Term “Same Parties”

Put simply, a party is a person whose name appears on the record of the case.

Types of Parties
1. Minors: When a suit is filed against a minor who is duly represented by a guardian or next
friend and a decree is passed in such suit, the decree binds the minor. But if the decree is
obtained against a minor not represented by a guardian or there is fraud, collusion or gross
negligence of the guardian, a decree passed in the suit will not operate as res judicata against
him (minor) in a subsequent suit.
2. Interveners: He is one who intervenes in a suit of which he was not originally a party, with
the court’s permission by either joining the defendant/plaintiff. This party is considered a
party to the suit no matter at which stage he intervenes. Since he becomes a party to the suit
then that suit will operate as res judicata against him or against any suit against him on the
point that has been decided upon.
3. Co-Plaintiffs/Co-Defendants: As per Sheodan Singh v. Daryao Kunwar [AIR 1996 SC
1332] There are 5 conditions to be satisfied for the application of res judicata between
co-defendants:
- Conflict of interest between co-defendants
- Necessary for conflict to be decided for giving relief to plaintiff
- Question between co-defendants must have been finally decided
- Co-defendants were necessary or proper parties in the former suit.
4. Representative Suits:
5. Public Interest Litigations: With regard to Explanation VI of Section 11, if the previous
litigation was a bona fide public interest litigation in respect of a right which was common
and was agitated in common with others, the decision in previous litigation would operate as
res judicata in a subsequent litigation. But if the earlier proceeding was not a bona fide public
interest litigation, the subsequent proceeding would not be barred.

“Same Title”
Third condition to Res Judicata is that the parties in the subsequent suit must be litigating under
the same title as in the previous suit.

What does Title Mean: It is held to mean the capacity or the interest of a party in a dispute.
For example: If you are litigating in a former suit which is a property dispute as the owner of the
property then in the next suit for res judicata to be applicable then he must litigate as the owner
of the property only.

“Competent Court”
Under Section 11, res judicata would only apply when the former suit is decided by a court
competent to try the subsequent suit. The term competent is said to mean that the court must
have been competent the subsequent suit if it was brought at the time the first suit was brought.
This means that the time in question is the time at which the former suit was filed and not when
the subsequent suit was filed.
Types of Courts:
(1) Courts of Exclusive Jurisdiction - If a matter directly and substantially in issue in a former
suit has been adjudicated upon by a court of exclusive jurisdiction, such adjudication will bar the
trial of the same matter in a subsequent suit in an ordinary civil court [Bhagwan Dayal v. Reoti
Devi, AIR 1962 SC 287].
(2) Courts of Limited Jurisdiction– Nabin Majhi v. Tela Majhi [AIR 1978 Cal 440]:

Sulochana Amma v. Narayanan Nair (1994) –

(3) Courts of Concurrent Jurisdiction: Where the court which decided the former suit was a
court of concur rent jurisdiction having competence to try the subsequent suit, the decision
given by it would operate as res judicata in a subsequent suit.

“Heard and Finally Decided”

The requirement is just that the former suit must have been heard and finally decided by a
competent court.

The expression "heard and finally decided" means a matter on which the court has exercised its
judicial mind and has after argument and consideration come to a decision on a contested matter.

As per Sheodan Singh v. Daryao Kunwar (1966): A matter would be said to have been heard
and finally decided when the former court renders a decision on merits of the case. Examples of
decisions not on merits: Misjoinder, defects, grounds not framed properly.

NOTE: As per Jai Narain v. Kedar Nath (1956): The Supreme Court held that res judicata is
applicable to execution proceedings as well in line with Explanation VII of the Code.
 Binding Nature and Conclusivity of Foreign Judgements

Section 13 of the CPC, 1908: A foreign judgement is conclusive on matters directly adjudicated
upon by the same parties or between parties under whom they or any of them claim under the
same title, except when:
(a) Judgement is not made by a Court of competent jurisdiction: Gurdayal Singh v. Raja of
Faridkote (1893-94) PC: A had sued B for a claim amount on the grounds that it had
been misappropriated by the latter during his employment under A. The place of suing
was Faridkote, however B was neither a resident there not domiciled there. However, an
ex parte decree against B was passed in that Court.

Now the Court in Faridkote would not have jurisdiction to pass an order against B just
because A had a claim against him. Therefore, the decree passed against him was an
absolute nullity.

When A sued B in british india on the basis of the judgement in Faridkote, the Privy
Council ruled that the judgment of the foreign court would not be binding since the
former court did not have jurisdiction to determine the dispute.

(b) Decision not given on merits – Idea is that when the foreign judgement is not on
merits, the indian courts can pass a judgement in that case. But when there exists a
judgement from a competent foreign court, then the court in india is not to inquire into
the merits or the substance of the matter. Adjudication means the process of conclusively
determining the rights of the parties.
(c) Appears on the face that its based on incorrect view of intl law or refusal to recognise the
law of india in cases which such law is applicable – Incorrect choice of law [regardless of
whether its due to the acts of parties/act of the Court] would not bind the Indian Courts
– R. Viswanathan v. Rukn-ul-Mulk Syed Abdul (1963) 3 SCR 22.
(d) Proceedings opposed to natural justice - Requisites of impartial judges and fair chance at
hearing the parties must be fulfilled. Either there was no fair hearing given to
parties/failure to eliminate conflict of interest. A foreign judgment of a competent court,
therefore, is conclusive even if it proceeds on an erroneous view of the evidence or the
law, if the minimum requirements of the judicial process are assured
 (e) Judgement obtained by fraud – A.V. Papayya Sastry v. Govt. of A.P (2007) SC: Fraud
would entail the act of deliberate deception with the design of securing unfair or
undeserved benefit by taking undue advantage of another. One pertinent example is the
case of Satya v. Tej Singh, the husband obtained a decree against the wife through fraud
in an American Court and the same was held to be not binding on indian courts.
(f) Sustains a claim which stands in breach of the laws in force in India – if a court allows
for a wagering transaction, then such a claim will not be enforceable in India since
Wagering is not allowed by Indian Law [contract act]. As per Satya v, Teja Singh (1975)
foreign law must not offend the public policy of India.

Section 2(5) of the CPC, 1908 – A foreign court is defined to mean a court situated outside
India and not established or continued by the authority of the central government.

The Section 13 and 14 essentially provide for conclusivity and applicability in terms of foreign
judgements.

The Sections by reference to “conclusive” essentially brings us back to the doctrine of res judicata
since once the matters have been adjudicated upon, parties would not be allowed to file a new
subsequent suit in the courts of India on the very same matters.

Section 14 of the CPC [Presumption as to Foreign Judgements] – On production of the

certified copy of the judgement, it shall be presumed that the court was of competent
jurisdiction, unless the contrary appears on record, but such a presumption may be displaced by
proving want of jurisdiction by the defendant.

As per Narasimha Reddy v. Venkata Lakshmi (1991) SC: A mere production of the copy of
the foreign judgement would not be enough, it must be certified by a representative of the
American Central Government.

Enforcing Foreign Judgements – We either file an Execution Proceeding or a Suit on a

Foreign Judgement.
Suit on Foreign Judgement: The general rule is that a foreign judgement is not binding on the
other country unless the same is embodied in a decree by the court of that country [Roshanlal v.
RB Mohan Singh (1975) SC].

Execution Proceedings: A foreign judgment may also be enforced by proceedings in execution

in certain specified cases mentioned in Section 44-A of the Code. The said section provides that
where a certified copy of a decree of any of the superior courts of any reciprocating territory has
been filed in a District Court, the decree may be executed in India as if it had been passed by the
District Court.

INSTITUTION OF A SUIT
Section 26 of the CPC: Suits can be instituted through the presentation of a plaint or in any
other manner as may be prescribed.

(2) In the plaint, facts should be proved by affidavit.

Essentials for a suit

- Opposing Party -
- Subject matter of dispute
- Cause of Action
- Relief to be claimed

Who may be joined as Plaintiffs – ORDER 1 (Parties to Suits)

Order I Rule 1: All persons may be joined in one suit as plaintiffs where—
(a) any right to relief in respect of, or arising out of, the same act or transaction or series of
acts or transactions is alleged to exist in such persons, whether jointly, severally or in the
alternative; and
(b) if such persons brought separate suits, any common question of law or fact would arise.]

Note: The condition imposed by Order 1 Rule 1 is conjunctive i.e., both HAVE to be satisfied.

Who may be Joined as Defendants

Order I Rule 3: All persons may be joined in one suit as defendants where—
(a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts
or transactions is alleged to exist against such persons, whether jointly, severally or in the
alternative; and (b) if separate suits were brought against such persons, any common question of
law or fact would arise.]

As per Rule 2 and Rule 3A, when the Court determines that joinder of plaintiffs may embarrass
or delay the trial of the suit, the Court may make an order for separate trials to be conducted.

Only those parties who are

(1) necessary indispensable. There are two requirements – (a) relief is claimed against that
person and if that person isn’t added as defendant/plaintiff then decree cannot be passed; or
(2) proper parties to the suit- Maybe a decree can be passed without that party in the
proceeding, but the Court will not be able to have a complete view of the rights and obligations
of the parties.

Kasturi v. Iyyamperumal (2005 SC) – There is a two part test laid down for determining
whether a party is a necessary party or not:
(a) Relief against such party must be claimed in respect of the matter involved, and
(b) Should NOT be possible to pass an effective decree in absence of such a party.

What if we file a case without joining a necessary party [Non Joinder]/ join someone not
necessary to the suit [Misjoinder].

Order I Rule 9 - No suit shall be defeated by reason of the misjoinder or non-joinder of parties,
and the Court may in every suit deal with the matter in controversy so far as regards the rights
and interests of the parties actually before it:

As per Jagan Nath v. Jaswant Singh (1954 SC) the general principle under Order 1 Rule 9 is that
a Court cannot reject a plaint merely on the grounds of non/mis-joinder of parties.

However according to Proviso to Rule 9, this Rule 9 does not apply to non-joinders of
necessary parties. Therefore, this gives the power to the Court to dismiss the suit on the
non-joinder of a necessary party.
Note: As per Church of Christ Charitable Trust & Educational Charitable Society v.
Ponniamman Educational Trust (2012 SC): if the plaintiff persists on not impleading a
necessary party, then the consequences of non-joinder i.e., dismissal of suit shall follow.

Order I Rule 13: Any objection to non/mis-joinders of parties must be taken at the earliest
possible opportunity and if it is not raised then such objections shall be deemed to be waived off.

Adding/Substituting Plaintiffs

Order I Rule 10(1): Suit in the same of the wrong plaintiff - Where a suit has been instituted in
the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted
in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit
has been instituted through a bona fide mistake, and that it is necessary for the
determination of the real matter in dispute so to do, order any other person to be substituted
or added as plaintiff upon such terms as the Court thinks just.

From the provision, we can extract the requirements for its application:
1. Suit filed in same of wrong plaintiff
2. Bona Fide mistake
3. Necessary for determination of the real matter

Striking Out/Adding Names

As per Order I Rule 10(2), at any stage of the proceeding (with/without an application) when it
appears that the name of a plaintiff/defendant has been improperly joined, it can be struck out
and the Court as it deems just, can add the name of the plaintiff or defendant whose presence is
necessary for the Court to effectually and completely adjudicate upon and settle all questions.

Policy: To ensure that all the interested parties are brought before the Court so as to avoid delay
or inconvenience or the inconclusive adjudication of disputes.

Principles to be kept in mind while exercising powers under Order 1 Rule 10(2):
a. Plaintiff is dominus litus: The interest of the plaintiff should dominate since he is the
one who is supposed to choose the person against whom he wants to claim relief and
 that the Court cannot compel him to fight against a person whom the plaintiff does not
want to fight.
b. Court’s power irrespective of the wishes of the Plaintiff: If the Court is satisfied that the
presence of a particular person is necessary to effectively and completely adjudicate
disputes between parties then the Court can exercise its powers regardless of the wishes
of the Plaintiff.

Razia Begum v. Sahebzadi Anwar Begum (1958 SC): A sought a declaration that she was the
legally-wedded wife of B. One C claimed to be another married wife of B and sought to be
added as a party defendant. The prayer was granted since the declaration sought for concerned
the status of marriage and legitimacy of children and would affect the parties for generations to
come.

Thus, the test is not whether the plaintiff agrees to adding a party as a defendant or not, but
whether the relief claimed by the plaintiff will directly affect the intervener in the enjoyment of
his rights. The court must, in every case, record reasons in support of its order impleading or
refusing to implead a party.

Ramesh Hirachand v. Municipal Corpn of Greater Bombay (1992): The plaintiff was a dealer
on the land held by the Hindustan Petroleum Corporation (lessee) and was in possession of a
service station. The Municipal Corporation issued a notice to the plaintiff for demolition of a
certain construction alleging that it was unauthorised. The plaintiff filed a suit for permanent
injunction against the Municipal Corporation. Hindustan Petroleum Corporation applied for
being impleaded as a party defendant on the ground that it had material to show that the
structure was unauthorised. The prayer was granted by the courts below. The plaintiff
approached the Supreme Court.

Held: Order Set aside. The person to be joined must be one whose presence is necessary as a
party. The test is not whether his presence is necessary for the correct solution of the dispute
before the court but whether the order would affect him or his interest would be prejudiced. In
the instant case, the question before the court was whether an unauthorised structure was made
by the plaintiff contrary to the Bombay Provincial Municipal Corporation Act and not whether
such construction was contrary to the agreement between the plaintiff and Hindustan Petroleum
Corporation. It was altogether a different cause of action.
Representative Suit
If a suit is filed by a particular plaintiff and there are 10 more plaintiffs who are also concerned
parties in the case, but when you can’t include them that is the time where a Representative Suit
comes into place.

Now for instance, if a factory is established near a residential complex (10k residents), and the
effluents released by the former has affected the health of the residents however it would not be
possible to join 10k members to the suit. Therefore, a person or the committee can represent the
interests of the entire residential complex.

Diwakar v. State of MP (1984): When there are a number of persons similarly interested in a
suit, one or more of them can, with the permission of the court or upon a direction from the
court, sue or be sued on behalf of themselves and others.

Order I Rule 8: One person may sue or defend on behalf of all in same interest: (1) Where there
are numerous persons having the same interest in one suit —
(a) one or more of such persons may, with the permission of the Court, sue or be sued, or may
defend such suit, on behalf of, or for the benefit of, all persons so interested;
(b) the Court may direct that one or more of such persons may sue or be sued, or may defend
such suit, on behalf of, or for the benefit of, all persons so interested.

Essentials of Representative Suits:

1. Involves Numerous People – Need to be identifiable and several in number.
2. Common Interest in subject matter – Interest is to be common, not the cause of action.
Every person can have a different cause of action [if we take example of the industry
then it could be that some are getting affected by air pollution, some are affected by
water contamination, etc]. However, the interest is common i.e., the industry is located in
a residential area and causing issues.
3. Need permission of the Court – The Court needs to be satisfied that there exists a
bonafide common interest. This permission could be expressly or impliedly granted. Ex:
If a plaint categorically states and argues that there is a common interest and the court
allows the Plaint then the Court has impliedly permitted for a representative suit to be
filed.
 4. Duty of the Court to issue a Notice: As per Order I Rule 8(2), the Court, at the
plaintiff ’s expense, give notice either to the person or through public advertisement to all
the concerned parties. The particulars of the suit must also be detailed out.

Tamil Nadu Housing Board v. TN Ganapathy: In this case, the housing board came up with a
scheme of giving certain houses that were being constructed to people from lower income
backgrounds at a lower price. Subsequently what had happened is that these people, post taking
possession, were asked to pay additional charges over and above the consideration mentioned in
the contract. The matter went to the Court, the Housing Board argued that this could not be a
representative suit since separate notices were issued to the people and each person had a
separate cause of action.

Held: Although there were separate cause of actions through different notices, but we also have
to understand is that their interest is common. The interest being – asking to pay additional fees
over and above the agreed upon amount. This goes against the very intent of the scheme.

FRAME OF SUIT – ORDER II OF THE CPC

Rule 1 [Frame of Suit]: Every suit shall as far as practicable be framed so as to afford ground for
final decision upon the subjects in dispute and to prevent further litigation concerning them.

The object behind Rule 1 is to ensure that all the matters under the same cause of actions should
be dealt with in the same suit so as to prevent further litigation.

Naba Kumar v. Radhashyam (1931): If the Plaintiff does not bring whole of the claim in
respect of the cause of action, then the claim he omits/relinquishes cannot be claimed in a
subsequent suit to prevent a multiplicity of suits and prevent the defendant from being vexed
twice for the same cause.
Gurbux Singh v. Bhooralal (1964): To make Order II Rule 2(2) applicable the following
conditions must be satisfied:
(i) The second suit must be in respect of the same cause of action as that on which the
previous suit was based;
(ii) In respect of that cause of action, the plaintiff was entitled to more than one relief;
and
 (iii) Being thus entitled to more than one relief, the plaintiff without leave of the court
omitted to sue for the relief for which the second suit has been filed

What the rule requires is the unity of all claims based on the same cause of action in one suit. It
does not contemplate unity of distinct and separate causes of action. If the subsequent suit is
based on a different cause of action, the rule will not operate.^"^ The rule is directed to securing
the exhaustion of the relief in respect of a cause of action and not to the inclusion in one and the
same action of different causes of action, even though they arise from the same transaction. For
ex: a suit for specific performance of a contract bars a sub sequent suit for damages for failure to
perform the said contract.

Leave of Court: The rule applies only when leave of the court is not obtained. Therefore, if the
omission has been with the permission of the court, the subsequent suit for the same relief in
respect of the same cause of action is not barred.

Test to determine the barring of suit under Order II Rule 2 as per Mohd. Khalil v. Mahbub Ali
(1947) is whether the claim in the new suit is in fact founded upon a cause of action distinct
from that which was the foundation of the former suit.

INSTITUTION OF SUITS – ORDER IV OF THE CPC

Rule 1 [Suit to be commenced by a Plaint] - —(1) Every suit shall be instituted by presenting 3
[plaint in duplicate to the Court] or such officer as it appoints in this behalf.

The Madras High Court in Assan v. Mathumma (1899), defined a “plaint” to mean a private
memorial tendered to a Court in which a person sets forth his cause of action.

What is not initiated by way of a plaint is not a suit.

However, there is no rule that such presentation must be made either at a particular place or at a
particular time. A judge, therefore, may accept a plaint at his residence or at any other place even
after office hours, though he is not bound to accept it. Idea of institution of a plaint is that it
should be initiated in any way possible before the period of limitation elapses.
 PLEADINGS – ORDER VI OF THE CPC
Under Order VI Rule 1, a plaintiff is said to mean “plaint” or the “written statement”. The point
of a pleading is to state your contentions for the trial and the details so that your opponent can
prepare their case in answer.

There are two ways to go about the resolution of a dispute – (1) ask for a written document to
be presented before the Court which they will go through and determine whether to allow it or
not, or (2) what used to happen in Chancery Courts is that the person used to come and start
speaking about the injustice caused to him and the Court would determine on the basis of the
statements made.

Pleading is anything by which a particular party brings forth the cause of action that it has and
the relief that it seeks.

A written statement is one that claims that the set of facts produced by the Plaintiff are not the
correct ones, and rather that the facts were such that no cause of action ever arose.

Suppose, A enters into an agreement with B for the transfer of property under a threat to
disclose damaging information. In a plaint, A would say that there was a valid agreement
concluded on a particular date and that B refused to execute the agreement and therefore relief
needs to be claimed. Now, B would submit a WS which says that the agreement was not entered
into with the free will of B.

The minute your pleadings are made in writing, then it sets the contours of the case, since the
Court cannot go further than what is mentioned in the Plaint. If you omit to mention something
in the Plaint, then it is assumed that you have relinquished that part of your claim [Order II Rule
2(2)].

Pleadings help the Court to precisely narrow down on the issues.

Four basis rules of pleadings [Order VI Rule 2(1)]

1. Only facts not Law – The parties are expected to solely state the fact on which they rely
upon for their claims. It is for the Court to apply the law to the stated facts.
 2. Only those Facts which are Material – Necessary to establish the cause of action.
Union of India v. Sita Ram Jaiswal (1976): It means all facts upon which the plaintiff's
cause of action or the defendant's defence depends, or, in other words, all those facts
which must be proved in order to establish the plain tiff's right to relief claimed in the
plaint or the defendant's defence in the written statement.

Virendar Singh v. Satpal Singh (2007): The distinction between "material facts" and
"particulars" cannot be over looked. Material facts are primary and basic facts which
must be pleaded by the party in support of the case set up by it. Since the object and
purpose is to enable the opposite party to know the case it has to meet, in absence of
pleading, a party cannot be allowed to lead evidence. Failure to state material facts, hence,
will entail dismissal of the suit. Particulars, on the other hand, are the details of the case.
They amplify, refine and embellish material facts. They give the finishing touch to the
basic contours of a picture already drawn so as to make it full, more detailed and more
informative.

3. Pleadings should be Concise - The words "in a concise form" are definitely suggestive
of the fact that brevity should be adhered to while drafting pleadings. Of course, brevity
should not be at the cost of excluding necessary facts, but it does not mean niggling in
the pleadings.

4. Should state the Fact and not Evidences – When we say evidences, we are not
including the supporting documents that empower the pleadings made. They are just
documents which expand on the briefly stated facts of the dispute. The material facts on
which the plaintiff relies for his claim or the defendant relies for his defence are called
facta probanda, and they must he stated in the plaint or in the written statement, as the case
may be.

Primary purpose of pleading is to apprise the defendants of the issue and for the court to lay
down the factual issues that are in contention.
As per Firm Srinivas Ram Kumar v. Mahabir Prasad (1951): Alternative pleas are allowed to
be taken to ensure that parties are allowed to take whatever they can in the suit which has already
been filed before the court, to avoid multiplicity of suits. For instance, a suit for possession of
property is maintainable on the basis of title or in the alternative on the basis of lease. Similarly, a
landlord can file a suit for eviction of his tenant on the ground of personal requirement or in the
alternative on the ground of non-payment of rent.

Party needs to explain the facts which allow the inconsistent plea to stand. Ex: Initially, you made
the plea that the defendant has exercised undue influence but then you take the alternative plea
that the signatures on the contractual documents are forged, and you did not mention this fact
before. Here the plaintiff needs to show that even after undue influence when the Plaintiff did
not sign, the defendant went on to make a document in his favour. In such a circumstance, the
inconsistent pleas should not be taken without supplementing facts.

Though inconsistent pleas are not impermissible, they are seen with suspicion by the court and
the party really takes risk in adopting this method of pleading. Likewise, a party who takes
inconsistent pleas and tries to establish both of them by contradictory oral evidence, places
himself in peril as the evidence adduced in support of both the pleas would be conflicting,
contradictory and mutually destructive and may hardly inspire confidence.

Signing: Order VI Rule 14 - Every pleading shall be signed by the party and his pleader (if
any) : Provided that where a party pleading is, by reason of absence or for other good cause,
unable to sign the pleading, it may be signed by any person duly authorized by him to sign the
same or to sue or defend on his behalf.

Striking out of Pleadings: Under Order VI Rule 16: The Court may at any stage of the
proceedings order to be struck out or amended any matter in any pleading— (a) which may be
unnecessary, scandalous, frivolous or vexatious, of (b) which may tend to prejudice, embarrass or
delay the fair trail of the suit, or (c) which is otherwise an abuse of the process of the Court.

This power should be used sparingly since striking out pleadings means that those were never a
part of the case.
Plaintiff cannot vary the evidences presented before the Court which substitute the pleadings
itself.

Amendment of Pleadings [Order VI Rule 17]: —The Court may at any stage of the
proceedings allow either party to alter or amend his pleadings in such manner and on such terms
as may be just, and all such amendments shall be made as may be necessary for the purpose of
determining the real questions in controversy between the parties.

Provided that no application for amendment shall be allowed after the trial has commenced,
unless the Court comes to the conclusion that in spite of due diligence, the party could not have
raised the matter before the commencement of trial.

The idea of amendment is that sometimes what could happen is that through a bona fide mistake
certain aspects of one’s claims would not be included in the plaint/WS due to change in
circumstances or new facts coming to light, then such elements shall also be allowed to be
included in the pleadings of either of the parties.

Amendment to pleadings is not a matter of right, rather it’s a matter of discretion left
with the Court.

One must exercise due diligence while drafting the pleadings at the very first stance i.e., when the
plaint is being instituted or when the WS is being filed. Considering the defendant’s condition
wherein he has been given notice of a certain case filed against him, the claims cannot be
completely changed since it would affect the preparation of the defendant’s case.

Before the amendment is allowed the Court needs to see if (1) the amendment is required to
conclusively determine the dispute between the parties and (2) if the amendment would cause
injustice to the other party. And if amendment is sought post the commencement of the Trial,
then the Court must also look at whether (3) the amendment could have been taken before the
trial by the exercise of due diligence by the party.

If the amendment changes the character of the suit or causes injustice to the other party, then the
amendment will not be allowed.

There is no appeal that lies from an order with respect to Order VI Rule 17, therefore it becomes
imperative for the parties to draft their pleadings carefully.

Edevain v. Cohen (1889): In that case, A's furniture was wrongfully removed by B and C. A sued
B for damages and for judgments against B. A then sued C for damages for the same wrong.
After A's evidence was over, C applied for amendment of written statement by pleading
judgment against B as bar to suit against him. B and C being wrongdoers, the judgment against B
precluded A from suing C for the same wrong. The application was rejected since it was not
necessary to decide the real question in controversy between the parties but enabled C to avail
for himself the benefit of the technical rule of law.

Steward v. North Metropolitan Tramways Co. (1886): The plaintiff filed a suit for damages
against the tramway company for damages caused by the negligence of the company in allowing
the tramway to be in defective condition. The company denied the allegation of negligence. It
was not even contended that the company was not the proper party to be sued.

More than six months after the written statement was filed, the company applied for leave to
amend the defence by adding the plea that under the contract entered into between the company
and the local authority the liability to maintain the roadway in proper condition was of the latter
and, therefore, the company was not liable. At the date of the amendment application, the
plaintiff's remedy against the local authority was time-barred.

Had the agreement been pleaded earlier, the plaintiff could have filed a suit even against the local
authority. Under the circumstances, the amendment was refused. Pollock, B. rightly observed,
"The test as to whether the amendment should be allowed is, whether or not the defendants can
amend without placing the plaintiff in such a position that he cannot be recouped, as it were, by
any allowance of costs, or otherwise. Here the action would be wholly displaced by the proposed
amendment and I think it ought not to be allowed.

Weldon v. Neal (1887): A instituted a case of slander against B. The suit had reached a certain
stage and the plaintiff wished to amend his plaint to include claims of false imprisonment as well.
When the application was put forth before the Court, it was barred by limitation to file a suit for
false imprisonment. The Court rejected the Application since it would cause injustice to the
other party if it allows a claim to be filed post the expiry of the limitation period.

In the Metropolitan Tramways Case, the impleading of a new party post the limitation period
would cause injustice to the defendant as well as the plaintiff since it would have to initiate a
whole new cause of action against the Municipal Corporation. The issue was that the Tramway
company did not take objection to such a necessary issue at the very first instance itself. Once
 the limitation period expires, the party ceases to be responsible and then to implead that party
would be against the law and be unjust.

Arundhati Mishra v. Ram Charitra Pandey, (1994) 2 SCC 29: The fact that the claim is barred
by the law of limitation is but one of the factors to be taken into account by the court in
exercising the discretion as to whether the amendment should be allowed, but it does not affect
the power of the court if the amendment is required in the interests of justice.

PLAINT – ORDER VII

Particulars of a Plaint [Order VII Rule 1]
● Rule 1(a): Party should mention the name of the Court in which the suit is brought.
● Rule 1(b): Name, description, and place of residence of the Plaintiff
● Rule 1(c): Name, description, and place of residence of the defendant, so far as they can be
ascertained.
● Rule 1(e): Facts constituting the cause of action and when it arose – Cause of action is each and
every fact which hints towards the wrong committed. In a suit for eviction of the tenant, one
would make the entire buildup by mentioning the parties, and give a background of the
circumstances of the case. They would mention that the agreement was entered into on this
particular date along with the relevant clauses. Then talk about the non-payment of the requisite
rent for the particular period and how the defendant recklessly damaged the property.

Plaintiff is the best judge of his interests (dominus litus) and he will decide how to proceed with
the case. The Court would leave it to the plaintiff to mention the facts of the situation and when
is it that the plaintiff considers that the cause of action has arisen. The cause of action must be
specifically mentioned in the plaint.

● Rule 1(f): Facts that show that the Court has jurisdiction – both territorial and subject matter
jurisdiction.
● Rule 1(g): Relief which the Plaintiff claims. The Court might grant you lesser relief than claimed
but they will not grant you more than what you have claimed. However, during the trial, if they
come across new evidences which are necessary for the final adjudication of the dispute, then
they can for the purposes of adjudication grant reliefs which are not claimed for under the relief
clause of the Plaint.
● Rule 1(h): If the plaintiff is relinquishing a portion of his claim the amount so relinquished must
be mentioned. And such a portion would be barred by Order II Rule 2 of the CPC.

● Rule 1(i): Statement as to the value of the subject matter of suit for the purposes of jurisdiction.
Now the valuation given by the Plaintiff would be considered to examine the pecuniary
jurisdiction of the Court and based on the same, the Court fee would be decided. Plaintiff.

When we look at the verification provided by the Plaintiff, the name of the Court, parties, facts
leading to CoA would be facts which are believed to be true by the Plaintiff himself whereas the
CoA, Jurisdiction of the Court, valuation are verified based upon information received from his
pleaders and are believed to be true [Order VI Rule 15(2)].

Courts generally does not traverse outside the contours set by the Plaint. Now what would
happen in a situation wherein certain facts have arisen post the institution of the plaint.

These facts can be divided into 2: (1) Immaterial, and (2) Material – Interests/Claims of the
parties can be affected if the circumstances are not taken into consideration.
In the case of Amarjit Singh v. Khatoon Quamarain (1986 SC) the SC observed that
subsequent events can be taken into consideration in the pleadings if they are relevant and material.

For Ex: There is a suit filed for partition between 4 brothers. Through the course of time if one
of the brothers passes away, then the shares of the other brothers would stand affected. In this
case, if the Court does not take into consideration this change in circumstance, then the shares of
the other brothers needs to be revised and they cannot be granted the original relief claimed.

Where it is shown that the original relief claimed by the plaintiff has, by reason of subsequent
change in the circumstances, become useless or inappropriate or where it is necessary to take
notice of changed circum stances to shorten litigation, a new relief may serve the purpose better
or that a relief is required to be reshaped or molded in the light of change in facts or in law to do
full and complete justice between the parties.

The Court may allow for the parties to amend their pleadings under Order VI Rule 17 or may
do it suo motu.
Bhajan Lal v. State of Punjab (1971 SC): But where the rights of the parties have already
crystallized and the decision has reached finality, the concluded controversy cannot be reopened
on the basis of subsequent events by divesting a party of the benefit of the right which accrued
to him.

When a plaint is filed there are 3 consequences that follow:

1. Admission of the Plaint– post this, the summons are issued [Order VII Rule 9].

2. Court may return the Plaint – Order VII Rule 10(1) - This happens when it does not have
the territorial, subject matter, or pecuniary jurisdiction to entertain the matter. The Court can
return the plaint at any stage of the suit so as to be presented to the Court in which the suit
should have been instituted. As per Order VII Rule 10(2), on return of the plaint, the Court
must endorse the date of institution and return of the plaint, name of the party presenting it,
and a brief statement recording the reasons for returning it.

As per Order VII Rule 10A, the Court may after hearing the defendant decide to return the
plaint and before doing so, it must intimate its decision to the Plaintiff. As per Order VII
Rule 10A(2), once the plaintiff is given the intimation then he can make an application for 3
reliefs – (a) specifying the Court in which he proposes to present the plaint after its return,
(b) praying for a date of appearance of parties to be set, and (c) requesting for the Court to
give notice to parties for the date so fixed.

3. Rejection of a Plaint – Order VII Rule 11 – Even if the Court does have the jurisdiction to
entertain the dispute, the Court may exercise its discretion to not entertain the suit for other
reasons which are delineated in Rule 11.
(a) Plaint can be rejected when it does not disclose a cause of action: Cannot have a
relief emanating from such a pleading. Even if your case has a cause of action but your
plaint does not mention it, then the Court would still choose to reject the plaint. There is
no distinction created between the treatment afforded to the non-disclosure of your
cause of action and not having a cause of action. Moreover, the Court must ONLY look
at the Plaint while determining whether it discloses a cause of action or not, and nothing
else [Commercial Aviation v. Vimla Pannalal (1988 SC)].
 [Note: In the case that a plaint is rejected, the doctrine of res judicata would not apply
since the Court has not decided upon issues directly and substantially]. This becomes
clearer when we see Order VII Rule 13, wherein it provides that the rejection of the
plaint on the grounds mentioned in Rule 11, would not in itself preclude the plaintiff
from bringing another suit on the same cause of action.
(b) Undervaluation of the Claim by the Plaintiff and failure to correct it within the
time granted by the Court: This is relevant because the court fee and stamp duty to
be paid on your suit would depend on your valuation of the suit. The valuation of the
claim is also relevant from the perspective of the pecuniary jurisdiction of the Court.
Since the valuation of the suit is not correct, then it would mean that the stamp duty and
court fee would not be appropriate as well, then it could be subject to rejection.
However, it could give the Plaintiff time to correct this defect, and even after this period
if the Plaintiff does not correct it then the Court would reject the Plaint. If the suit is so
improperly valued that post the correction, the present Court would not possess
jurisdiction anymore, then the Court would be (1) rejecting the plaint for undervaluation,
and (2) returning the plaint since the Court does not have the jurisdiction to try the
dispute anymore.
(c) Proper value of claim but insufficiently stamped and failure to correct it.
(d) Suit is barred by Law: Could be barred by the Limitation Act, or there are
pre-requisites that need to be fulfilled while filing the plaint. Any plaint which is barred
by either substantive or procedural law would be rejected. Ex: As per Section 80 of the
CPC, no suit can be filed against the Govt or a public official until the 2 month written
notice expires. Therefore, if a suit is filed before the expiry of this period, then it would
be barred by law.

Order VII Rule 14 – Production of documents on which the Plaintiff relies or sues

As per Rule 14(1), the Plaintiff needs to list down the documents and produce in Court and a
copy of the documents must be submitted with the Plaint.

As per Rule 14(3): However if the documents are not added to the list, or annexed to the plaint,
shall not, without the leave of the Court, be received in evidence on his behalf at the time of
hearing the suit.
Rule 14 does not apply to the following circumstances as per Rule 14(4):

(i) Documents reserved for the purpose of cross-examination of the defendant's witnesses;
or
(ii) (it) Documents handed over to a witness merely to refresh his memory.'

Appeals: As per Section 2(2) of the Code, an order which rejects a plaint is covered under the
definition of a decree, therefore it is appealable.

Written Statements, Set-Off, and Counter-Claims: [Order VIII]

W/S – Document which deals with the claims of the Plaintiff wherein it can either admit the
facts and claims made by the plaintiff or categorically denies them and rather provides a
counter-set of facts which the defendant intends to plead in the suit.
As per Order VIII Rule 1, if a suit has been instituted, and the summons has been issued to the
Defendant, then within 30 days of such service, the written statement of defence should be
submitted. The first proviso states that if the defendant fails to file the WS within the time
period, then the Court with reasons recorded in writing, can allow the Defendant to file the WS
not more than 90 days after the date of summons. Now, the Second Proviso also provides that
the Court on reasons in writing, grant additional time to the Defendant upto 120 days post the
service of summons. On the expiry of the 120 days period, the defendant shall forfeit the right to
file the WS and the Court shall not allow the WS to be taken on record.

However, the Supreme Court has laid down that the usage of the word “shall” should be read as
“may” thereby giving the Court the discretion to allow the filing of the WS even after the period
of 30, 90, or 120 days if it is of the opinion that the time period was not sufficient or that the
Defendant could not file it due to some extraordinary reasons.

Kailash v. Nanhku (2005 SC)

The Court was dealing with the nature of the time limit provided for in the First proviso to Order
VIII Rule 1. The Court took note of the fact that procedural niceties should advance the cause
of justice and that rules of procedure are handmaids of justice. Procedural law may be
interpreted liberally to advance the cause of justice since processual law ought not to be
constructed in such a way that the Court becomes helpless in extraordinary situations to meet
the ends of justice.

Held: The time period is merely directory, and not mandatory and imperative.

Salem Advocate Bar Association (2) v. Union of India(2005 SC) – LEADING CASE
The Court in this case was dealing with the powers of a civil court under Order VIII Rule 10
wherein when a defendant fails to file a WS post the expiry period as per Order VIII Rule 1/9,
then the Court shall pronounce a judgement against him or make an order in relation to the suit
as it thinks fit.

Held: The Court interpreted that the use of the word “shall” does confer discretion on the Court
to pass an order as it deems fit in the case. This means that under the powers conferred by Rule
10, the Court could permit a defendant to file his WS post the expiry of the 90 day period as
well. However, such a power must not be exercised in a routine manner, rather it must be noted
that time can be extended only in exceptionally hard cases. The Court specifically held that this
power must not be frequently and routinely exercised so as to nullify the purpose of Order VIII
Rule 1.

Denial of Claims to be Specific: As per Order VIII Rule 3, the defendant must specifically deal
with each allegation of fact of which he does not admit the truth; generally denying it will not be
sufficient.

Defences that can be taken by the Defendant in the WS

Order VIII Rule 6 [Set-Off]: If a monetary claim is pending at the instance of the plaintiff and
the defendant also has a monetary claim pending. Then you can take the defence in the WS that
while he is not required to pay, however in light of the payment claimed to be due, he is entitled
to set-off. Where there are mutual debts between the plaintiff and the defendant, one debt may
be settled against the other.
Requirements of Set-off under Rule 6:
a. There must be a suit for recovery of money – Ex: Suit for breach of contract for specific
performance would not be covered under the doctrine of set-off.
b. Amount sought to be recovered must be ascertained – It should be ascertained by the
Defendant based on some metrics at the time of filing the WS, and the Court is not required
to apply its mind to ascertain the sum.
c. Amount to set-off must be legally recoverable: Money is due from a legally binding
agreement say a contract, lease, etc. Also, if the recovery of money is barred by limitation,
then it will not be legally recoverable since setoff is not a means of enforcing time barred
debts.

Time barred debts in law are recoverable in only 2 ways:

- Sec 57-60 ICA: The debtor against whom the debt is time barred gives the money and does
not specify which debt it is to be appropriated against.
- Sec 25 ICA: Agreement without consideration of a time barred debt.

d. Amount to be recoverable from the Plaintiff/all the plaintiffs or by the Defendant or

all the Defendants: If sum cannot be recovered against all the Plaintiffs, then the set-off
would not come into play. Ex: A, B, C, are partners in a partnership firm, and D is the
defendant. If D only has a claim against B in a personal claim, then the set-off would not
operate, since it’s not recoverable against all the plaintiffs.
e. Amount to be recovered must be within the pecuniary jurisdiction of the Court

Note: If the defendant denies the existence of the contract throughout the WS, but then he
pleads in arguendo and says that even if he has a liability, it is subject to set-off. Now, this
pleading would be considered an alternative pleading.

Note: The Defendant needs to pay Court fee for the amount claimed to be set-off.

Effect of Set-Off [Order VIII Rule 7]: Where the plaintiff does not appear and bis suit is
dismissed for default, or be withdraws bis suit, or be fails to substantiate bis claim at the trial and
bis suit is dismissed, it does not affect the claim for a set-off by the defendant and a decree may
be passed in favour of the defendant is able is able to prove his claim.

Equitable Set-Off: Can seek for set-off of a sum even if it is not ascertained. Furthermore, a
claim which is barred by limitation can still be claimed if it relates to a claim arising out of a
fiduciary relationship. Here, even if the sum is not ascertained and it is barred by limitation, it
can be set-off at the discretion of the Court. Moreover, there is no Court fee required to be paid by
the Defendant.

Other than a legal setoff as above, one can also claim an equitable setoff. It does not have such
rigid restrictions. An equitable setoff means that in a transaction, one can seek for a setoff even
for an unascertained amount that forms a part of the same transaction. In that situation, the
court will grant an equitable setoff even for an unascertained amount as long as it is part of the
same transaction. Ex: Where A sues B to recover Rs 50,000 under a contract, B can claim set-off
towards damages sustained by him due to breach of the same contract by A.

Ex. Sale of goods contract - time is of the essence and date and time were given. Contract was
performed late; but delivery was accepted along with claim for damages. Buyer also refuses to
pay the price of goods. Seller files for recovery of price. Buyer in setoff, claims for damages
suffered due to late performance. The court cannot grant a legal setoff since damages are
unascertained. However, the court can grant an equitable setoff provided it is proved that the
amounts are parts of the same transaction [sale of goods contract].

Differences between a legal setoff and equitable setoff

- Legal setoff is where the sum must be ascertained although transactions may be different. In
an equitable setoff, the opposite is true.
- The defendant can claim a legal setoff as a matter of right however, an equitable setoff is at
the discretion of the court.
- If the claim is barred by limitation on the date of filing, a legal setoff cannot be claimed;
however, in an equitable setoff, if barred by limitation but pertaining to a fiduciary
relationship, courts may still grant the setoff.
- In a legal setoff, the defendant must pay the court fee whereas in an equitable setoff this is
not mandatory since the sum is unascertained.

Setting off a larger amount in a claim/suit for a smaller amount - Counterclaims

In such cases, a setoff is not possible; rather, there is a counter-claim filed. A counter claim is a
plaint, not just in the nature of the plaint. For setoff to operate, it should be such that it must be
recoverable on the date of filing of the plaint. In a counter-claim, the money should be
recoverable on the date of filing of written statement.
When drafting a counterclaim, all requirements of order 6 are to be fulfilled. Can plead a
counterclaim with the WS and ask leave of the court, to amend the WS or even file a successive
pleading.

Transaction need not be the same

Counterclaim is not affected by withdrawal, etc. Of the plaintiff's suit. Even if there is a stay on
the plaintiff's suit, the counterclaim will still stand.

B files a claim in one court for damages from contract 1. C is the defendant. B files another suit
for breach of contract 2. Here C files a counterclaim for damages. Res sub-judice will apply for
B's suit. However, C's counterclaim will proceed since it was not taken in the first suit.

Counterclaim [Order VIII Rule 6A,6B, 6C]

Ex: Say B is suing A for 20k whereas A wants to set off 50k, is it possible? In this case it is not a
set-off, and rather it is a counter-claim by the defendant. A counterclaim is a claim whereas a
set-off is a defence.

A counterclaim is independent and separable from the claim made by the Plaintiff.

Laxmidas v. Nanabhai (1964 SC): The Supreme Court held that, while counter-claims would
not strictly fulfill the requirements of a Plaint, it would still not be a sufficient reason to deny that
the Court can reasonably construe the pleadings are grant relief. It would be treated as a Plaint as
per Order VIII Rule 6A(4) and the rules applicable to plaints will also be adhered to [For a
counter-claim to be filed, all the requirements of Order VI and VII are to be fulfilled].

As per Order VIII Rule 6B, the defendant shall in his written statement state specifically that he
is relying upon any grounds as supporting a right of counter-claim.

Modes of Setting up a counter-claim:

1. WS – Order VIII Rule 1
 2. Subsequent Pleadings – As per Order VIII Rule 9, a counter-claim can be set up by the
Defendant with the leave of the Court, and a time limit of not more than 30 days would
be enforced.
3. Amendment to Written Statement

As per Order VIII Rule 6D, Even if there is a stay, discontinuance, or dismissal of the Plaintiff ’s
suit, the counter-claim can still stand. The Court can pronounce a judgement on both the
original claim as well as the counter-claim.

Order VIII Rule 6A(3): The Plaintiff would also have the right to file a WS in respect of the
counter-claim.

Counterclaim v. Setoff
Set Off Counter Claim
1. Defence to Plaintiff ’s claims 1. It’s a claim in itself
2. Counter-claim need not arise out of the
2. Must arise out of the same transaction
same transaction
3. Amount to be recoverable at the date of 3. Amount to be recoverable at the time of
the filing of the suit filing the WS
4. Usually amount is lesser than Plaintiff ’s 4. Usually the claim amount is higher than
claim the Plaintiff ’s claim

ORDER V - SUMMONS
DEFINITION OF SUMMONS: When a suit has been instituted by the Plaintiff, then the opposing
party needs to be informed of the same, and the intimation sent to the defendant by the Court,
for them to appear and defend their case, is termed as a summons.

The concept of summons is in consonance with the notion of natural justice in respect of audi
alteram partem. If the defendant is not served with the summons, a decree passed against him will
not bind him.

Order V Rule 1(1): Upon due institution of a suit, a summons may be served on the defendant
to appear before the Court and to file the WS within 30 days of the date of summons on the
defendant.

Time Period to File WS: 30 days extendable upto 90 as per Proviso 2, and upper limit of 120 days
as per Proviso 3.
Fixing Hearing Date: As per Order V Rule 6, the date of appearance for the Defendant shall
be sent post consideration of (1) current business of the Court, (2) time necessary for the service
of the summons, and (3) time shall be fixed with due regard being given to allow the defendant
reasonable time to appear and answer before the Court on the fixed date.

Who may appear: As per Order V Rule 1(2), the following can appear: (a) The defendant in
person, (b) pleader instructed by the Defendant, and (3) Pleader along with a person who can
answer all questions.

Requirements of a Summons: As per Order V Rule 1(3), each summons must be signed by
the Judge or such officer as appointed along with the seal of the Court and a Copy of the Plaint
must be annexed along with the Summons in accordance with Order V Rule 2.

As under Section 27 of the CPC, a summons needs to be sent not exceeding 30 days from the
institution of the suit.

What happens if the Court deems it necessary for the Defendant/Plaintiff to be present:
As per Order V Rule 3(1), if the Court sees reason for the Defendant to be present in person,
then it may issue summons requiring him to appear before the Court on a specified day. And as
per Sub-Rule (2), the Plaintiff may also be required to appear in person on the same day by way
of an order directing the same.

Restriction to the In-person requirement: As per Order V Rule 4, no person shall be required
to appear in person unless they reside:
(a) Within the local limits of the Court’s original jurisdiction
(b) At a place less than 50 (where there is public conveyance for 5/6th of the distance) or less
than 200 miles distance from the Court house.

As per Section 132(1) of the Code, women who are ought not to be compelled to appear in
public due to customs and manners are exempt from personal appearance before the Court.

Furthermore, the individuals listed under Section 133(1) of the Code, are entitled to an exemption
from personal appearance. For example: (i) President of India, (b) VP of India, (c) Speaker of
Lok Sabha, etc.
Specifying Purpose of the Hearing: Under Order V Rule 5, the Court at the time of issuing
the summons must specify the purpose of the hearing i.e., either its for the settlement of issues
or for the final disposal of the suit.

In case, it is for the settlement of issues, then the Plaint and the Defendant’s WS will be relied
upon to determine the contentious issues between the parties. In such a scenario, it is sufficient
for the Pleader to appear on behalf of the Defendant.

Whereas, in case it is for the final disposal of the suit, as per Order V Rule 8, the defendant
would be directed the produce his witnesses on which he is going to rely upon for his case, on
the prescribed date of the hearing.

Service of Summons: The service of summons is of primary importance as it is a fundamental

rule of the law of procedure that a party must have a fair and reasonable notice of the legal
proceedings initiated against him so that he can defend himself.

Mode of Service: As per Order V Rule 10, the Summons shall be served by delivering or giving
a copy of the same signed by the judge/officer with the seal of the court. Furthermore, in case
there is more than one defendant, the summons shall be served on each of them as per Order V
Rule 11.

If practicable, the summons should be served to the defendant in person or to his authorised
agent [Order V Rule 12].

What if the Defendant is not at his residence when the summons is to be served: Now, in such a
situation, if the Defendant is not to be found near the residence in a reasonable time, the service
of summons can be made on an adult male or female member of the family who is residing with
them in accordance with Order V Rule 15.

Receipt of Summons: Once the summons is served on the defendant or his agent then they
shall be required to acknowledge the service endorsed on the original summons as per Order V
Rule 16.
The serving officer, thereafter, must make an endorsement on the original summons stating the
time and manner of service thereof and the name and address of the person, if any, identifying
the person served and witnessing the delivery or tender of summons as per Order V Rule 18.

Delivery of Summons by Court: Order V Rule 9(1) Where the defendant resides within the
jurisdiction of the Court in which the suit is instituted, or has an agent resident within that
jurisdiction who is empowered to accept the service of the summons, the summons shall, unless
the Court otherwise directs, be delivered or sent either to the proper officer to be served by him
or one of his subordinates or to such courier services as are approved by the Court.

Order V Rule 9(3) The services of summons may be made by delivering or transmitting a copy
thereof by registered post acknowledgment due [RPAD], addressed to the defendant or his agent
empowered to accept the service or by speed post or by such courier services as are approved by
the High Court or by the Court referred to in sub-rule (1) or by any other means of transmission
of documents (including fax message or electronic mail service) provided by the rules made by
the High Court:

Provided: Provided that the service of summons under this sub-rule shall be made at the
expenses of the plaintiff.

Summons given by the Plaintiff: Order V Rule 9A: The Court may, in addition to the service
of summons under rule 9, on the application of the plaintiff for the issue of a summons for the
appearance of the defendant, permit such plaintiff to effect service of such summons on such
defendant and shall, in such a case, deliver the summons to such plaintiff for service.

Refusal of Summons: As per Order V Rule 9(5): If the acknowledgment that has been signed
by the Defendant is received by the Court with an endorsement to the effect that the Defendant
has refused to accept the summons then the Court shall treat the same as the summons being
duly served.

No means of serving Summons: If the Defendant/Agent refuses to sign, or the Serving

Officer cannot find the Defendant after exercising due diligence or any other person to serve the
summons to, then he can affix a copy of the summons on the door or any conspicuous part of
the house where the defendant ordinarily resides or carries on business or works personally for
gain and return the Original to the Court, and submit a report with the name and address of
defendant and the person in whose presence the copy was affixed as prescribed under Order V
Rule 17.

Defendant Resides in the Jurisdiction of Another Court: In accordance with Order V Rule
21 the summons can be issued by the Court addressed to any Court [not being the HC] which
has jurisdiction over the area in which the defendant resides.

Use of Letter as Summons: If the Court considers a person to be of such mark of

consideration, then the Court can issue a letter instead of a summons and be signed by the
Judge/Officer [Order V Rule 30(1)].

The letter shall contain the particulars as required by a Summons and shall be treated as one
[Order V Rule 30(2)]. It shall be sent by the Court through a special messenger or a manner in
which it deems fit to the defendant or his authorised agent [Order V Rule 30(3)].

APPEARANCE OF PARTIES AND CONSEQUENCE OF NON-APPEARANCE– ORDER IX

Rule 1: Parties to appear on day fixed in summons for defendant to appear and answer—On the
day fixed in the summons for the defendant to appear and answer, the parties shall be in
attendance at the Court-house in person or by their respective pleaders, and the suit shall then be
heard unless the hearing is adjourned to a future day fixed by the Court.

Rule 2: Dismissal of suit where summons not served in consequence of plaintiff's failure to pay
costs—Where on the day so fixed it is found that summons has not been served upon the
defendant in consequence of the failure of the plaintiff to pay the court-fee or postal charges, if
any, chargeable for such service, or failure to present copies of the plaint as required by rule 9 of
Order VII, the Court may make an order that the suit be dismissed.

Rule 3: Where neither party appears suit to be dismissed—Where neither party appears when
the suit is called on for hearing, the court may make an order that the suit be dismissed.

As per Rule 4, if a suit is dismissed under Rule 2/Rule 3, he can apply for the order of dismissal
to be set aside [known as vacation of the order – meaning that the order should be taken back] if he
satisfies the court that there was sufficient cause for his non-appearance, or he can bring a fresh
suit.

What shall happen if only the Plaintiff Appears and not the Defendant:

This would warrant the application of Order IX Rule 6 wherein

(a) When summons duly served.—if it is proved that the summons was duly served, the
Court may make an order that the suit shall be heard ex parte
(b) When summons not duly served.—if it is not proved that the summons was duly served,
the Court shall direct a second summons to be issued and served on the defendant;
(c) When summons served but not in due time.—if it is proved that the summons was served
on the defendant, but not in sufficient time to enable him to appear and answer on the
day fixed in the summons,
the Court shall postpone the hearing of the suit to a future day to be fixed by the Court, and
shall direct notice of such day to be given to the defendant
What happens when only the Defendant appears: Order IX Rule 8

Order IX Rule 9: When the plaintiff ’s suit is dismissed partly or fully under Rule 8, then he is
barred from bringing a fresh suit on the same cause of action, unless he can satisfy the Court
that there is sufficient reason for his non-appearance so that the Court can set aside the order of
dismissal and impose costs as it thinks fit.

Idea of sufficient cause should be read liberally. If there is a genuine case like the person was not
in the country itself.

Order IX Rule 10: When there are multiple plaintiffs, and only one or more of them appear,
then the Court shall proceed in the same way as if all plaintiff ’s had appeared and pass an order
as it deems fit.

Whereas with respect to non-appearance of one or more several defendants: The Court shall
proceed with the suit and at the time of judgement it can pass an order with respect to the other
defendants as it deems fit under Order IX Rule 11.
Ex-Parte Decrees against Defendant
Order IX Rule 13:

A defendant can go to the Court for seeking the vacation of an ex parte decree. Ex parte decree
can be treated as any other decree and one can appeal it as well.

Course of actions against ex parte decree:

1. Seek the vacation of the decree
2. Appeal against the Decree before the Higher Court
3. Seek the review of the Decree – Filed before the same Court.
4. If there is Fraud on part of the plaintiff, then the Defendant can take this fraud as the cause
of action to file a fresh suit. Ex: If the Plaintiff knows the new address of the defendant, but
he serves summons only on the old address and there are repeated summons sent there.
Then the Defendant can claim fraud on the plaintiff.

These 4 methods are concurrent and simultaneous.

Explanation to Order IX Rule 13: If the Appellate Court says that the ex parte decree would
not be vacated, then no application shall lie under Order IX Rule 13.

If the Application for sufficient cause does not fall under the ambit of Rule 13, the Court cannot
interpret the rule against the express provisions of the statute. Sufficient cause is something that
is not fraudulent or actions that show that the person was willfully absenting the hearing.

Material Date for determining sufficient case: The material date is the date on which the ex
parte decree is passed. The sufficient cause should exist on that particular day/period. As under
Order IX Rule 6, when the ex parte hearings are ordered, and the Defendant does not appear
throughout this period, he would have to prove under Rule 13 that there was sufficient cause for
non-appearance during this period.

All the provisions in this order and not mandatory, but rather they are directory.

Application to vacate an order of dismissal of suit/ex-parte decree, under Order IX may be

allowed when the Plaintiff/Defendant as the case may be, shows that there sufficient or good
cause for the vacation of the order/decree, and the term sufficient cause is to be liberally
interpreted.
 CPC Post Mid Sems Notes
First Hearing
Post the presentation of the Plaint and the filing of the WS, the Court engages in the settlement
of issues, and the day on which the Court does the same is known as the first hearing of the suit.

Siraj Ahmad v. Prem Nath: The Supreme Court stated, "The date of first hearing of a suit
under the Code is ordinarily understood to be the date on which the court proposes to apply its
mind to the contentions in the pleadings of the parties to the suit and in the documents filed by
them for the purpose of framing the issues to be decided in the suit. As per Order XIV Rule 3,
the Court can frame issues through allegations made on oath by the parties, allegations in
pleadings or in answers to interrogatories, or through the documents produced by either party.

Under Order X Rule 1, the j can ascertain the admission or denial of allegations of fact through
which the Judge will be able to proceed with the case more intelligently.

An issue will be framed when a material proposition of law or fact is alleged by one and denied
by the other [Order XIV Rule 1(1)]. The Plaintiff must allege the same to show a right to sue
and claim relief and the Defendant must deny the same to constitute a defence [Order XIV
Rule 1(2)]. Using the pleadings of the parties the Court makes an attempt to narrow down the
scope of the dispute and bring to the fore the real controversy between the parties.

Jurisdictional questions and determinations of bar of suit can be treated as preliminary issues
before the Court adjudicates the merits of the case between the parties.

The framing of issues becomes pertinent since they guide the parties in leading evidence, and
moreover, it restricts the scope of the suit as the Court cannot frame issues which do not arise in
the course of the pleadings. Therefore, it is imperative that the Court applies its mind with due
diligence to understand the facts of the case and dispute involved. The issues framed must NOT
be vague or evasive, rather they need to be specific and clear. If issues are not framed properly
they can be amended at any stage of the Trial.

Post the procedure followed in Rule 1, the Court can order the parties to go for ADR as per
Rule 1A and the parties are to appear before the appropriate forum as per Rule 1 B. If such
means fail, then the Parties are to appear before the Court as per Rule 1C.
 DISCOVERY
In technical terms, a discovery is to compel the other party to disclose material facts or
documents within their possession or power on which the other party seeks to rely upon. This is
usually done after the settlement of issues through which one party can ask the other to disclose
documents or facts. However, it can happen at any time, say even after the framing of the issues
since as per Order XIV Rule 3(b), Court can use interrogatories to frame the issues.

INTERROGATORIES [ORDER XI RULE 2]

Idea is that you require the other party to answer certain questions that you have prepared for
the other party. Through the process of answering these questions you get to know the pertinent
facts.

The interrogatories are delivered to understand the nature of the Defendant’s case so as to be in
a position to either prepare your case better or to destroy their case. Through the answers to
interrogatories the party would obtain (a) admissions or (b) be able to impeach or destroy the
case of the Defendant. They would help narrow the points in issue and save further expenses by
allowing a party to gain access to material facts or admissions regarding certain questions in the
suit.

RULE 2(1): In any suit the plaintiff or defendant by leave of the court may deliver interrogatories
in writing for the examination of the opposite parties or any one or more of such parties, and
such interrogatories when delivered shall have a note at the foot thereof stating which of such
interrogatories each of such persons is required to answer:

Note: Interrogatories are administered to parties to the suit and sometimes they can also be
administered against parties which are not technically arrayed to the Court but are in substance
and reality a party to the suit. Ex: Agent Principal Relationship in a suit – Attorney General v.
Gaskill [1882].

Interrogatories to Corporations: As per Order XI Rule 2(5), interrogatory must be addressed to

the Officer in the company who has the authority to answer such questions.

MINORS/PERSONS WITH UNSOUND MIND: To be addressed to next best person or their gardians.

Union Bank of London v. Manby: Interrogatories can be made at any stage, but the leave
cannot be granted to the Plaintiff or Defendant before the submission of the WS by the
Defendant.

Provided that no party shall deliver more than one set of interrogatories to the same party
without an order for that purpose:

Provided further that interrogatories which do not relate to any matters in question in the suit
shall be deemed irrelevant, notwithstanding that they might be admissible on the oral
cross-examination of a witness.
This process is not oral, rather they are asked in the written form and submitted to the Court
first which will allow the Court to peruse such questions and determine whether the questions
are vexatious, scandalous, or vexatious, if no then the Court permits such questions to be asked
[Order XI Rule 2(7)]. Parties can also file objections to answering interrogatories under Order
XI Rule 2(6), if it is scandalous, irrelevant, or not claimed for bona fide purposes or immaterial in
nature or protected by privilege.

Interrogatories must be related to the matter in issue in the suit. It should have a nexus with the
matter in issue [Order XI Rule 2(1)]. As per UOI v. Ibrahim Uddin, They need not be directed
to the facts directly in issue. It is sufficient if they are relevant to the matters in question in the
suit.

Attorney General v. Gaskill: Interrogatories cannot be disallowed on the ground that the party
interrogating has other means of proving the facts in question, since one of the purposes of
interrogatories is to obtain admissions from the opposite party.

Only questions with respect to facts must be answered, and any point of law or construction of
any document or inference of a certain document/facts need not be answered.

Interrogatories which are not in public interest cannot be asked for [Order XI Rule 2(7)]. Facts
which are privileged [between spouses, attorney client privilege (Section 126 of the IEA) cannot
be asked to be disclosed through interrogatives.

Interrogatories should not be premature in nature. If a particular fact is ONLY required in a

case only when a particular issue has been settled then if you ask for that fact before the primary
issue is settled, then such interrogatory is one that is premature. Say you file a case against
another saying that you are his agent and for him to show the accounts of the agency to
determine commission for the same. The primary issue here is to determine whether this person
is his agent or not. Asking for accounts before the settlement of this issue would be premature.

Short Note on cases where Interrogatories will not be allowed:

- Purpose of an interrogatory is to discover facts and not the evidence utilised by the other
party to establish their case.
- Privileged Communication cannot be demanded through interrogatory
- Disclosure of information harmful to public interests can be denied.
- Operation of Rule 2(6).
- Interrogatories in the nature of cross-examination will not be allowed
- Fishing - vague questions should not be framed so as to be able to try and get some
information in your favour. You need to be specific in your question.
- Operation of Rule 2(7).

An interrogatory can only be sent to the other party with the leave of the Court. Court shall
make the decision within 7 days of the Application for the interrogatory [Order XI Rule 2(2)].
Then, as per Order XI Rule 2(8), interrogatories shall be answered on affidavit within 10 days
OR any such time prescribed by the Court.
FAILURE TO COMPLY WITH AN ORDER: As per Order XI Rule 11, where any person fails to
comply with an order to answer interrogatories, his suit can be dismissed if he is a plaintiff, or his
defence can be struck off if he is a defendant.

The instrument through which you ask questions/interrogate the other party is known as an
"interrogatories". It could be with regards to new facts or documents whether or not they exist.
It can be used to understand the effect of statements made by the other party.

Sometimes you not only need to know facts, but you also need to know what all documents are
in possession of the other party. In that particular case, you need not ask any specific question or
mention the name of that document, you can apply to the Court that the other party may be
required on affidavit to produce a certain set or names of all documents which are in
power/possession of the other party which are relevant and pertinent to the present dispute.

Say X goes to court saying his father made a will in his favour, and as a result, he is the sole heir
of his father. The defendant may say that the will came into existence because X forged the
signature in the will. So there may be documents pertaining to incidents where X has forged
documents earlier that help prove this, although these documents may not be relevant to the
particular case.

This is not the stage of evidence; this is still the stage of ascertainment of facts. The purpose of
interrogatives can also be to extract admissions, if the other party responds to a question in
contravention to their pleadings, then this can be considered as an admission.

Parties are at liberty to not produce those documents which they have reserved for the evidence
stage. But apart from that all such necessary documents must be attached in the pleadings itself
or produced on the application for discovery.

DISCOVERY OF DOCUMENTS [Order XI Rule 12]

A party may apply to the court to ask the other party to present all the documents in its power of
possession which are relevant to the matter in the suit – as for the documents which are no
longer in that party’s power of possession, the party has to explain what happened and in whose
power of possession they are now.

A document which is inadmissible in evidence can be asked for.

For ex: In a particular case which concerns succession and there are 5 wills which are in question
and all parties have agreed that these wills are the ones which re contentious but there are in fact
10 wills which were made but the preceding 5 wills had been superseded by the present wills.
Those wills would not be admissible in evidence but it can be asked to be produced to show it
feeds into the dispute.

Object of discovery of docs is to require a particular party to name all the documents, on
affidavit, which exist in their power or possession as on the date of the approved application by
the Court
Consequence of not producing a document under Order XI Rule 5(4): The Court may draw an
adverse inference against a party refusing to produce such document after issuance of a notice to
produce and where sufficient reasons for such non-production are not given and order costs.

Order XI Rule 12: —Any party may, without filing any affidavit, apply to the Court for an order
directing any other party to any suit to make discovery on oath of the documents which are or
have been in his possession or power, relating to any matter in question therein.

On the hearing of such application the Court may either refuse or adjourn the same, if
satisfied that such discovery is not necessary, or not necessary at that stage of the suit, or make
such order, either generally or limited to certain classes of documents, as may, in its discretion be
thought fit:

Provided that discovery shall not be ordered when and so far as the Court shall be of opinion that
it is not necessary either for disposing fairly of the suit or for saving costs.

If the court makes an order for discovery, the opposite party is bound to make an affidavit
of documents [Order XI Rule 13] and, if he fails to do so, he will be subject to the penalties
specified in Rule 21. An affidavit of documents shall set forth all the documents which are, or
have been, in his possession or power relating to the matter in question in the proceedings.

M.L. Sethi v. R.P. Kapur (1972 SC): In relation to the documents which are not, but have been
in the other party’s possession or power, they must state what has become of them and in whose
possession they are, in order to enable the other party to get production from the persons who
have possession of them.

The case ruled on the purpose of the application i.e., if it is filed to delay the proceedings or that
the documents being subject to discovery are immaterial or irrelevant, then the Application
under Rule 12 will be rejected by the Court.

The Court also held that the document must be admissible in evidence for it to be ordered in
discovery. Lastly, the Court also opined that documents which constitute the evidence of the
other party cannot be ordered under discovery because the one party is not to use this provision
to seek information regarding how the opposing party is going to establish their claim.

Object of the Section:

- Seeking the disclosure of the material documents in the power or possession of the other
party
- Reduce protracted enquiry into material documents in power or possession of the other
party.

Such objectives aid in the administration of justice since it expedites the process of trial through
eliciting admissions on issues and obviates the need for lengthy evidence.
Discoveries can be rejected if it is “unduly oppressive” to the other party. It depends on the facts
and circumstances. There is a consideration given to the importance attached to the discovery by
the person seeking it and the counter burden set up on the other party making the discovery.

OBJECTIONS TO DISCOVERY: The objection to discoveries can be taken on the grounds that it is
not material/necessary at that stage of the suit. The objection must be taken clearly and expressly
in the affidavit.

For example: Simply claiming that a document is privileged will not allow you to object to a
discovery, rather you should state how they are privileged to allow the Court to decide the claim.

Effect of Non-Compliance with Order of Discovery

Rule 21: Where any party fails to comply with any order to answer interrogatories, or for
discovery or inspection of documents, he shall, if a plaintiff, be liable to have his suit
dismissed for want of prosecution, and, if a defendant, to have his defence, if any, struck
out, and to be placed in the same position as if he had not defended, and the party interrogating
or seeking discovery or inspection may apply to the Court for an order to that effect and [an
order may be made on such application accordingly, after notice to the parties and after giving
them a reasonable opportunity of being heard.]

[(2) Where an order is made under sub-rule (1) dismissing any suit, the plaintiff shall be
precluded from bringing a fresh suit on the same cause of action]

Note: Effect of Non-Compliance –

(a) Plaintiff liable to have his suit dismissed – Moreover as per Rule 21(2), if the suit is
dismissed because of Rule 21(1), then he is precluded from bringing a new suit on the
same cause of action.
(b) Defendant is liable to have his defence struck out.

Admissions - Order XII of the CPC 1908

As per Order XII Rule 1, any party can admit the truth of the whole or any part of the case of
any other party through notice or pleadings or otherwise in writing.

Idea of Admissions: Court will dispense with the requirement of evidence to prove a claim
which has been alleged by one party and admitted by the other party. It is the best and the
strongest piece of evidence since the facts admitted need not be proved. It saves time, expenses
and expedites trial. What a party admits to be true should be presumed to be true.

As per Geo-Group Communications Inc. v. IOL Broadband Ltd., an admission is not conclusive
as to the truth of the matter stated therein. It is only a piece of evidence, the weight to be
attached to such admission should depend upon circumstances under which it was made. It can
be shown to be erroneous or untrue.
DAV College v. Padmanabha Radhy (1988): It is well-settled that an admission must be taken as
a whole or not at all. It is not open to a court to accept a part of it and reject the rest.

Order XII Rule 6 - Judgment on admissions - Judgement with respect to the admissions can be
made at any stage of the suit on its own motion or on application by a party without the
determination of any other question- discretionary rule and cannot be asked as a matter of right.

A party can, under this rule, move for a judgment upon the admission made by the opposite
party and thus get rid of the portion of the action in which there is no dispute. In Uttam Singh
Duggal & Co. Ltd. v. United Bank of India, the Supreme Court held that where a claim is
admitted, the court has jurisdiction to enter a judgment for the plaintiff and to pass a decree on
admitted claim.

Himani Alloys Ltd. v. Tata Steel Ltd (2011 SC): The court has to exercise judicial discretion,
keeping in mind that a judgment on admission is a judgment without trial which permanently
denies any remedy to the defendant by way of appeal on merits.
Ways of securing admissions:
1. Interrogatories
2. Pleadings
3. Give Notice

Order XIII - Production, Impounding, and Return of Documents

Rule 1(1): Pleader on or before the settlement of issues to produce all documents in original or
the copies of the same which have been filed with the Plaint/WS. As per R 1(2), the filing of
documents must be accompanied by an accurate list of documents in the form prescribed by the
HC.

Madanlal v. Shyamlal (2002 SC): It seeks to prevent belated production of documents which
may cause prejudice to the other side.

ADMISSION OF DOCUMENTS
Rule 4(1): Subject to the provisions of the next following sub-rule, there shall be endorsed on
every document which has been admitted in evidence in the suit the following particulars,
namely:— (a) the number and title of the suit, (b) the name of the person producing the
document, (c) the date on which it was produced, and (d) a statement of its having been so
admitted; and the endorsement shall be signed or initialled by the Judge.

RETURN OF DOCUMENTS

Rule 9(1): Any person, whether a party to the suit or not, desirous of receiving back any
documents produced by him in the suit and placed on the record shall, unless the document is
impounded under rule 8, be entitled to receive back the same,—
(a) where the suit is one in which an appeal is not allowed, when the suit has been disposed of,
and
(b) where the suit is one in which an appeal is allowed, when the Court is satisfied that the time
for preferring an appeal has elapsed and that no appeal has been preferred or, if an appeal has
been preferred, when the appeal has been disposed of:

REJECTION OF DOCUMENTS
Rule 3: The Court may at any stage of the suit reject any document which it considers irrelevant
or otherwise inadmissible, recording the grounds of such rejection.

Procedure to Reject under Rule 6: The Court may at any stage of the suit reject any document
which it considers irrelevant or otherwise inadmissible, recording the grounds of such rejection
endorsed thereon the particulars mentioned in clauses (a), (b) and (c) of rule 4, sub-rule (1)
together with a statement of its having been rejected, and the endorsement shall be signed or
initialled by the Judge.

IMPOUNDING OF A DOCUMENT
RULE 8: Notwithstanding anything contained in rule 5 or rule 7 of this Order or in rule 17 of
Order VII, the Court may, if it sees sufficient cause, direct any document or book produced
before it in any suit to be impounded and kept in the custody of an officer of the Court, for
such period and subject to such conditions as the Court thinks fit.
 INTERIM ORDERS
Relevant Provisions:
1. Payment into Court [Order XXIV];
2. Security of Costs [Order XXV];
3. Commissions [Order XXVI];
4. Injunctions [Order XXXIX];
5. Interlocutory Orders [Order XXXIX];
6. Appointment of Receiver [Order XXXIX].

Interim Orders may be passed for reasons which can support the Court or the procedure.
During the pendency of the suit.

PAYMENT INTO COURT [ORDER XXIV]

RULE 1: If a particular case is instituted for damages, or recovery of money, etc, then the
defendant accepting his liability to that regard can deposit a sum in the Court at any stage of the
suit which he considers to be the full satisfaction of the claims.

Rule 4(1) Procedure where plaintiff accepts deposit as satisfaction in part—Where the
plaintiff accepts such amount as satisfaction in part only of his claim, he may prosecute his suit
for the balance; and, if the Court decides that the deposit by the defendant was a full satisfaction
of the plaintiff's claim, the plaintiff shall pay the costs of the suit incurred after the deposit and
the costs incurred previous thereto, so far as they were caused by excess in the plaintiff's
claim.

Rule 4(2) Procedure where he accepts it as satisfaction in full—Where the plaintiff accepts
such amount as satisfaction in full of his claim, he shall present to the Court a statement
to that effect, and such statement shall be filed and the Court shall pronounce judgment
accordingly; and, in directing by whom the costs of each party are to be paid, the Court shall
consider which of the parties is most to blame for the litigation.

Illustration (b): B sues A under the circumstances mentioned in illustration (a). On the plaint
being filed, A disputes the claim. Afterwards A pays the money into Court. B accepts in full
satisfaction of his claim. The Court should also give B his cost of suit. A's conduct having shown
that the litigation was necessary

Idea of interim measure by the Court wherein the suit may be at any stage (frame of issues, filing
of pleadings, evidence – pendency of determination of the suit) but the Defendant if he feels so
may apply to the Court and submit the claimed amount in full or in part.
The Judgement pronounced in Rule 4(2) is not an interim order.
 SECURITY WITH REGARD TO COSTS [Order XXV]

Rule 1: At any point of time on the application of the Defendant or at its own motion, can pass
an order requiring the Plaintiff to submit a security with the Court which shall be used in
payment of costs of the suit in case the Plaintiff does not pay or there is reason to believe that if
not for the security the recovery of costs would not be possible.

The power can be exercised by the Court suo motu or it can be exercised on application by the
Defendant. The provisions apply to a minor plaintiff as well.

Vinod Seth v. Devinder Balaji (2010 SC): The object of the rule is to provide for the protection
of the defendants in certain cases where, in the event of success, they may have difficulty in
realising their costs from the plaintiff.

If the Plaintiff does not abide by Orders passed under Order XXV, then the Court has the
discretion to dismiss the suit.

The Proviso, mentions that the Court shall make an order in all cases where the Plaintiff not a
resident of India and does not possess any insufficient immovable property other than the
property in suit.

Rule 2(2): Where a suit is dismissed under this rule, the plaintiff may apply for an order to set
the dismissal aside and, if it is proved to the satisfaction of the Court that he was prevented by
any sufficient cause from furnishing the security within the time allowed, the Court shall set aside
the dismissal upon such terms as to security; costs or otherwise as it thinks fit, and shall appoint
a day for proceeding with the suit.

COMMISSIONS [ORDER XXVI]

A commission may be issued for 7 purposes as provided under Section 75 of the Code.

1. Examination of Witnesses [Rule 1-8]: Usually the statements from witnesses should be
taken in open Court and tested by cross examination. However, if the person is sick or infirm
then the Court can relax the requirement of attendance by issuing a Commission.

As per Proviso to Rule 1, a Commission shall not be issued unless there are reasons recorded
by the Court that deems it necessary. There should be fair hearing given to the other party
during the Court’s determination as to the appointment of a Commission. As per Rule 1, the
Court can issue a commission for the examination of a witness who resides within the local
limits of the Court’s jurisdiction if they are exempted from the code from attending Court or
who is sick or infirm so as to be unable to attend Court.

It is a discretionary power vested with the Court and it can issue a commission either on the
application by a party or suo motu [Bandhua Mukti Morcha v. UOI (1984) and Rule 2].
 Instances in which the Court can order commissions:
a. Paramhansa (always in naked condition) – Paramhansa v. Trimbak Rajaram
b. Witness apprehends danger to life if he appears before the Court – Vinayak Trading Co.
v. Sham Sundar & Co.

As per Rule 4, commissions can be issued in respect of the following persons:

(a) any person resident beyond the local limits of its jurisdiction;
(b) any person who is about to leave such limits before the date on which he is required to
be examined in Court; and
(c) any person in the service of the Government who cannot in the opinion of the Court,
attend without detriment to the public service

Under Rule 4A, the Court can in the interests of justice or for the expeditious disposal of the
case of any other reason, issue a commission for the examination of a witness or interrogatories
of any person within the local limits of the Court.

As under Rule 5, examination of persons situated outside India can also be issued is deemed
necessary by the Court or a letter of request will be issued.

According to Rule 8, Statements taken by the Commission shall not be read into the evidence
without the consent of the party against whom such evidence was gathered unless:
(a) The person who gave the evidence is beyond the jurisdiction of the Court, or dead or unable
from sickness or infirmity to attend to be personally examined, or exempted from personal
appearance in Court, or is a [person in the service of the Government] who cannot, in the
opinion of the Court, attend without detriment to the public service, or

(b) the Court in its discretion dispenses with the proof of any of the circumstances mentioned in
clause (a) and authorizes the evidence of any person being read as evidence in the suit,
notwithstanding proof that the cause for taking such evidence by commission has ceased at
the time of reading the same.

2. Local Investigation [Rule 9-10]: It may so happen that the Court may require the
commission to gather the facts from the surrounding of where the situation occurred. For
example: Requiring the commission to go and ascertain the market value of the property by
examining the value of the property in the particular area, the market conditions, determining
mesne profits, annual net profits, etc. It can also be issued to elucidate any matter in the
dispute.
3. Adjust Accounts [Rule 11-12]: Requiring a commission to check whether the entry has been
adjusted in the accounts or not, or even inspect the accounts to see what adjustments are
required. As per Rule 12(1), the Court can give the Commissioner the necessary instructions
as to whether he is required to merely transmit the proceedings or even give his own opinion
on the matter.

4. To make Partition [Rule 13-14]: Commission may be issued to see to it that the Partition is
duly effectuated and the concerned parties get their respective shares. The Commissioner
 shall, after such inquiry as may be necessary, divide the property into the required number of
shares and allot them to the parties. He will then prepare a report appointing the share of
each party and distinguishing the same by metes and bounds and transmit it to the court.
The court shall, after hearing the objections of different parties, make the final allotment.

5. Rule 10C: Commission for Sale of Movable Property: Where, in any suit, it becomes
necessary to sell any movable property which is in the custody of the Court pending the
determination of the suit and which cannot be conveniently preserved, the Court may, if,
for reasons to be recorded, it is of opinion that it is necessary or expedient in the
interests of justice so to do, issue a commission to such person as it thinks fit, directing
him to conduct such sale and report thereon to the Court.

6. To conduct scientific investigation [Rule 10A]: Where any question arising in a suit
involves any scientific investigation which cannot, in the opinion of the Court, be
conveniently conducted before the Court, the Court may, if it thinks it necessary or
expedient in the interests of justice so to do, issue a commission to such person as it
thinks fit, directing him to inquire into such question and report thereon to the Court.

7. To perform ministerial acts [Rule 10B]: Where any question arising in a suit involves the
performance of any ministerial act which cannot, in the opinion of the court, be conveniently
performed before the court, the court may, if, for reasons to be recorded, is of opinion that it
is necessary or expedient in the interest of justice so to do, issue a commission to such
person as it thinks fit, directing him to perform that ministerial act and report thereon to the
court.

Powers of Commissioner[Rule 16]

- Power to summon the parties or witnesses to give evidence in the matter [Rule 16(a)].
Commissioner can proceed in an ex-parte manner if the party or the witness does not appear
even after being summoned and can draw adverse inference against them as well.
- To call for and examine documents relevant to the inquiry [Rule 16(b)]
- Entitled to enter upon any property or land by order of the Court and does not need
anyone’s permission [Rule 16(c)].

Expenses associated with a Commission: As per Rule 15, the person applying for the
issuance of a Commission is to bear the costs associated with the Commission by paying into the
Court the costs deemed to be reasonable by the Court.

The Court cannot issue a commission to perform purely judicial function. For instance, as per
VV Dravid v. State, a commission cannot be appointed to scrutinise votes at the election, but it
can be entrusted work of separating undisputed votes from disputed votes or of counting votes
as it is merely a ministerial work. Moreover, a commission cannot be appointed to collect
evidence for a party.

Once a Commission has been issued, whatever evidences that the Commission gets is admissible
as if the Court itself had found out these facts.
 Arrest before Judgment [Order 38 Rule 1-5]

These provisions exist for the purpose of ensuring that the defendant is not engaging in activities
that would render the execution of the decree passed against them infructuous. Therefore, under
O 38 R 1, The plaintiff can ask for the arrest or the attachment of the property of the defendant
even before the Judgement on the following grounds by satisfying the Court through an affidavit
or otherwise that:
(a) Defendant with the intent to delay the plaintiff or to avoid the process of the
Court/obstruct/delay the execution of the decree
(i) Has absconded the local limits of the Court’s jurisdiction
(ii) Is about to abscond or leave the local limits of the Court’s jurisdiction
(iii) Has disposed or removed the property completely/in part from the local limits
of the Court’s jurisdiction
(b) About to leave India which would result in obstruction or delay in execution of decree by
plaintiff

On these aforementioned grounds, the Court can issue a warrant to arrest the defendant to
require his attendance in Court so as to show cause as to why there should not be a security
imposed for his attendance.

However, if the Defendant pays the officer the amount mentioned in the warrant in satisfaction
of the Plaintiff ’s claim, then he is not to be arrested.

The Court should exercise its mind while satisfying itself that there is a real danger that the
Defendant will abscond the jurisdiction of the Court as per Raman Engineering v. Solanki
Traders (2008 SC).

The Court can exercise this power on Application by the Plaintiff any time post the presentation
of the Plaint and even before the summons is issued to the Defendant. As per V. Balakrishnan
v. J.M. Gowrieshan (2001 Madras High Court ) two conditions need to be satisfied to exercise
this power under Rule 1:
(a) Case of the plaintiff must bebona fide and the cause of action must be unimpeachable
(b) Court must satisfy itself from the materials before it that there is a real danger of the
Defendant absconding the jurisdiction of the Court

Failure to Show Cause under Rule 1: If the Defendant is not able to establish cause as to
non-imposition of security, then the Court under Rule 2(1) can:
- Order the deposit of a sum equivalent to answer the claim
- Order for the defendant to furnish security for his appearance at ANY time till the suit is
pending and until the satisfaction of a decree that may be passed again him
- Make any such order which it deems fit in regard to the sum to be paid

As per Rule 2(2), every surety for the appearance of a defendant shall bind himself, in default of
such appearance, to pay any sum of money which the defendant may be ordered to pay in the
suit.
Failure to Furnish Security [Rule 4]: Where the defendant fails to comply with any order under
rule 2 or rule 3, the Court may commit him to the civil prison until the decision of the suit or,
where a decree is passed against the defendant, until the decree has been satisfied.

Proviso 1: No can be detained for more than six months nor for a period longer than 6 weeks if
the amount in the claim or subject matter does not exceed 50 Rs.

Proviso 2: No detention in compliance with the order.

Attachment before Judgement [Rule 5-13]

As observed by the Supreme Court in the 1982 case of Sardar Govindrao v. Devi Sahai, the
purpose of ordering an attachment of the defendant’s property before the judgement is to ensure
that the decree passed against the defendant is not rendered infructuous and that the Plaintiff is
afforded a guarantee to be able to satisfy his claim through the available property.

Under Rule 5(1), if the plaintiff can satisfy the Court through an affidavit or otherwise that the
Defendant with the intent to obstruct or delay the execution of any decree against him is:
(a) About to dispose of the property in full or in part
(b) About to remove a part or whole of the property from the local limits of the Court

The Court can order within a fixed time for the Defendant to furnish a security in such sum to
be specified by the order to be produced and placed at the disposal of the Court when required,
the said property or the value of the same or such portion sufficient to satisfy the decree OR to
appear and establish cause as to why he must not furnish security.

The plaintiff, unless directed to the contrary by the Court, shall specify the property that is to be
attached along with its estimated value as provided for under Rule 5(2).

However, the Plaintiff cannot ask for agricultural produce in the possession of the Defendant to
be attached before the judgement in accordance with Rule 12.

Failure to show cause or furnish security [Rule 6(1)]: Where the defendant fails to show
cause why he should not furnish security, or fails to furnish the security required, within the time
fixed by the court, the court may order that the property specified, or such portion thereof as
appears sufficient to satisfy any decree which may be passed in the suit, be attached.

Suppose the Decree is passed in favour of the Plaintiff, as per Rule 11, they need not apply for
the reattachment of the property during the stage of execution.

However, if the defendant furnishes security or the suit is dismissed, then the Court shall order
the withdrawal of the attachment of the property as per Rule 9.

Discretion of the Court: This power is one that is extraordinary in nature and due caution
MUST be exercised to avoid these provisions from becoming a means to oppress the defendant
or unreasonably deprive them of the right to alienate the property [Raman Engineering v.
Solanki Traders (2008 SC)].

Similar to provisions on arrest before Judgement, the aforementioned case laid down conditions
to be satisfied for an attachment to be ordered:
(a) Defendant is about to dispose of the property in full or in part
(b) Disposal is being made with the intent to obstruct or delay the relief that would be
granted to the plaintiff and against the Defendant

There needs to be convincing proof that the order of attachment is required for the protection
of the plaintiff and such power must not be exercised mechanically. Rather, utmost caution and
circumspection must guide the Court in order to ensure that the provisions are not utilised to
coerce the defendant to come to terms with the plaintiff ’s case.

As per the Madras High Court in T. Srinivasan v. V. Srinivasan (1985), the mandates to follow
before passing an order of attachment must be adhered to, and on the failure to adhere to the
same, the order would have to be ignored in light of the dereliction of duty by the Court

Principles laid down by the Calcutta High Court in the 1951 decision of
Premraj Mundra v. Mohd. Maneck Gazi:
(a) Circumstances under 5(1) are a question of fact and must be proved to the satisfaction of
the Court.
(b) Simply because no harm or prejudice would be done to the defendant is no reason to
order an attachment
(c) Affidavits must NOT be vague. Source of information and grounds for belief must be
stated.
(d) Mere allegation that defendant was selling off the property is not sufficient, there must
be particulars.
(e) Previous transactions can be considered but object is to prevent any FUTURE
alienations of property.
(f) Simply because a portion of the property was disposed, cannot be immediately assumed
to mean that it was done with the intent to defraud the plaintiff.
(g) That the mere fact of transfer is not enough, since nobody can be prevented from
dealing with his properties simply because a suit has been filed. There must be additional
circumstances to show that the transfer is with an intention to delay or defeat the
plaintiff's claim.
(h) The fact that the defendant is in insolvent circumstances or in acute financial
embarrassment is a relevant circumstance, but not by itself sufficient.
(i) Before the institution of the suit/upon receiving notice of the Plaintiff ’s claim, the
Defendant starts disposing off his property, could be interpreted to mean that this was
done to delay or obstruct the claim of the Plaintiff.
(j) Adverse inference with respect to moving the property out of the Court’s jurisdiction
when it done suddenly and without any satisfactory reason
 (k) Sale of property at grossly low value or benami transactions are good indicators of
malicious intent but the Court needs to exercise due caution while examining such
evidence and must NOT rely on vague allegations.

Attachment obtained on Insufficient or unreasonable grounds [Section 95 of the CPC]

If on the Application of the defendant, appears to the Court that the attachment or arrest of the
property of the defendant or his person respectively were applied for on insufficient grounds or
that there was no reasonable or probable grounds for the same, it can order the Plaintiff to pay
an amount not exceeding Rs. 50,000/- as it deems fit to compensate the defendant for their
injury or expenses.

Conditional Attachment [Rule 5(3)]

Court has the power to order the conditional attachment of the property as a whole or in part. ,
However, it is open to the defendant and his right to show cause against attachment has not
been affected. Final order of attachment should be passed only after affording an opportunity of
hearing to the defendant.

Rights of Third Party[Rule 10]

On the attachment before judgement, the rights of third parties existing before the attachment
will not be affected. It would also not bar a person who has an existing decree against the
Defendant from seeking sale of property to satisfy the decree.
 Temporary Injunctions and Interlocutory Orders [Order XXXIX]

INJUNCTION: Remedy in equity. An injunction, unlike an order against a property or order against
a belonging of a person, it’s an order that operates in personam and operates against the conduct
of the person against whom it is passed. It basically is an order which requires a particular party
to conduct itself in a prescribed manner.

By definition, injunction can direct parties to either refrain from doing something or carry out a
particular act. Through a mandatory injunction a party is either ordered to carry out a particular
act whereas through a prohibitory injunction it is prohibited from doing or continuing to do a
particular act.

Mandatory Injunctions: Can ONLY be granted in exceptional and compelling circumstances

where injury complained of is immediate and damages cannot compensate for it. Rarest of rare
cases since it is used to restore status quo, and moreover it cannot be claimed for establishing a
newer stage of things. It has a higher burden of proof than a prohibitory injunction.

Injunctions can further be classified into

(1) Temporary - Restrains a party from doing something or directs them to do something till the
disposal or the suit or till further instructions from the Court; and
(2) Permanent or Perpetual Injunctions - Restraints a party from doing something perpetually
and this can ONLY be granted at the conclusion of the Trial.

Moreover, the stage at which the injunction is granted also gives rise to certain
sub-classifications:
1. Ad-Interim: granted without the final decision on the Application for interim injunction
2. Interim: granted on the final decision with respect to the interim injunction and operates
till the end of the suit. Where a court grants interim injunction or relief for a limited
period, it comes to an end on the expiry of that period.

Interim Injunction is passed in the currency of the suit. Comes to an end when the suit is
disposed of. It’s an interim preventive relief and cannot in any case extend beyond the disposal of
the suit and it's passed on the application of one of the parties to the dispute. It's sought for in a
case of any kind – matrimonial, contractual, IPR, company law, etc.

The idea behind such a power is that the Court can preserve the property till the complete
adjudication of rights. More generally - to maintain status quo so as to prevent changes before
the determination of the suit and prevent possible injury to either of the parties.

Types of reliefs that can be granted through the injunction - As per Rule 1, the court can
order for the staying and preventing the wasting, damaging, alienation, sale, removal, or
disposition of the property as the Court deems fit until the disposal of the suit or till further
orders from the Court.
As the balance has to be struck between the parties to the dispute, it is obvious that Injunctions
can be sought for by either of the parties. However, injunctions can ONLY be sought against the
parties to the suit and NOT strangers/third parties [Ganga Bricks v. Bhagwan Swarup].

Since the nature of the remedy is equitable in nature, the Applicant cannot ask for an injunction
as a matter of right, since it's a matter left to the discretion of the Court and it will not grant
relief as a matter of course. An injunction will only be granted if justice, equity, and good
conscience allow the same.

Grounds

Rule 1: Temporary injunction may be granted by a court in the following cases:

(a) where any property in dispute in a suit is in danger of being wasted, damaged or alienated by
any party to the suit, or wrongfully sold in execution of a decree (Order 39, R. 1 (a)); or
(b) where a defendant threatens or intends to remove or dispose of his property with a view to
defrauding his creditors (R 1 (b)); or
(c) where a defendant threatens to dispossess the plaintiff or otherwise cause injury to the
plaintiff in relation to relation to any property in dispute in the suit (R 1 (c); or
(d) where a defendant is about to commit a breach of contract, or other injury of any kind (R
2(1)b); or
(e) where a court is of the opinion that the interest of justices or so requires (Manohar Lal
Chopra v. Seth Hiralal)

Order XXXIX Rule 1 (Suit concerning Properties): Where in any suit it is proved by affidavit or
otherwise—
(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by
any party to the suit, or wrongfully sold in execution of a decree, or
(b) that the defendant threatens, or intends, to remove or dispose of his property with a view to
5 [defrauding] his creditors;
[(c) that the defendant threatens to dispossess, the plaintiff or otherwise cause injury to the
plaintiff in relation to any property in dispute in the suit,]

The Court may by order grant a temporary injunction to restrain such act, or make such other
order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal
or disposition of the property 1 [or dispossession of the plaintiff, or otherwise causing injury to
the plaintiff in relation to any property in dispute in the suit] as the Court thinks fit, until the
disposal of the suit or until further orders.

Rule 2(1) [Restrain from committing further breaches of Contract]: In any suit for restraining
the defendant from committing a breach of contract or other injury of any kind, whether
compensation is claimed in the suit or not, the plaintiff may, at any time after the
commencement of the suit, and either before or after judgment, apply to the Court for a
temporary injunction to restrain the defendant from committing the breach of contract or injury
complained of, or any breach of contract or injury of a like kind arising out of the same contract
or relating to the same property or right.
Perpetual Injunction operates in perpetuity i.e., until the subject matter exists or until the
interest in the matter remains. It is only passed after the complete adjudication of the dispute and
not at the premature stage.

If there is a suit which does not pertain to the properties or breach of contract, say labour
disputes. Then can there be an injunction under Order XXXIX of the Code? In such situations,
since Order 39 talks about injunction only in 2 cases, an injunction can be granted in any other
circumstances through the inherent powers under Section 151 of the Code in the interests of
justice, equity, and good conscience. In CPC the inherent powers extend to the trial Courts as
well [compared to Section 482 CrPC which is only vested with the HCs]. Idea is that in any suit
of civil nature, the Courts may grant an injunction.

The basic underlying principle behind injunctions is to maintain the status quo to avoid
causing irreparable harm. It’s to ensure that neither party suffers a loss during the pendency of
the suit which would render the decree infructuous. Moreover, it’s a remedy in equity.

If you say that injunction is a relief before the final adjudication, then this relief is at discretion of
the Court and the possibility of cases in which these reliefs may be granted are also numerous.
There need to be sound principles guiding the Court in granting these orders so as to not disrupt
the proceedings.

An interim injunction can ONLY be granted when the person applying for the injunction is able
to show 3 things (also known as the “Triple Test”) [Wander Ltd. v. Antox India (1990 SC); Best
Sellers Retail v. Aditya Birla (2012 SC)]

1. Prima Facie Case: On the reading of the Pleadings [Plaint/WS] the Application filed by the
Plaintiff/Defendant; the Court must be of the opinion that there exists a case in favour of
the Party seeking the injunction. While determining a prima facie case it is important to
remember that the Applicant only needs to establish a prima facie case and that the Court is
not to require evidence to establish the same and should not go into the merits of the
Pleadings.

As per the UK Court’s decision in American Cyanamid Co. v. Ethicon Ltd (1975), the Court
should not engage in critical examination of the evidence, call for detailed arguments or
deliberate on mature considerations, since that is something done during the Trial stage.

The Supreme Court in Martin Burn Ltd. v. R.N. Banerjee (1958) held that while
determining whether a prima facie case had been made out, the Court needs to see whether
on the basis of the evidence led, the Court can reach the conclusion in question AND it need
NOT be the only conclusion which is to be reached by the Court. It has to only consider
whether the view that is taken is one that is possible given the evidence on record.

The Court is only required to peruse the pleadings filed by the Applicant claiming the relief of
injunction. However, if the injunction is sought at a stage where certain facts are already
 established, the standard is still prima facie case, but the Court cannot disregard the already
recorded findings while granting or rejecting the Application.

If the establishment of a prima facie case is unsuccessful, then the Applicant is entitled to a
temporary injunction.

2. Irreparable Injury in case the injunction is not granted to the Applicant: When an injunction
is sought the party will say that if the injunction is not granted then there would be a loss.
The Court needs to see if it’s a loss that can be done good through monetary compensation
or not. Ex: You have a window and you have been enjoying the sunlight from there. If
someone obstructs the sunlight then would damages be sufficient to do good the harm
caused?

The Applicant needs to essentially establish that there is no other remedy which would
protect him from the harm that would be caused.

Holding in American Cyanamid Co: If damages in the measure recoverable at common law
would be adequate remedy and the defendant would be in financial position to pay them, no
interlocutory injunction should normally be granted, however strong the plaintiff's claim
appeared to be at that stage.

If, on the other hand, damages would not provide an adequate remedy for the plaintiff in the
event of his succeeding at the trial, the court should then consider whether, on the contrary
hypothesis that the defendant were to succeed at the trial in establishing his right to do that
which was sought to be enjoined, he would be adequately compensated under the plaintiff's
undertaking as to damages for the loss he would have sustained by being prevented from
doing so between the time of the application and the time of the trial.

Another Ex: A loan is taken and the family heirloom has been pledged as security. Damages
might be ascertainable in this case, the emotional and sentimental value attached to the
ancestral heirloom cannot be ascertained and therefore the party would have to prove that
if the injunction is not granted, then even at the stage of decree the award of damages would
not do good the harm already caused due to the sale of the pledged goods.

The requirement of showing that even the award of damages or unascertainable

damages are insufficient gives the injunction an equitable character.

Irreparable injury does not mean NO possibility of repairing the harm, rather it only means
that the injury must be a material one, i.e. which cannot be adequately compensated by
damages.

Mahadeso Shelke v. Pune Municipal Corporation (1995 SC): An injury will be regarded as
irreparable where there exists no specific or fixed pecuniary standards for measuring
damages.
3. Balance of Convenience in favour of the Applicant: Is the benefit which the Applicant
obtains from the order of injunction greater than the substantial mischief or detriment or
prejudice caused to the Respondent in case the injunction is granted [Dalpat Kumar v.
Prahlad Singh].

If injunction is not granted, then who would suffer what inconvenience in such a case and
whose inconvenience would be greater. Only when it is established that the inconvenience
on the Applicant would be more than the inconvenience to the Respondent, then the Court
would grant an injunction.

Diplock, J in American Cyanamid Co: “The object of the interlocutory injunction is to

protect the plaintiff against injury by violation of his right for which he could not be
adequately compensated in damages recoverable in the action if the uncertainty were
resolved in his favour at the trial.

But the plaintiff's need for such protection must be weighed against the corresponding need
of the defendant to be protected against injury resulting from his having been prevented
from exercising his own legal rights for which he could not be adequately compensated
under the plaintiff's undertaking in damages if the uncertainty were resolved in the
defendant's favour at the trial.

The court must weigh one need against another and determine where 'the balance of
convenience' lies.

The Court will see what is the inconvenience of the applicant if Injunction is NOT granted;
what is the inconvenience of the Respondent if the Injunction is granted – the Court will
compare the two and will grant the injunction if the inconvenience to the former is greater
than to the latter.”

As per Lord Diplock, there would be special circumstances which need to be paid heed to in
every case while deciding on the grant of an injunction to either of the parties.

Some reasons to refuse an injunction can be:

- The operation of doctrine of laches [The Doctrine of Laches emanates from the principle
that the Courts will not help people who sleep over their rights and helps only those who
are aware and vigilant about their rights. A party is said to be guilty of laches when they
come to the Court to assert their rights after a considerable delay in that respect]
- Acquiescence,
- Suppression of material facts,
- Monetary compensation is adequate relief,
- Applicant has not come with clean hands: As held by the Supreme Court in Gujarat
Bottling Co. v. Coca Cola Co, the party invoking the equitable jurisdiction of the Court
needs to show that they themselves were not at fault and the things being complained of
are not a result of their own actions [inequitable or unfair conduct should not have been
 exhibited]. This will apply in cases of seeking injunctive relief as well as applications to
vacate interim reliefs/injunctions.

Grant of Injunctions in Bank Guarantees – Itek Corporation v. First National Bank of Boston
[beautiful example of how Court should deduce from the facts];

The nature of irretrievable injustice and injury was recognised and was laid down to be as the
one held by the United States District Court, Massachusetts in Itek Corporation v. The First National
Bank of Boston

Itek dealt with a situation where a corporation in the United States of America had entered into a
contract with a company in the Republic of Iran and a bank guarantee had been given on behalf
of the American corporation. Thereafter, hostilities broke out between USA and Iran, with
advisories against US citizens traveling to Iran. The Court in Itek stated that a peculiar situation
was created where if the bank guarantee was allowed to be invoked, and thereafter the American
corporation was successful in obtaining a decree against the Iranian entity, such a decree could
not have been enforced in Iran due to the conflict. The Court identified that such a situation of
impossibility of enforcing a decree would amount to special equities existing in favour of the
American corporation, and thereby restrained any invocation of the bank guarantee.

Notice to opposite Party under Rule 3

Unless the purpose of the injunction will be obfuscated by the delay in granting the same, the
Court needs to give direct notice of the Application to the opposite party. As per Shiv Kumar v.
MCD, requirement of recording reasons is a mandatory one. Non-compliance with Rule 3
vitiates the order since an ex-parte injunction has far-reaching effects.

The Proviso requires the Court to record reasons for granting an ex-parte injunction and require
the Applicant to: (1) Send copy of affidavit filed in support of the Application, (2) copy of the
Plaint, (3) copies of the documents on which the Applicant relies, (4) and file an Affidavit on the
day following the posting of such documents that such documents have been delivered/sent.

As per Rule 3A, in cases of an ex-parte injunction, the Court shall make every endeavour to dispose
of the application within 30 days from the date of the grant of injunction.

Factors to be considered while granting ex-parte injunctions [Morgan Stanley Mutual Fund v.
Kartick Das (1994 SC)]
- possibility of irreparable injury to plaintiff
- refusal causes greater injury than granting it
- take notice of the time at which plaintiff became aware of the act complained of so as to
avoid improper orders against an absent party.
- examine whether there was acquiescence on part of plaintiff
- good faith of plaintiff
- Triple Test satisfaction considered
In emergency situations, even ad-interim injunctions can be granted for a limited period.

Breach of Injunction: As per Rule 2A, Court on disobedience with any injunction or order
made under Rules 1 and 2, may order the property of the person guilty of such disobedience or
breach to be attached, and may also order such person to be detained in the civil prison for a
term not exceeding three months, unless in the meantime the Court directs his release.

Rule 2A(2): No attachment made under this rule shall remain in force for more than one
year, at the end of which time, if the disobedience or breach continues, the property attached
may be sold and out of the proceeds, the Court may award such compensation as it thinks
fit to the injured party and shall pay the balance, if any, to the party entitled thereto.]

RECEIVER [ORDER XL]

It is a person who is appointed by the court to manage the affairs of a certain property which is
in dispute when the court feels that such an appointment is fit and convenient. The idea of
appointing a receiver is to preserve the property during the pendency of the suit and safeguard
the interests of parties to the suit.

The Court appoints such a person to collect, receive, the rents, issues, profits of land or personal
estate during the pendency of the suit when the Court deems it reasonable that neither of the
parties should collect or receive such amounts.

It is one of the harshest orders passed since a person who does have possession of the property
will not be allowed to use or maintain the same. It should be exercised only in extreme cases
where justice warrants the use of such powers i.e., to prevent manifest wrong or injury. Simply
because the appointment of a receiver will do no harm is no ground to appoint one.

It is important to look at the conduct of the party asking for the appointment of the receiver i.e,
he must come with clean hands – must not have disentitled himself by laches, delay, or
acquiescence.

Appointment of Receivers[Rule 1(1)]: When it is just and convenient the Court can order:
(a) Appointment of receiver of any property; before or after the decree.
(b) Remove a person from the possession or custody of the property
(c) Confer custody or possession of such property to receiver appointed
(d) Confer powers on the receiver to the extent of realisation, management, protection,
preservation, and improvement of property, collection of rents or profits, and such
powers as the Court deems fit.

Courts in England and India have wide powers to both appoint or remove a receiver. As laid
down by the Supreme Court in K.T. Thomas v. Indian Bank (1984), the court has also an
inherent power to remove the receiver appointed by it, when he does not comply with the orders
of the court or abuses his powers or authority.
Usually the receiver is not appointed by the Court unless the Plaintiff is able to prima facie
establish that he has an excellent chance of succeeding in the suit. Even the Defendant may
apply for the appointment of a receiver if it is “just and convenient”. Usually, third parties cannot
apply for a receiver to be appointed, however if they are interested in realisation, management,
protection, preservation, or improvement of property.

As per Mahendra H Patel v. Ram Narayan, the Supreme Court has ruled that the Court has no
suo motu power to appoint a receiver.

Who can be a Receiver: An impartial, disinterested, and independent party is usually appointed as
a receiver. In exceptional circumstances, a party to the suit can also be appointed as a receiver as
per Indira Transport v. Rattan Lal (Delhi HC 1998).

Time Limit: The Code does not prescribe any time limit or duration for receivership. It may,
however, be stated that where a receiver is appointed for a limited period, his appointment
comes to an end on expiration of that period. If the appointment is until judgment or decree, it is
brought to an end by judgment or decree.

Receiver can exercise lien over the property of the parties if payments, allowances, or any money
pending are not made to him.

If a receiver is appointed and he has to maintain the property then any of the costs and liabilities
that arise from him being sued, then they have to be indemnified by the person on whose behalf
the receiver has been appointed or who claims to be the owner of the property.

Order XL [Rule 3(a)-Rule 3(c)]: Receiver has to furnish security equivalent to the value of the
property. He needs to pay the dues as the Court directs. As per Balaji v. Ramchandra [Bombay
HC 1985] the receiver is bound to discharge his duties personally and cannot delegate or assign
any of his rights or duties entrusted to him by the Court.

Order XL Rule 4: If he does not perform his tasks duly or does not follow the mandates of the
Court, then the Court can attach the receiver’s property and may sell such property to make
good any amount due from him and pay back the balance to the receiver.

A receiver is bound to exercise the same diligence in keeping down expenses and in caring for
the estate in his possession as a prudent man would observe in connection with his own
property under similar circumstances.

Withdrawal of Suits[Order XXIII]

Withdrawal or compromises are not interim orders since they operate as finality i.e., action has
come to an end. If these orders are passed they signify the end of the suit.
 Withdrawal [Order XXIII Rule 1]

Under Rule 1, the Plaintiff does not need the leave of the Court and can abandon his suit or any
part of the claim against any and all of his defendant(s).

The Court cannot stop the withdrawal of the Suit by the Plaintiff since the Court cannot impose
a remedy which the plaintiff does not want. The idea of dominus litus will come to the fore since
the Plaintiff decides when to file the suit and when to withdraw. Thus, at any point of time, the
Plaintiff can withdraw the suit with/without the leave of the Court. Even if the Court does not
allow it, the Plaintiff can simply abandon the claim which would result in the dismissal of the Suit
by the Court thereby having the same effect as a withdrawal.

As per Order XXIII Rule 1(4), in unqualified withdrawals, the Plaintiff is not permitted to file a
fresh suit on the same subject matter. Furthermore, the Plaintiff is also liable to Costs which the
Court may award to the Defendant.

Qualified Withdrawal [Order XIII Rule 1(3)]– Certain requirements which are to be fulfilled
before you withdraw the suit. Those requirements are for the Court to consider, whether fit or
not fit for withdrawal. Under Rule 3(a), there can be formal defects or sufficient grounds [under
Rule 3(b)] to allow for the Plaintiff to withdraw his suit with the leave of the Court.

When a particular party is able to tell the Court that certain conditions have arisen or are
fulfilled, the Court can allow for withdrawal of the Suit. For example: Formal Defect in a suit –
Defect wrt to the procedure or forum with respect to the Court irrespective of the merits of the
case.

When a suit is filed against the Government, there is a requirement of notice and the party or
government can always object to it. A Plaintiff can also ask for withdrawal if he realises that the
causes of action could not have been joined.

Some more examples of formal defects: Court fee payment, stamp duty, misjoinder, absence of
territorial jurisdiction, failure to disclose cause of action, improper valuation of the suit, defect in
prayer clause, etc.

But a defect affecting the merits of the case, or a defect which goes to the root of the plaintiff's
case cannot be said to be a formal defect; e.g. non-joinder of a necessary party, omission to
substitute heirs, omission to include all the causes of action in the plaint, non-registration of a
partnership firm, bar of limitation, deliberate undervaluation of the subject-matter of the suit

Sufficient Cause: Wide and liberal meaning should be given to the expression "sufficient
grounds" by exercising power in the interest of justice [ex debito justitiae].

If a suit is withdrawn under a formal defect or a sufficient cause, the Party is permitted to file
a fresh suit with regard to that subject matter within the limitation period operating from the
time the cause of action has arisen [Rule 1(3)(b) and Rule 2]
Suits involving minors cannot be withdrawn without the leave of the Court [Proviso to Order 23
Rule 1, 1(2)] . Court needs to see if it’s in the best interest of the minor to withdraw the suit
since the minor is not the best judge of his interests. Even when the next friend or the guardian
are withdrawing the suit, the Court still has to delve into the question of whether the interests
considered by them are good enough, if not, then what would be the best interest for the child.
Representative suits as well cannot be withdrawn without the leave of the Court [Order 23 Rule
3B].

It is in the discretion of the court to grant such permission and it can be granted by the court
either on an application of the plaintiff or even suo motu.

Where there are two or more plaintiffs in a suit, the suit or part of the claim cannot be
abandoned or withdrawn without the consent of all the plaintiffs. If the case is such that if there
are several plaintiffs, but the case can go on with or without them, then withdrawal can be
allowed. The effect of the withdrawal on the other plaintiffs due to the withdrawing Plaintiff
must be gauged by the Court. One of such plaintiffs, however, may abandon or withdraw from
the suit to the extent of his own interest in it.

APPEALS
The appellant has a right to withdraw his appeal unconditionally and if he makes such an
application, the court must grant it, subject to costs, and has no power to say that it will not
permit the withdrawal and will go on with the hearing of the appeal.

If any finding recorded by the trial court in favour of the defendant(s) is nullified or gets
obliterated by withdrawal of the suit, no such permission can be granted.

NOTE: An order granting or refusing permission to withdraw the suit with permission to file a
fresh suit on the same cause of action is neither a "decree" nor an appealable order. Hence, no
appeal lies against such an order.
 Death, Marriage, or Insolvency of Parties [Order 22]

As per Rule 1, the death of a plaintiff or a defendant shall not cause a suit to abate if the right to
sue survives. If the sole plaintiff or defendant dies then the suit will abate.

The expression "right to sue" has not been defined in the Code, but it may be interpreted to
mean "right to seek relief". In other words, "right to sue" survives if the cause of action survives
or continues. But in cases of personal actions, i.e. actions where the relief sought is personal to
the deceased or the rights intimately connected with the individuality of the deceased, the right to
sue will not survive to or against his representatives.

M. Veerappa v. Evelyn Sequeira: If it's a claim of torts then it would abate whereas for a claim of
partly contract and tort the latter would abate while the former would subsist. Whereas for a
claim founded entirely on contact then the suit would proceed to trial in its entirety.

As per Rules 2 and 3, where one of the several plaintiffs/defendants dies and the right to sue
survives to the surviving plaintiff or plaintiffs, the court will make an entry to that effect and
proceed with the suit by the surviving plaintiff or plaintiffs.

In cases of death of one of the defendants or the sole defendant, the court may, if it thinks fit,
exempt the plaintiff from substituting the legal representative of a non-contesting or proforma
defendant and pronounce judgment notwithstanding the death of such defendant in accordance
with Rule 4(4).

However, death of a party post the conclusion of hearings and before the pronouncement of the
judgement does not abate the suit as per Rule 6. The same principle will apply in case of death
of the plaintiff after passing of preliminary decree and before final decree [Jitendra Ballav .
Dhirendranath].

Delay in Filing Application for substitution by Plaintiff: Where the plaintiff is ignorant of
the death of the defendant and for that reason is unable to make an application for substitution
of the legal representative of the deceased defendant within the period of limitation, and the suit
stands abated, he may make an application for setting aside such abatement within the period of
limitation (90 days), stating that due to ignorance of the death of the defendant he could not
make an application within time.

The court shall consider the application, having due regard to the fact of such circumstance
[Rule 4(5)].

Effect of Abatement

As per Rule 9(1), where a suit abates or is dismissed under this Order, no fresh suit shall be
brought on the same cause of action. The only remedy available to the plaintiff or the person
claiming to be the legal representative is to get the abatement set aside.
Hira Lal v. Kali Nath: No suit can be filed against a dead person. Such a suit is non est and has
no legal effect. Likewise, a decree passed against a dead man is a nullity.

But where a suit is filed against a dead person by the plaintiff without knowledge of such death,
on the application by the plaintiff, the court may permit the legal representatives of the
defendant to be brought on record. On such impleadment, the suit shall be deemed to have been
instituted on the day the plaint was presented.

Marriage of a Party[Rule 7]

The marriage of a female plaintiff or defendant shall not cause the suit to abate. Where the
decree is passed against a female defendant, it may be executed against her alone [Rule 7(1)].

A decree in favour of or against a wife, where the husband is legally entitled to the subject-matter
of the decree or is liable for the debt of his wife may, with the permission of the court, be
executed by or against him [Rule 7(2)].

Insolvency of Party [Rule 8]

The insolvency of a plaintiff shall not cause the suit to abate and can be continued by his
Assignee or Receiver for the benefit of his creditors [Rule 8(1)].

If such assignee or receiver declines to continue the suit or (unless for any special reason the
Court otherwise directs) to give security for the costs thereof within such time as the Court may
direct, the court may, on the application of the defendant, dismiss the suit on the ground of the
plaintiff's insolvency [Rule 8(2)].

The court may also award the defendant costs for defending the suit, to be paid as a debt against
the plaintiff's estate

Rule 8 does not apply where the defendant becomes an insolvent. In such cases, the court may
stay the suit or proceeding pending against the defendant who has been adjudged an insolvent.
 COMPROMISE
Order 23 Rule 3: Where it is proved to the satisfaction of the Court that a suit has been adjusted
wholly or in part by any lawful agreement or compromise [in writing and signed by the parties]
or where the defendant satisfied the plaintiff in respect to the whole or any part of the
subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to
be recorded, and shall pass a decree in accordance therewith [so far as it relates to the parties to
the suit, whether or not the subject-matter of the agreement, compromise or satisfaction is the
same as the subject-matter of the suit.

After the institution of the suit, it is open to the parties to compromise, adjust or settle it by an
agreement or compromise. A compromise, adjustment or satisfaction may be recorded by the
court where the proceedings are pending. In case of suit, it can be recorded by the trial court.

It is the duty of the court to satisfy itself with regard to the terms of the agreement. The court
must be satisfied that the agreement is lawful and it can pass a decree in accordance with it. The
court should also consider whether such a decree can be enforced against all the parties to the
compromise. A court passing a compromise decree performs a judicial act and not a ministerial
act. Therefore, the court must satisfy itself by taking evidence or on affidavits or otherwise that
the agreement is lawful.

Any party can dispute compromise by saying it was not justified. But, mere allegations that one
party received more than another is not valid; even in a just compromise, this may occur.

In a compromise, res judicata does not apply as it is not a finally heard and decided decree. As
per Horil v. Keshav, on the ground of estoppel, a fresh suit cannot come up once a court has
accepted a compromise suit, but an Appeal against a consent decree does lie as per R . Rajana v.
SR Venkataswamy.

In a partnership agreement, it is stated that the partnership will be dissolved if all consent to it. A
suit is filed by a partner for dissolution of the firm against the other partner, under a ground laid
down in Sec 44 of the Partnership Act (court can dissolve). In this situation, when a partner files
a suit against all other partners for the dissolution of the firm, say outside the suit, the partners
agree to dissolve the firm, they enter into a deed/ try to dissolve under partnership law - this is
allowed. Even during the pendency of the suit in court, the firm may be dissolved by consensus.

However, say a wife seeks divorce on grounds of cruelty and desertion. The parties herein
cannot compromise outside the court. This is because under the HMA, a marriage can only be
dissolved by a court.

COMPROMISE DECREE AND RES JUDICATA

A compromise decree is not a decision of the court. It is acceptance by the court of something
to which the parties had agreed. A compromise decree merely sets the seal of the court on the
agreement of the parties. The court does not decide anything. Nor can it be said that a decision
of the court is implicit in it. Hence, a compromise decree cannot operate as res judicata.
APPEALS
As per Section 96(3) of the CPC- NO appeal lies against a decree passed by the Court with the
consent of the parties nor a suit can be instituted to set aside a compromise decree on the
ground that such compromise is not lawful [Order XXIII Rule 3A].

A party challenging the compromise can file an appeal under Section 96(1) of the Code and
Section 96(3) shall not bar such an appeal. Moreover, as per Ruby Sales and Services v. State of
Maharashtra, such a decree can be challenged by filing a suit on the ground of fraud, undue
influence or coercion.

TRIAL
Post the frame of issues, there is a weighing of evidence, oral submissions, and the Court
determines the rights and obligations of the Parties to the dispute.

Adjudication involves the following:

1. IDENTIFICATION OF CREDIBLE FACTS – Evidences can be of two kinds:
(a) ORAL: The party that requires the presence of witnesses has to submit a list of all the
witnesses whom they propose to call to give evidence or produce documents [Order
XVI Rule 1(1)] along with the reason for which the witness is proposed to be
summoned [Order XVI Rule 1(2)].

There is no mandate on the Court to summon every witness that are mentioned in the
list produced by the party. As per the Evidence Act, evidence can only be taken with
respect to those facts which are deemed to be relevant as under Sections 6-55 of the IEA,
1872. Idea is of evidence will come in at the evidence stage.

After the submission of the list, the party can approach the Court or any officer of the
Court, within 5 days of presenting the list, to get the summons issued for the witnesses
to be called to the Court and give their testimony or produce documents [Order VXI
Rule 1(4)].

As per Order XVI Rule 5, the summons issued to the witness, should mention the time,
place, and purpose for requiring the attendance of the said witness. If the witness is
required for producing a document, then the particular document must be reasonably
described.

If the witness is required for producing a document and he causes the document to be
produced instead of appearing before the Court himself, then he would be deemed to
have complied with the summons as per Order XVI Rule 6.

Service of Summons [Rule 8]: The summons issued under Rule 1(2), shall be served as
nearly in the same way as would be served to the Defendant under Order V and rules
regarding proof of service shall apply. Furthermore, reasonable time must be afforded to
the person whose attendance is sought for preparation and travelling time as prescribed
under Rule 9.
Expenses for calling Witnesses: As per Order XVI Rule 2(1), the party requiring the
attendance of persons must pay into the Court an amount considered to be sufficient to
defray the travelling or other such expenses for one day’s attendance.

If the sum paid into the Court appears to be insufficient then there are two results under
Order XVI Rule 4(1):
(1) Order the party to further pay the sum to cover such expenses or reasonable
remuneration
(2) In case of default of such payment, the Court can order the attachment and sale of
the movable property of the party or it can discharge the summoned person without
requiring him to give evidence or can order both.

If the witness is required for more than a day, then as per Rule 4(2), the party may be
ordered from time to time to pay into the Court a sum considered sufficient to defray the
expenses of his detention.

If the name of a particular witness is not included in the list, but there is a sufficient
reason (genuine) to justify this omission, then the Court can record reasons to permit the
same without requiring a summons from the end of the Court [Order XVI Rule 1(3)
and Rule 1A]. Court has no jurisdiction to decline to examine such a witness as held by
the Supreme Court in Vidyadhar v. Manikrao.

Sometimes, if it is crucial for the presence of the testimony of a witness or the

production of some document but their name is not included in the list under Rule 1(1),
then the Court can on its own motion issue the summons to require the attendance of
such a person [Order XVI Rule 14].

Residential Limits for calling Witnesses:

As per Rule 19, no one shall be ordered to attend in person to give evidence unless:
(a) They reside within the local limits of the Court’s jurisdiction
(b) without such limits but at a place less than [one hundred] or (where there is railway
or steamer communication or other established public conveyance for five-sixths of
the distance between the place where he resides and the place where the Court is
situate) less than [five hundred kilometres] distance from the court-house

But what would happen if the Witness fails to comply with the summons – then
rules 10-12 would come into play [attachment, sale, arrest, fines]. Rule 10 is a means of
enforcing the coercive machinery of the Court to require the attendance of a witness or
the production of a document before the court. This is done to ensure that the person
who is summoned to give evidence or produce a document does not contravene his duty
to effect the same as provided under Rule 15.

RULE 10(2): Where the Court sees reason to believe that such evidence or production is
material, and that such person has, without lawful excuse, failed to attend or to produce
 the document in compliance with such summons or has intentionally avoided service, it
MAY ISSUE A PROCLAMATION requiring him to attend to give evidence or to produce the
document at a time and place to be named therein; and a copy of such proclamation shall
be affixed on the outer door or other conspicuous part of the house in which he
ordinarily resides.

RULE 10(3): In lieu of or at the time of issuing such proclamation, or at any time
afterwards, the Court may, in its discretion, ISSUE A WARRANT, either with or without
bail, for the ARREST OF SUCH PERSON, and may make an order for THE ATTACHMENT OF
HIS PROPERTY to such amount as it thinks fit, not exceeding the amount of the costs of
attachment and of any fine which may be imposed under rule 12

RECOURSE POST ATTACHMENT OF THE PROPERTY:

RULE 11: If the witness appears and such person satisfies the Court that –
(a) he did not, without lawful excuse, fail to comply with the summons or
intentionally avoid service, and
(b) where he has failed to attend at the time and place named in a proclamation
issued under the last preceding rule, that he had no notice of such proclamation
in time to attend
then the Court shall direct that the property be released from attachment, and shall make
such order as to the costs of the attachment as it thinks fit.

RULE 12: Procedure when witness fails to appear/appears and fails to satisfy the Court –
(1) Court may impose a fine not exceeding Rs 500/- having regard to the
circumstances of the case and his condition in life and may order his property or any
part thereof to be attached and sold or if the property is already attached under Rule
10(3), then order it to be sold to satisfy the costs of such attachment together with
the amount of the said fine.

If there is a requirement of experts in terms of giving evidence or performing tasks

related to their expert character, then the costs for their remuneration would have to
borne by the Party requiring their attendance [Order XVI Rule 2(2)].

(b) Documentary: The provisions relating to issue of summons to give evidence will apply to
summons to produce documents or other material objects.

ADJOURNMENTS [ORDER XVII]

Once the hearing of the suit begins, it will continue till the final disposal of the suit. When we
look at the stage of evidence hearing, it will have to continue from day to day and the grant of
adjournments shall be made only for unavoidable reasons.

As per Order XVII Rule 1(1), Court may grant adjournment for reasons recorded in writing
however the Proviso mentions that an adjournment cannot be granted to a party for more than 3
instances. However, as per Salem Advocate Bar Assn v. Union of India, in extreme or
exceptional circumstances, this rule would not apply.

As per CIT v. Express Newspapers Ltd, the power to grant adjournment is not guided by
defined or concrete rules, rather it is a matter left to the discretion of the Court upon
consideration of the facts and circumstances of the case. Furthermore, according to Maharaja v.
Harihar, the Court is supposed to determine whether the grounds for which adjournment is
being claimed are (1) factually true and (2) sufficient to grant adjournment.

Some of the common reasons for granting an adjournment are: time to prepare a case, last
moment withdrawal of pleader, non-service of summons, sickness of a party, etc.

Common grounds for refusal of an Adjournment: Unreasonable conduct of a party/pleader,

engagement of the pleader before another Court, refusal to examine/cross examine a witness,
old case requiring disposal, orders from superior courts to dispose of the matter quickly,

The fact that a party has applied for adjournment of the hearing of a case in the past and the
adjournment was granted on his application, could be no ground for refusing an
adjournment if it is again sought on a ground which could reasonably be said to have prevented
or disabled that party from producing his evidence or doing something else which is necessary to
be done for the hearing of the case on that particular day.

The court should not be too technical in the matter of granting an adjournment and it should
not refuse to grant it if sufficient cause is shown.

The Court can declare an adjournment to be the last adjournment to be granted.

Costs of Adjournment: While granting an adjournment, the court shall direct the party seeking
an adjournment to pay costs or higher costs to the opposite party. Such an amount, however,
should be reasonable and commensurate with the costs incurred by the other side. No costs
should be imposed by way of penalty or punishment.

Failure to appear on the fixed date: As per Rule 2, where, on any day to which the hearing of
the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose
of the suit in one of the modes directed in that behalf by Order IX or make such other order as
it thinks fit.

The Explanation provides that where the evidence or a substantial portion of the evidence of any
party has already been recorded and such party fails to appear on any day to which the hearing of
the suit is adjourned, the Court may, in its discretion proceed with the case as if such party
were present.

2. IDENTIFICATION OF APPLICABLE LAW – One of the most important ideas in Trial procedure.
Ex: If there is a pleading for fraud and you claim the relief of damages for the same. If you
are filing a case relating to a contractual dispute claiming fraud, then you would have to claim
 the relief of receding from the contract and seek restitution. Whereas the awarding of
damages are solely with respect to contractual breaches.

Read the case of Doyle v. Olby Iron Mongers – wrong identification of Substantive Law in
the dispute. The Court in the Appellate Stage corrected the stance of the advocate and it
went ahead and identified the correct law that is applicable to the dispute. Court went
beyond the arguments made by the Parties and gave a relief not asked for by the party since it
determined that it would cause great harm to the party if the correct law is not identified.

3. APPLICATION OF LAW TO FACTS

4. RESULT OF SUCH APPLICATION - Decree

JUDGMENT AND DECREES [ORDER XX]

Stage after hearing of the parties is the stage of judgement. Judgement aims at pronouncing
decision of the Court by giving reasoning for the same. It is written and pronounced in the Court
with an intention of giving the parties a reasoned decision on the conclusion reached by the
Court.

A decree is drawn up by the Court with the aforementioned considerations + execution

concerns. It tells you complete terms on the execution of the decree.

Definition of Decree under Section 2(2): means the formal expression of an adjudication which,
so far as regards the Court expressing it, conclusively determines the rights of the parties with
regard to all or any of the matters in controversy in the suit and may be either preliminary or
final. It shall be deemed to include the rejection of a plaint and the determination of any
question within section 144, but shall not include— (a) any adjudication from which an appeal
lies as an appeal from an order, or (b) any order of dismissal for default.

Requirements in a Decree:
- Formal Expression of an Adjudication – expressed in a formal fashion as per the Code
[Annexure D of Schedule 1].
- Conclusively determines the rights of parties

For something to be termed as a decree, it needs to relate back to the pleadings of the parties
submitted through the plaint and WS.

Preliminary Decree: Before giving a final outcome, the court will reserve its decision pending
further enquiries regarding certain issued.

Decree
Section 2(2) of the Civil Procedure Code: means the formal expression of an adjudication which,
so far as regards the Court expressing it, conclusively determines the rights of the parties with
regard to all or any of the matters in controversy in the suit and may be either preliminary or
 final. It shall be deemed to include the rejection of a plaint and the determination of any
question within 2 *** sections 144, but shall not include—
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default.

Explanation—A decree is preliminary when further proceedings have to be taken before the suit
can be completely disposed of. It is final when such adjudication completely disposes of the suit.
It may be partly preliminary and partly final.

Adjudication is the determination of rights and obligations of the party. Does the rejection of a
Plaint on the grounds that it does not disclose a cause of action also a decree. As per Section
2(2), such a decision is deemed to be a decree.

As per Adinarayan v. Narasimha, the Madras High Court laid down that even if the judgement
is titled as an “Order”, if it fulfils the requirements under Section 2(2) then it would amount to a
Decree and thereby an appeal would lie against the same.

As held by the Supreme Court in Dewan Brothers v. Central Bank of India (1976) there are 3
essentials for any holding to be called a Decree under Section 2(2):
a. There should be an Adjudication
a. The adjudication should determine the rights of the parties involved in the controversy
b. The adjudication should be in a suit and formal and must be conclusive so far as the
Court is concerned.

When we compare a Decree with a Judgement [defined under Section 2(9) of the Code], the
latter is a statement made by the Judge with respect to the grounds and reasons for the Order.
Whereas an Order is just an expression of the conclusions that are reached in the judgement.

As per Order XX Rule 4(2), judgments of other Courts shall contain a concise statement of the
case, the points for determination, the decision thereon, and the reasons for such decision.

Digressing Note: SBM v. MSPL Ltd (2010): An order of the High Court admitting an Appeal
would not be considered an interlocutory or even an interim order. It does not decide upon any
of the rights of the parties, rather it just decides to entertain the appeal.
● The aspect of “Formal Expression” - This means that all requirements of the form must be
complied with in the issuance of the decree.

Sakharam v. Sadashiv (1913 - Bombay HC) - When the formal requirements are complied with,
it would be said to be a Decree and consequently only then would there be a right to prefer an
appeal against it.

But, as per Parasuram v. Heera Bai (1957 BHC) the right to prefer an appeal has been held to
be unaffected by the failure to draw up a decree since it is only a formal requirement.
● “Conclusively Determines” -
Srijib v. Dandi Swami Jagganath Asram (1941 Cal HC) - A Decree must conclusively
determine the rights of the parties with respect to any and all matters related to the controversy
in the suit. In this case, the Court had held that a decision rendered on the issue of limitation
would NOT amount to the formation of a decree since it does not determine any of the rights of
the parties in relation to the matter of the dispute.

● “Rights of the Parties with respect to any and all matters in the controversy”
MS University v. Kumara Gurubara Swamigal Arts College (1997 Madras HC) - Any
adjudication which conclusively determines the rights of the parties with regard to any of the
matters in controversy in the suit, is a decree within the meaning of s 2(2) of the Code of Civil
Procedure and is binding on the parties.

For example: In Gopupeddireddi v. Gopit Tinipathy Reddy (1991 AP) - the question was
whether an order refusing to record a compromise could be considered as a Decree under the
Code. The Court was of the view that such an order does not determine the rights of the parties
with respect to the matters in the controversy and therefore would not fall within the ambit of
Section 2(2) and thereby no appeal would lie against the order under Section 96 of the CPC.

● “In the Suit”

Minakshi v. Subramanaya (1888 - Madras HC) - Every suit commences with the filing of a
plaint, and without a suit there is no decree that can be drawn up.

● “Preliminary and Final Decrees”

A preliminary decree is one which declares the rights and liabilities of the parties leaving the
actual result to be worked out in further proceedings. Post this, there are further inquiries on the
preliminary decree and the court would render finality on the basis of the same. In Balwant
Lokhande v. Chandrakmt Shankar Lokhande, (1995) it was held that the final decree carries
into fulfillment the preliminary decree.

“Partly Preliminary and Partly Final” – Court decides on all rights and obligation pertaining to a
particular part of the suit.

JUDGEMENT [Section 2(9)]: means the statement given by the Judge of the grounds of a decree
or order. Also, a judgment may be said to be "the final decision of the court intimated to the
parties and to the world at large by formal 'pronouncement' or 'delivery' in open court.

If there is a discrepancy between a Judgement and a Decree, the former prevails.

ORDER [SECTION 2(14)]: means the formal expression of any decision of a Civil Court which is
not a decree.

Formal expression and decision are the same. But anything that is not conclusively determining
/adjudicating the rights and obligations emanating from a Plaint/WS is an order. Ex:
Interlocutory Orders – commissions, appointment of receivers, costs, etc. Order can emanate
from the Plaint/WS or even from an Application.

Decree is ALWAYS conclusive whereas Orders can/are not conclusive. In orders there’s nothing
called partly preliminary or partly final.

Decree Holder [Section 2(3)]: means any person in whose favour a decree has been passed or
an order capable of execution has been made
.
Judgement Debtor: means any person against whom a decree has been passed or an order
capable of execution has been made;

MESNE PROFITS [SECTION 2(12)]: “mesne profits” of property means those profits which the
person in wrongful possession of such property actually received or might with ordinary
diligence have received therefrom, together with interest on such profits, but shall not include
profits due to improvements made by the person in wrongful possession.

Ex: When you are in adverse possession of the land and accrue some profits, then in a suit
regarding the same not only would the possession of the land be given back but also the profits
that accrued to the person during wrongful possession. But this would NOT include profits that
accrued to the person in terms of the improvements made to the property during his wrongful
possession.

Decree for mesne profits can be passed against a trespasser and even a mortgager on a land and
the land being in his possession and the mortgage has been foreclosed. Then the mortgagee can
ask for the mesne profits to be paid.

Mense can be claimed against any person who has an inferior title in relation the person claiming
the same.

The lawful charges made towards the property during the wrongful possession would be
deducted.

ORDER XX
Rule 1: Judgment when pronounced:
(1) The Court, after the case has been heard, shall pronounce judgment in an open Court, either
at once, or as soon thereafter as may be practicable and when the judgment is to be
pronounced on some future day, the Court shall fix a day for that purpose, of which due
notice shall be given to the parties or their pleaders:

Provided that where the judgment is not pronounced at once, every endeavour shall be
made by the Court to pronounce the judgment within thirty days from the date on
which the hearing of the case was concluded but, where it is not practicable so to do on the
ground of the exceptional and extraordinary circumstances of the case, the Court shall fix a
 future day for the pronouncement of the judgment, and such day shall not ordinarily be a
day beyond sixty days from the date on which the hearing of the case was concluded,
and due notice of the day so fixed shall be given to the parties or their pleaders.]

The Supreme Court in R.C. Sharma v. Union of India (1976), held that there should not be an
excessive delay between the conclusion of hearing the parties and the pronouncement of the
judgement unless it can be explained by exceptional or extraordinary circumstances. This is done
to avoid shaking the confidence of the litigants in the judicial mechanism.

As per Order XX Rule 3: Judgement must be signed and dated by the Judge in open Court at
the time of pronouncing it and once it is signed then it must not be altered or anything to be
added unless there are accidental slips or omissions [Section 152] or the judgement is reviewed
[Section 114].
If the party feels that the Judge has erred in writing down some facts or there are some issues
with the typing, then they can bring it before the Judge and he can address the issues. But once it
is pronounced, it is conclusive. Small irregularities would not affect the legitimacy of the
pronouncement as long as the substantive aspects of the judgement as there.

Since the judgement is conclusive of the facts ascertained by the Court, one cannot challenge the
ascertainment of facts in the pronounced judgement. If any alteration in the Judgement is
required then you need to approach the same Court for review so as to ensure that either the
statement is deleted or amended accordingly [State of MH v. Shrinivas Nayak].

The Judgement needs the facts of the case, the issues, the arguments coming from the counsels
on each side, and the decision on EACH issue framed by the Court [Rule 5] along with the
reasoning for the same. It is not necessary for the Court to read out the entire judgement, rather
it can pronounce its findings on each of the issues and the Final order is read out as provided
under Rule 1(2).

Recording of reasons in support of a judgment may or may not be considered to be one of the
principles of natural justice, but it cannot be denied that recording of reasons in support of a
decision is certainly one of the visible safeguards against possible injustice and arbitrariness and
affords protection to the person adversely affected.
However, the Court must reach the decision based on the arguments and pleadings by the parties
only. It should not decide on ANY question not brought up by the parties or which is
unnecessary [RS Nayak v. AR Antulay].

Court’s Duty in the Absence of Pleaders: It is imperative for the Court to inform the parties
as to the forum and time limit before which an Appeal against the current judgement lie in cases
where parties are NOT represented by their pleaders [Order XX Rule 5A].

PROCUREMENT OF COPY OF JUDGEMENTS: As per Rule 6B, where the judgment is pronounced,
copies of the judgment shall be made available to the parties immediately after the
pronouncement of the judgment for preferring an appeal on payment of such charges as may be
specified in the rule made by the High Court.]
Decree: As per Rule 6A, Every endeavour shall be made to ensure that the decree is drawn up
as expeditiously as possible and, in any case, within fifteen days from the date on which the
judgment is pronounced.

A decree is indispensable since an Appeal lies against this and not against a judgement. If it so
happens that a decree is not drawn up, an appeal can still be filed without filing a copy of the
decree as per Rule 6A.

Contents of a Decree under Rule 6: (1) Suit Number, (2) Names and Description of the
Parties and their registered addresses, (3) Particulars of the Claims, (4) Clearly specify the relief
granted or other determinations, (5)costs incurred in the suit and allocation of costs, and then it
must be signed by the Judge.
COSTS
TYPES OF COSTS

General Costs of Procedure [Section 35]: Object of awarding costs is to secure the expenses
incurred by the party in litigation. The point is not to profit the winning party or cause loss to
the opposite party. The costs awarded should not be of a symbolic nature, but rather they should
actually compensate the party(ies).

As per Section 35(1) of the Code, the Court shall have full power to determine by whom or out
of what property and to what extent such costs are to be paid, and to give all necessary directions
for the purposes aforesaid. Furthermore, the lack of jurisdiction on part of the court to try the
suit does not bar it from awarding costs.

As under Section 35(2), “shall follow the event” means that the winning party should be
awarded the costs and the losing party must pay the same. According to Kali Prasad v. Ram
Prasad, the winning party is entitled to costs UNLESS there are good reasons for depriving the
party of the same. Even a successful party may be deprived of costs if he is guilty of misconduct
or there are other reasons to do so [Union of Indiav. Kamal Kumar].

Costs under Explanation to Section 35(1) [Commercial Disputes] shall mean costs relating to
fees and expenses related to witnesses, legal fees and expenses incurred, any other expenses
incurred in connection with the proceedings.

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

COMPENSATORY COSTS: If a litigant is vexatious, the Court can to cause a deterrent effect award
compensatory costs [Section 35A and Manmohan Kaur v. Surya Kant].

The following conditions must exist before this section can be applied:
(i) the claim or defence must be false or vexatious;
(ii) objections must have been taken by the other party that the claim or defence was false or
vexatious to the knowledge of the party raising it; and
(iii) such claim must have been disallowed or withdrawn or abandoned in whole or in part.

As per Section 35B(2), a cost of no more than 3000 Rs can be imposed under the Section.

COSTS OF DELAY [Section 35-B]: If the proceedings are unreasonably delayed by the conduct of
one party. The first three costs are pronounced in the decree but this cost can be imposed in
between as well. It is inserted to put a check upon the delaying tactics of litigating parties. It
empowers the court to impose compensatory costs on parties who are responsible for causing
delay at any stage of the litigation.

The payment of costs has been a condition precedent for further prosecution of the suit, if the
party concerned is a plaintiff and the defence, if he is a defendant [Section 35B(1)]. The
provisions of this section are mandatory in nature and, therefore, the court should not allow
prosecution of suit or defence, as the case may be, in the event of a party failing to pay costs as
directed by the court.

EXECUTION OF A DECREE

Execution of a decree idea is that a Court ensures that a decree that has been passed and the
mandate that has been created by that particular decree is secured to the decree holder.

Order XXI creates ways in which the decree that has been passed can be executed and ensure
that the judgement debtor acts in conformity with the decree. It talks of the procedure for the
execution – such as where is it that the person needs to apply for the execution.

For a person who fulfils the mandate under the decree, Order XXI is of no relevance.

Order XXI Rule 10 [Application for Execution]: Where the holder of a decree desires to execute
it, he shall apply to the Court which passed the decree or to the officer (if any) appointed in
this behalf, or if the decree has been sent under the provisions hereinbefore contained to another
Court then to such Court or to the proper officer thereof.

Where Decrees are Appellate, then the Appellate cannot execute it, rather the Court of First
instance would need to execute it.

Where the Court of First instance ceases to have jurisdiction over the matter, then the Court
which now has the jurisdiction to entertain the suit would be the court competent to execute the
decree passed by the Court of first instance.

If there are two courts which possess the competency to try the suit, then the suit for execution
can be filed in either of these Courts.
If judgement debtor resides in the jurisdiction of another court, the subject matter lies outside
the court's jurisdiction, assets of the judgement holder are not sufficiently present in the
jurisdictional limits of the Court, in that case, the court can transfer the decree for execution to
the court in whose jurisdiction the case may be.

When the matter is being transferred for execution, the Court transferring the decree must
ensure that the other Court possesses the pecuniary jurisdiction to entertain the matter. If not,
then that Court cannot be competent to execute the decree.

Once the decree has been transferred, the transferee court has the same powers that a Court
which passed the decree would have had with respect to the execution. Once the transfer has
been made, upon execution or failure to execute, the transferee Court must inform the
transferring Court of the same.
The Court executing the decree cannot assume the powers of a Court which passed the decree
i.e., it cannot look into the merits of the case. It cannot call for fresh evidences, you cannot
summon witnesses, discovery, interim orders, commissions, etc cannot be done. The Executing
Court cannot go on a fact-finding mission at the stage of execution.

Who can apply for Execution

The Decree holder is the obvious first choice to apply for the execution of the decree. In case
they are dead, then their representatives can ask for execution. But if they are alive, then a
representative who is interested on his own behalf of on behalf of the decree holder can claim
execution of the decree.

A person who has been assigned or been transferred the decree, can also apply for the execution
of the decree in the same Court that passed the Decree [Order XXI Rule 16]. However, the
transfer of the decree must be in writing or by operation of law.

As per the First Proviso, the execution will not be done until notices are sent to the transferor and
the judgment debtor and till the objections are heard (if any).

Joint Decree Holders

As per Order XXI Rule 15, Any one of the Decree holders can get the Decree executed, unless
the decree itself imposes any condition to the contrary. He must ask for the execution of the
decree as a whole for the benefit of all the joint decree holders.

Any person who has a special interest can ask for the execution of the decree. Same is the case
for representative suits.

Against whom does an execution application lie:

Contents of an application of execution [Rule 11(2)]

- Should be in writing, signed by the parties and verified
- Must mention the suit number where the decree has been passed
- Name of the parties
- Date of decree
- Amount of decree

In case the application requires a particular property to be attached, the property should be
described in the application for execution. The interest of the judgement debtor must be defined.
[Rule 12].

If it requires arrest of a person, grounds for why the judgement debtor should be arrested or
detained - on an affidavit [Rule 11A].

Cross-Decrees [Order XXI Rule 18]

Execution by Sale

Rule 64: Power to order property attached to be sold and proceeds to be paid to person
entitled.—Any Court executing a decree may order that any property attached by it and liable to
sale, or such portion thereof as may see necessary to satisfy the decree, shall be sold, and that the
proceeds of such sale, or a sufficient portion thereof, shall be paid to the party entitled under the
decree to receive the same.

The Court to duty bound to check if there is possibility of partial sale of property to fulfill the
requirement of the decree. Court should not sell of a larger portion of the property unnecessarily.

Whenever a sale is to happen (except for shares), the sale is to happen by way of a public auction
to fetch the best value [Rule 66].

Post the order for sale of the property the Court has to issue a proclamation of sale by public
auction. Before the proclamation is made, Court is duty bound to call the parties to Court to give
them notice of such a proclamation of sale is being issued [Rule 66(2)]. The proclamation should
state the time and place of sale, then whether there is a partial sale or complete sale, revenue
assessed upon the estate, any charges on the property, the recovery amount ordered through the
sale, and finally any other information which the Court considers material for the purchaser to
know.

Manner of making the Proclamation: The order shall be proclaimed at some place on or
adjacent to such property by beat of drum or other customary mode, and a copy of the order
shall be affixed on a conspicuous part of the property and then upon, a conspicuous part of the
Court-house, and also, where the property is land paying revenue to the Government, in the
office of the Collector of the district in which the land is situate 2 [and, where the property is
land situate in a village, also in the office of the Gram Panchayat, if any, having jurisdiction over
that village.]

Any sale made without proclamation is a nullity.

Time of Sale: As per Rule 68, Save in the case of property of the kind described in the proviso
to rule 43, no sale hereunder shall, without the consent in writing of the judgment-debtor, take
place until after the expiration of at least [fifteen days] in the case of immovable property, and
of at least [seven days] in the case of movable property, calculated from the date on which the
copy of the proclamation has been affixed on the court-house of the Judge ordering the sale.

Adjournment of Sale: As per Rule 69(1), the Court can upon exercising its own discretion
adjourn the sale to a specified day and hour. And if the sale is adjourned for more than 30 days
then a fresh proclamation is to be issued.

However, if the decree amount is paid then the Court will stop the sale.

Defaulting Purchaser Answerable for Loss on Re-Sale [Rule 71]: Any deficiency of price
which may happen on a re-sale by reason of the purchaser's default, and all expenses attending
such re-sale, shall be certified to the Court by the officer or other person holding the sale, and
shall, at the instance of either the decree-holder or the judgment-debtor, be recoverable from the
defaulting purchaser under the provisions relating to the execution of a decree for the payment
of money.

Who can bid for the Property: Anyone except the decree holder can bid for the property at the
auction. But the decree holder can also bid if he has the permission of the Court as under Rule
72(1). Even the Officer entrusted with the duty to perform acts in connection to the sale of the
property cannot directly, or indirectly bid for or attempt to acquire any interest in the property as
under Rule 73.

A mortgagee is also allowed to bid for the property with the leave of the Court as per Rule 72A,
and this is largely an administrative role of the Court rather than a judicial role. There is no issue
if the permission given to decree holder or the mortgagee is not “well-reasoned” and all, rather
all that is required is that the Court needs to take note of the circumstances and act accordingly.

SALE OF AGRICULTURAL PRODUCE: If what is being sold is agricultural produce, it should be sold
at a place where the crops are
● Either currently growing
● Or where they have been harvested or whether they are lying (if they have been
harvested)
● Or if another place would fetch better value in the court's opinion

No sale for growing crops may be made until they are harvested. But, if there is a crop of such
nature that it cannot be stored, then growing crops may be sold and the purchaser may be given
the right to harvest those crops from the land where they were growing.

SALE OF SHARES: No requirement for the sale to be by way of auction. The Court can instruct
any broker to sell the shares in the market for the best price.
SALE OF IMMOVABLE PROPERTY

Court can always postpone the sale if the judgement debtor applies to the Court by saying that if
there is a private alienation of property [sale, lease, mortgage] then he would be able to raise the
amount due under the decree as under Rule 83.

Application for sale to be set aside: Within 60 days of order of sale, an application for setting
aside the sale must be filed as provided under Rule 92(2). If no application comes even after 60
days, then the Court will confirm the sale.

Until and unless the sale is confirmed by the Court it is not absolute in respect of immovable
property.

Setting aside the sale based on irregularity or fraud [Rule 90]: Substantial injury [under Rule
90(2)] needs to be shown for the Court to set aside the sale. Either the auction purchaser or the
decree holder can apply for setting aside.

Setting aside based on judgement debtor having no saleable interest [Rule 91] : The
purchaser can apply for setting aside the sale, if the judgement debtor did not have a saleable
interest. The purchase money will be refunded on the basis of the same.

If the Sale is not set aside then the Court will confirm the sale. Once the sale is confirmed the
title transfers to the purchaser as of the date of sale.

It may so happen that the Court has certain assets of the party in its possession and several
judgement debtors start claiming execution by sale. In such a situation the Court will give
proportionate proceeds. If amongst these decree holders who are claiming from the assets, there
is the Government party, then the claim of the Government will be fulfilled first, and then with
the rest of the money there will be a proportionate distribution of the same. But if the
Government has a due from its commercial activities, then the Court will treat the Government
at par with other judgement debtors.

LIMITATION ACT 1963 DISCUSSION

What does the LA 1963 limit: It sets a time limit within which one can invoke a remedy against
their cause of action. The idea of a limitation primarily is to ensure that after a certain point of
time, they cannot bring forth a case or appeal against a decree.

Limitation Act is a balance between technicalities v. substance/merits of a case. Procedural law is

all about ensuring that strict interpretation of technicalities does not take precedence over the
idea of justice.
If you look at the perspective of the defendant with respect to the Limitation Act, it furthers a
sense of justice for them as well. The act does give a reasonable time period to institute a suit or an
appeal.

Assistance of law in order to grant justice, can only be granted to those who are vigilant about
their rights and not dormant or sleeping on them.

It is so assumed that dormant claims have more cruelty in them compared to the idea of justice.

If you really have a cause of action, then you will pursue it with due diligence.

The bar imposed by limitation is a hard one, and explanations such as injury or irreparable harm
will not stand.

Scope: Applies to all suits, appeals, and applications which may be instituted in a Civil Court. If
the nature of proceedings initiated is not in the nature of suits, appeals, applications, then the
Limitation Act cannot be applied in those cases. If the legislation intends to impose a limitation
period, then there will be specific provisions for the same. In such cases, the Limitation Act
cannot be extended here.

Limitation bars a remedy but NOT the right. Ex: A has taken a loan from B of 1 Lac Rupees. A
did not file the suit in Court within the limitation period for the recovery of money. The suit is
now time barred in the Court of law. Question here is whether the debt is time barred, or is the
relief barred. But the right still exists in me with respect to that money. So if you can recover the
money in any other fashion, then it is allowed.

There is no time barred defence but there is a time barred institution of the suit.

Counter claim is in the nature of a suit, and not like a defence.

Section 3 of the Limitation Act 1963 [Bar of Limitation]: —(1) Subject to the provisions
contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application
made after the prescribed period shall be dismissed, although limitation has not been set up as a
defence.

Duty of a Court to ensure that a particular suit is filed within the period of limitation. The decree
would be a nullity if the case was one which was time barred by operation of the Limitation Act.

Even if the objection is not taken, the Court is bound to examine the operation of the limitation
act, and even at the stage of execution, the decree can be set aside on the basis of limitation. At
any stage the decree can be set aside. Therefore, it becomes imperative for the parties to ensure
that parties mention exactly when the cause of action arose, for the purposes of calculating the
limitation period.
After reading the Plaint, the Court can reject it on the basis of limitation without even issuing a
summons to the defendant or getting into the merits of the case.

Section 3 is a mandatory section and Court does not have discretion under the same. Objections
do not matter because they can be taken at any stage. This is because there is a lack of
jurisdiction that goes into the root of the matter.

The prescribed periods for particular kinds of suits are enumerated under the Schedule of the
Limitation Act.

From the day on which the right to sue/appeal/application emanates is the same day on which
the limitation act period begins.

Expiry of prescribed period when court is closed [Section 4]: Where the prescribed period for
any suit, appeal or application expires on a day when the court is closed, the suit, appeal or
application may be instituted, preferred or made on the day when the court re-opens.

Explanation—A court shall be deemed to be closed on any day within the meaning of this section
if during any part of its normal working hours it remains closed on that day.

In certain cases the Court can condone the delay as under Section 5 of the Act: —Any appeal
or any application, other than an application under any of the provisions of Order XXI of the
Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period if the
appellant or the applicant satisfies the court that he had sufficient cause for not preferring
the appeal or making the application within such period.

Explanation—The fact that the appellant or the applicant was missed by any order, practice or
judgment of the High Court in ascertaining or computing the prescribed period may be
sufficient cause within the meaning of this section.

Scope of Section 5 only applies to Appeals and Applications and not to institution of suits. Even
if you are able to show sufficient cause for the suit, the Court does not have the power to
condone the delay.
Sufficient cause is basically that one should be able to show that despite the fact that you were
not negligent, and no intent to sit on your claim, but there were externalities which prevented
you from instituting the suit.

Government Suits: In theory private litigants and governments should be treated at par. But in
reality they will be lenient in enforcing the provisions for a practical consideration of public
interest.

CALCULATION OF PERIOD OF LIMITATION – As per Section 12(1), the day from which the period
is to be reckoned is excluded.
As per Section 13, if there is an indigent person, then the person has to first apply to the Court
to allow him to litigate as an indigent person. The period of limitation would then start ticking
from the time when his application to litigate as an indigent person is allowed.

Section 14: If a person is litigating in a Court which he believes has jurisdiction in a bona fide
manner but it later turns out that the Court does not have jurisdiction then the time for which
the suit or appeal or revision was being continued would be excluded from the computation of
limitation period.

Extinguishment of Right to Property [Sec. 27]: At the determination of the period hereby
limited to any person for instituting a suit for possession of any property, his right to such
property shall be extinguished.

Perfection of title by adverse possession: If the other person knows that another guy is sitting on
your land in adverse possession, then once the limitation period has elapsed, the former guy will
not have a right left in the property.

Execution

Decree-Holder- person in whose favour decree has been granted.

Judgement Debtor- person against whom a decree has been passed or an order capable of
execution has been made.

Once a trial comes to an end and the court has pronounced a judgment, the immediate next step
is to furnish a decree. It is on the judgment debtor to decide whether he wants to appeal the
decree or enforce it. Execution of a decree is basically an idea wherein a particular court ensures
that a decree that is passed and the mandate created by that decree is secured to the decree
holder. The execution is complete when the judgment–debtor or decree holder gets money or
other things awarded to him by the judgment, order or decree.

S. 36 to 74 CPC- substantive provisions, Order 21- procedural provisions. After the decree is
passed and if the party does not abide by the decree, then decree-holder may enforce it.

Courts which may execute the decree

As per s. 38- decree may be executed either by court that passed the decree or by the court to
which it is sent for execution.

S. 37- court that passed the decree. The following courts fall within this expression:

i) The court of first instance that actually passed the decree

ii) The court of first instance in case of appellate decree
iii) Where the court of first instance has ceased to exist, the court which would have jurisdiction
to try the suit at the time of execution; and
iv) Where the court of first instance has ceased to have jurisdiction to execute the decree, the
court which would have jurisdiction to try the suit.

In situations, where court A passed a decree, and thereafter, part of the area within A’s
jurisdiction is transferred to B, then does court A continue to have jurisdiction for execution?
Answered by the SC in Mella Ramanna v. Nallaparaju- the court that passed the decree does
not lose its jurisdiction merely by the area being subsequently transferred to the jurisdiction of
another court.

Whether court B also has jurisdiction to entertain execution applications without formal
transmission of the decree from court A to B? Conflicting decisions by Calcutta HC and Madras
HC but Explanation to S. 37 upholds former view- both concurrent courts would be competent
to entertain the application for execution of the decree.

Transfer of Decree for Execution- S. 39-42; Order 21, rules 3-9

As a general rule, the court which passes the decree executes it, but such court may send the
decree for execution to another court either suo moto or on application of the decree holder if the
following grounds exist (not mandatory, the court can exercise discretion):

a) Judgment debtor actually and voluntarily resides or carries on business, or personally

works for gain within local limits of the jurisdiction of such courts
b) Judgment debtor does not have property sufficient to satisfy the decree within local
limits of the jurisdiction of the court which passed the decree but has property within
local limits of the other court’s jurisdiction.
c) Decree directs sale or delivery of immovable property outside local limits of other court’s
jurisdiction.
d) Court which passed the decree considers it necessary- reasons to be recorded in writing.

Moreover, the transferee court must have pecuniary jurisdiction to deal with the suit in which the
decree is passed, and the court passing the decree has no power to execute a decree against
person or property outside its territorial jurisdiction.

Execution of Foreign Decrees- S. 43- Indian courts have power to execute decrees passed by
Indian courts to which CPC does not apply. S. 43- courts situated outside India, est’d by Central
Govt’s authority. S. 44- revenue courts in India and S. 44A superior courts of any reciprocating
territory. S. 45- provides for execution of decree passed by Indian courts in foreign territory.

The decree-holder may execute the decree at more than one place, but should be exercised in
exceptional cases after issuing notice to the judgment debtor.
Procedure in Execution- Rule 6-
Where a decree is sent for execution to another court, the court which passed the decree shall
send a decree to such court with-
(1) a copy of the decree;
(2) a certificate of non-satisfaction or part-satisfaction of the decree with the extent of execution;
(3) a copy of an order for the execution of the decree, or if no such order is passed, a certificate
to that effect.

Transferee court would have the same powers as the transferring court which had passed the
decree partly.

Once a decree has been passed and an execution application has been filed, a court cannot go
into the validity of the claims of the parties.

General Principles:

i) Territorial jurisdiction is a precondition to executing a decree, and therefore, no court can

execute a decree in respect to property situated outside its jurisdiction.
ii) The Executing court cannot go behind the decree- has to execute the decree as it stands.
iii) In case of inherent lack of jurisdiction, the decree passed is a nullity and its invalidity could be
set up in the execution proceedings.
iv) Inherent lack of jurisdiction, must appear on the face of the record.
v) Decree which is valid or enforceable, does not become unenforceable on the death of
judgment debtor or decree holder.
vi) When terms of the decree are vague, the court can construe the decree to ascertain its precise
meaning. For this purpose, the court can refer not only to the judgment but also to pleadings.
vii) An executing court can go into question of executability and whether the decree has ceased
to be executable by subsequent developments.
viii) A decree which becomes inexecutable by operation of law, may become executable by
subsequent amendment and can be executed after that.
ix) The Executing court has power to mould relief in accordance with changed circumstances.
x) Court executing the decree transferred to it has the same powers as if it had passed the decree
by itself.

Application for Execution-

Who may apply for execution of the decree?

- Decree Holder
- Legal Representative of the decree holder, if he is dead
- Representative of decree holder.
- Any person claiming under the decree holder (whose rights are contingent on the rights
of the decree holder)
- Transferee of the decree-holder, if following conditions are satisfied:
 a) The transfer of the decree should be in writing or the transfer should have
happened by the operation of law.
b) Application for execution must have been made to the court which passed decree
c) Notice and opportunity of hearing must be given to the transferor and the
judgment debtor in case of assignment by transfer. Court cannot begin execution
proceedings without a notice that the transferee is asking for a transfer, in the
absence of which, it will be void.
- One or more of the joint decree-holders can get the decree executed if:
a) There exists no condition to the contrary in the decree.
b) The execution is for the whole decree, irrespective of individual rights and
interests.
c) The application is made for the benefit of all decree holders.
- Any person having special interest.

An agent of the decree holder or a person represented or is representing in a representative suit

may file for execution.

An application can lie against

● Judgment debtor
● legal representative of the judgment debtor, if the judgment debtor is dead
● Representative or person claiming under judgment debtor.
● Surety of the judgment debtor

Contents of an application of execution

● Should be in writing, signed by the parties and verified
● It shall contain the necessary particulars like:
a) Must mention the suit number where the decree has been passed
b) Name of the parties
c) Date of decree
d) Amount of decree
In case the application requires a movable property to be attached belonging to the judgment
debtor but not in his possession, the property should be reasonably accurately described in the
application for execution.

In case of attachment of immovable property of judgment debtor, the application must contain:
a) description of such property sufficient to identify the same. b) The interest or share of the
judgment debtor must be defined.

If it requires arrest of a person, it shall state or be accompanied by an affidavit stating the

grounds for why the judgment debtor should be arrested or detained.

Procedure for receiving application-

Rule 17- prescribes procedure for receiving an application for executing a decree. It casts duty
upon the court to ascertain whether the application complies with Rules 11 to 14 requirements.
If they are complied, then the court admits and registers the application. If not, the court shall
allow the defect to be remedied within a time fixed by it. If defect is not remedied, then court
rejects application.

Notice

R. 22- provides for show-cause notice to judgment debtor in certain cases. However, as a general
rule, the law does not require notice to be issued for execution. Only in the following cases:

Notice required -
- Where application is made 2 years after date of decree
- Where application is made against legal representative of the judgment debtor
- Where application is made to an Indian court for execution of decree passed by a court
of a reciprocating territory
- Where application is made against the assignee or receiver of insolvent judgemnt-debtor;
- Where decree is for payment of money and execution is sought for arrest and detention
of judgment debtor;
- Where application is made against surety;
- Where application is made by the transferee or assignee of the decree holder.

The underlying object of giving notice to judgment-debtor is not only to afford him an
opportunity to put forth objections against maintainability of execution application but also to
prevent him from being taken by surprise and to enable him to satisfy decree before the
execution is issued against him.

Omission to give notice is a defect which goes to the root of the proceedings and renders it null
and void. However, if the court feels that granting notice will cause inordinate delay or defeat
provisions of justice, the court may dispense of requirement of notice with reasons recorded in
writing.

If the person to whom notice is given does not appear or does not show cause against execution,
the court may begin execution proceedings.

After notice, hearing stage. Herein, if the applicant does not present himself, the application will
be dismissed. If the respondent does not, the court may proceed ex parte.

Limitation- For any decree, an execution application may be filed within 12 years of passing. In
decrees that concern perpetual mandatory injunctions, an application may be filed within three
years.
Stay of Execution: Rule 26

This rule lays down that the executing court shall, on sufficient cause being shown and on the
judgment-debtor furnishing security or fulfilling such conditions, as may be imposed on him,
stay execution of a decree for a reasonable time to enable judgment debtor to apply to the court
which as passed the decree or appellate court for an order to stay injunction.

R. 29- provides for stay of execution pending suit between judgment-debtor and decree-holder,
where a suit by the judgment debtor against decree holder is pending in court. (requires 2
simultaneous suits in one and the same court)

Underlying object is twofold: 1) to enable the judgment-debtor and decree-holder to adjust

claims against each other and ii) to prevent multiplicity of execution proceedings.

This is discretionary and not mandatory- to be exercised judicially and in the interests of justice.
The rule is based on the principle that the judgment debtor should not be harassed if he has a
substantial claim against decree holder which is pending for the decision of the court executing
the decree. If there is some substance in the claim, then court may order stay, but not otherwise.

Mode of Execution

S. 51 CPC lays down several modes of enforcement of decree-by delivery of any property
specified in the decree, by attachment and sale or by sale without attachment of any property , or
by arrest and detention in civil prison of the judgment-debtor or by appointing a receiver,or by
effecting partition,or in such other manner as the nature the relief may require.

Choice of Mode

CPC allows more than one mode of execution- a combination of modes of execution of a
decree. As a general rule, a decree-holder has the option to choose a particular mode of
execution of a decree passed by a court in his favour. This is however, subject to limitations and
discretion of the court.

Since the CPC provides the decree-holder several modes of enforcing the decree- the court
passing a decree against a defendant should not ordinarily place any limitation as to the mode in
which it can be executed.

In Shyam Singh v. Collector, Dist. Hamirpur- for recovery of certain debts- simultaneous
proceedings for execution were taken- for attachment of sale of movable as well as immovable
property. This was upheld by the SC as there is no statutory provision against the number of
execution proceedings continuing concurrently, and S. 51 gives the decree-holder the option of
enforcing the decree either against the person or the property of the debtor. There is no
provision that requires the decree holder to proceed against the property first, before the person.
It followed the rationale of the court laid out in P. R. Sugar Works v. Land Reforms Commr.
However, simultaneous execution is up to the discretion of the court, which must be exercised
judicially.

As per Takwani, Mono Mohan v. Upendra Mohan lays out correct law- if there are no special
circumstances present, it is not open for the Court to say that the decree holder must go against
property of judgment debtor first, before warrant of arrest. “There may be circumstances
present in a case which would not only justify a refusal to allow the decree-holder to have
process for the arrest and detention of the judgment-debtor, but, we are prepared to go further
and say that there may be circumstances which would demand such a refusal.”

Modes such as arrest and appointment of receivers are very extreme - the court will not be
convinced easily, must consider the special circumstances of the case. .

2 limitations to choice of mode

● The mode must not be limited to a particular decree
● If a mode is not required (say arrest), and even without it, the decree can be enforced

Decree sought to be executed - cannot be piecemeal. Barred by res judicata.

Modes prescribed for cases

a) Delivery of Property
● R. 31- A decree for recovery of specific movable property (must be in the possession of
judgment-debtor), it may be executed by seizure and delivery of property or arrest and
detention or attachment and sale of property or by attachment and detention both.
(Specific movable- does not include decree for money).
● R. 35-36- A decree for recovery of immovable property in the possession of judgment
debtor or person bound by decree, can be executed by removing such judgment debtor
or person from possession and delivering it to decree holder. This is known as imparting
khas or actual possession by way of execution, if the decree holder satisfactorily establishes
identity of the property.

b) Attachment and Sale of Immovable Property: S. 51 (b)

S. 51 (b) empowers court to order execution of a decree by attachment and sale or by sale
without attachment of any property. The court is competent to attach the property if it is situated
within the local limits of the court’s jurisdiction. It is immaterial that the judgment-debtor’s place
of business is outside the court’s jurisdiction.

The words attachment and sale in 51 (b) are to be read disjunctively- the attachment of property
is not a condition precedent to the sale. Sale of property without an attachment is not void or
without jurisdiction and does not vitiate such a sale (merely an irregularity). Order of attachment
takes effect from the moment it is brought to the notice of the court. The object is to inform the
judgment-debtor about the attachment so that he may not transfer or create encumbrance over
the property thereafter.

c) Arrest and Detention: S. 51 (c)

Arrest and detention of judgment-debtor in civil prison is one of the modes of executing a
decree. The proviso lays down that where the decree is for payment of money, executing by
detention in civil prison should not be ordered unless, after giving the judgment-debtor an
opportunity of showing cause why he should not be so detained, the court for reasons to be
recorded is satisfied:

(I) that the judgment-debtor with the object of obstructing or delaying the execution of the
decree;

(a) is likely to abscond or leave the local limits of the jurisdiction of the court; or
(b) has, after the institution of the suit in which the decree was passed, dishonestly transferred,
concealed or removed any part of his property, or committed any other act of bad faith in
relation to his property ; or

(II) that the judgment-debtor has, or has had since the date of the decree, the means to pay the
amount of the decree or some substantial part thereof and refuses or neglects or has refused or
neglected to pay the same; or

(III) that the decree for a sum which the judgment-debtor was bound in a fiduciary capacity to
account for.

These provisions are mandatory in nature- must be strictly complied with. Mere failure to pay the
amount does not justify arrest and detention of the judgment-debtor.

d) Appointment of receiver- S. 51 (d)

Equitable execution and is entirely at the discretion of the court. It is an exception to the general
rule that the decree-holder chooses the mode of execution and that the court has no power to
refuse the mode of execution. The appointment of receiver is an exceptional remedy and a very
strong case is needed in support of it. Before resorting to this mode, the decree-holder must
show that there is no effective remedy for obtaining relief by usual statutory modes of execution.
The court must also be satisfied that the appointment of receiver is likely to benefit both,
decree-holder and judgment-debtor rather than a sale of attached property. It has also to be
satisfied that the decree is likely to be realised within a reasonable time from the attached
property, so that the judgment-debtor may not be burdened with property while he is deprived
of it.

e) Partition

f) Cross Decrees and Cross-Claim: R 18-20

Cross decree and cross claim can by analogy be extended to mortgage claims and not just
monetary claims.

Cross-decree- R. 18- enacts that cross-decrees for the payment of money shall be set-off against
each other. If amounts in the 2 decrees are equal then both decrees satisfy each other, and full
satisfaction is recorded and no payment is required by any party, and no execution to be taken
out. Eg. A holds decree against B for 10,000 & B holds decree against A for 10,000- both apply
for execution of their decree to court A. Being cross decrees, they will be set-off against each
other- no party will be allowed to take out execution.

If, the amounts in the 2 decrees are unequal then full satisfaction will be recorded upon the
decree for the smaller amount and part satisfaction upon the decree for the larger amount, and
the execution will be allowed only for the balance. Eg. A holds decree against B for 10,000 & B
holds decree against A for 5000 (smaller amount)- both apply for execution of their decree to
court A. Execution will only be allowed for A’s decree to the balance of 5000 (difference b/w 2
after set-off).

Cross Claim - R 19-20

R. 19 provides for set-offs in case of cross-claims in the same decree. It must be shown that both
parties seek to recover a sum of money arising out of the same decree, sought to be executed by
one and against the other party.

g) Payment of money- R. 2, 30

A decree for payment of money may be executed by attachment and sale of property of
judgment-debtor or by his detention in civil prison or by both. All money payable under a decree
shall be paid either (i) by depositing in the executing court; or ii) out of court to the
decree-holder or iii) as per the direction of the court which has passed the decree.

Decree of specific performance or injunction - by way of attachment, detention or both.

Where such decree is passed against a corporation, a decree may be enforced only by attaching
the property of the corporation or sending to prison any officer of the corporation, or both.

h) Specific performance of contract- R. 32

Where a decree is for specific performance of a contract, and judgment debtor wilfully disobeys
it- it may be executed by attachment of property or detention in civil prison. Decree for specific
performance creates mutual rights and liabilities in favor of both parties.

i) Injunction- R. 32
Where decree is for injunction and the judgment-debtor disobeys, it may be executed by
attachment of property, or detention or by both. Applies to both prohibitory and mandatory
injunctions.

j) Restitution of conjugal rights- R. 32-33

Where a decree is for restitution of conjugal rights, and judgment-debtor willfully disobeys it, it
may be executed by attachment of property. Such decree cannot be executed by detention- only
permissible mode is attachment of property.

If a judgment-debtor obeys the decree and goes to live with the decree-holder, then satisfaction
can be entered into the decree. However, if the judgment-debtor is ready and willing to live but
the decree-holder obstructs execution without reasonable cause, then the court can at the
instance of the judgment debtor, enter satisfaction of the decree.

k) Attachment of rent, mesne profits- R. 42

Where decree is for unascertained rent, or mesne profits then court may order attachment of
property of judgment debtor until amount due is ascertained.

Arrest and Detention

Subrata Roy Sahara v. Union of India- the SC held that for execution of decree for payment
of money, an executing court may order arrest and detention of the judgment-debtor. Since,
object is to make payment, a person arrested or detained would not be discharged from debt.

It can only be made to coerce the party to pay - no method to offset any amount of the decree
holder. If the judgment-debtor has means to pay and still refuses or neglects to pay, he can be
sent to civil prison. Mere omission to pay is not sufficient. Before ordering detention, the court
must be satisfied that there was an element of bad faith or mala fide.

It can be ordered in case of decree for payment of money, specific performance of a contract, or
injunction;

Anyone can be arrested except -

● If the judgement debtor is a woman
● If the judgement debtor is a judicial officer himself
● Parties to a suit while they are traveling to court or litigating their matter before court
● MLAs and MPs
● Any person who, in the opinion of the govt will cause extreme inconvenience to the
public at large
● Anywhere where the decretal amount is less than Rs. 2000

Procedure-
Arrests can happen only during the daytime and not after sunset. The officers of court should
not use inappropriate force unless the judgement debtor is resisting. The moment a person is
arrested, they must be brought before a court as soon as possible (no 24 hour limit). If there is a
pardanashin woman in the premises where an arrest is to be made, the lady should be allowed to
vacate the premises. The moment the judgement debtor pays the amount, he has to be released.

Release of Judgment-debtor: S. 58-59

JD can be released in the following cases:

a) On the amount mentioned in the warrant being paid;
b) On decree against him being otherwise fully satisfied
c) On request of decree-holder
d) On omission by decree-holder to pay subsistence allowance;
e) On the ground of illness.

Attachment of Property

It is done with an objective of giving a notice to the judgement debtor and also to the world at
large that a particular property is subject to execution of a certain suit or decree and thus, the
judgement debtor should not deal with it or any other person should not deal with it. If not to be
dealt in, the court can sell it off to secure the benefit of the decree holder if needed.

Only that court in whose territorial jurisdiction the property which is to be attached lies, is
competent to attach the property. All sale-able property (movable or immovable) which is the
property of the judgement-debtor can be attached or restricted.

How to attach the property if it is of certain nature or in possession of someone?

● If movable, in possession of judgement debtor - Actual seizure by court, it would keep it
with itself. If the property is perishable or the expense of keeping it is likely to exceed its
value, the court can sell it off.
● If the movable property cannot be taken by seizure, and consists of livestock, agricultural
implements etc., - court will appoint custodian - a reasonable and respectable person of
society will take care of that property while the suit is in pendency. Custodian may or may
not be of the nature of a receiver - role is to ensure no harm comes to the property.
● If movable property not in possession of the judgement debtor - court can issue order to
whoever possesses, prohibiting the person from giving property to the judgement debtor.
● Where property is a negotiable instrument, court can seize and then attach.
● Share capital - court can issue an order against transfer of the share capital, prohibiting
the person in whose name the share stands from transferring it or receiving dividend -
can issue orders to corporations as well, saying that the shares are not to be transferred
until further orders.
● Shares in possession of judgement debtor - order against transfer of the shares, and any
dividends will neither be paid by company nor received by judgement debtor.
 ● Debt attached - prohibiting payment to judgement debtor.
● When the judgement debtor is a co-owner in a certain property, the court can issue an
order requiring him to align it or not, or charge interest in that property.
● Court can issue an order saying salary and allowances not to be paid.
● Property of partnership - court can attach it either by charging partner's interest or can
appoint receiver with regards to partner's interest or share in profit which can be
attached by receiver itself to keep with himself or give to court.
● In custody of court or public officer - court can issue order not to deliver it to judgement
debtor.
● Decree - either a mortgage or money decree - decree passed by the same court which is
executing current proceedings where the decree holder is the judgement debtor. Decree
is not to be executed in favour of the judgement debtor in that particular suit.
● Agricultural produce - if growing crops, not harvested - court can attach a warrant of
attachment on land cultivated. If stock of harvested crops, court can attach by issuing a
warrant on a conspicuous part of property where crops are kept and stored. Warrant is
issued - crops cannot be transferred.
● Whether growing crops or harvested crops, court can attach a copy of the same warrant
at the place where the judgement debtor resides or voluntarily works.
● Immovable property - court can issue an order prohibiting the judgment debtor from
transferring or charging it in any manner and all persons from taking any benefit from
such transfer or charge.

In what court will the execution proceeding lie?

It may so happen that the court which has passed the decree will not have sufficient assets of the
judgement debtor - the decree holder can then ask for transfer of the case.

A Precept is an order or direction given by the court which passed the decree to a court which
would be competent to execute the decree to attach any property belonging to the
judgment-debtor. The object of attachment is to enable decree-holder to obtain an interim
attachment of the property of the judgment debtor situated within the jurisdiction of another
court, where it is apprehended that decree-holder may be prevented from benefiting from the
decree.

While the transfer application is pending, court A issues an order to court B asking for
attachment of whatever assets lie in the jurisdiction of court B. This is so that while the decree
holder is litigating, the judgement debtor may not annihilate his property or assets in the other
jurisdiction. This cannot be attached in perpetuity - can be attached for maximum period for 2
months (may be extended).

Garnishee Order- R. 46 A- 46-I

Garnishee order- where decree holder seeks to reach money or property of the judgment debtor
in the hands of a third party (the debtor of judgment debtor). By this process, an executing court
may order a third party to pay to the decree holder, the debt from him to the judgment debtor.
Garnishee- judgement debtor's debtor is called a garnishee. Garnisher is a judgment debtor who
initiates garnishee proceedings.

Once a garnishee performs part of its decree in favour of the judgement debtor in furtherance of
garnishee order, it is assumed that garnishee has satisfied the decree holder..

R. 46A requires a notice- Once an application for garnishee order is applied to the court, it is the
mandate of the court to give a notice to the garnishee, informing him to appear before court and
furnish all facts which show the benefit that he owes to the judgement debtor. The notice should
allow the garnishee to take any objection if he wants to. Without notice, order would be null and
void.

Garnishee must approach court, and on affidavit, inform the court of all the facts with regards to
the decree which is against the garnishee and the favour of the judgement debtor in the other
suit between himself and the judgement debtor.

Garnishee order is not a right but an equitable remedy. Thus, it lies at the discretion of the court.

When is it that the court can release property from attachment?

● Once terms of a decree have been fulfilled.

● Court upholds an objection against the attachment and makes an order releasing the
property.
● Where decree is reversed or set aside.
● Where after the attachment the application for execution is dismissed.
● Where the attaching creditor withdraws or abandons attachment.
● Where the suit is dismissed.
● Execution proceedings dismissed for some reason - appellate court decision maybe.
● Where the decree holder is ordered to perform certain terms as per decree, and he
refuses to perform.

There can be no private disposition of the property if against interests of the decree holder. If
not against interests, the disposition will be upheld.

Questions to be Determined by the Executing Court

As per S. 47, if the question:

(1) arises between the parties to the suit in which the decree was passed, or their
representatives and;

(2) it relates to the execution, discharge, satisfaction of decree concerned - the question
is to be determined by the executing court only and not by separate suit.
Basic idea: once a matter is in execution, no other suits should emanate from the suit to prevent
unnecessary litigation. All questions must be dealt by the executing court as part of the execution
proceedings itself - making proceedings cheap and expeditious.

The scope of S. 47 is very wide, and must be construed liberally to determine all questions,
unless they clearly fall outside its scope and purview. Exclusive jurisdiction is conferred to the
executing court in respect of all matters relating to execution, discharge or satisfaction of a
decree arising between the parties or their representatives.

'Parties': people concerned with execution proceedings. Example, in a partition suit - A v B, C, D.

All are decree holders. Here party refers to decree holder and judgement debtor. Person who
purchases property sold in execution of a decree is also a party within meaning of S. 47
.
'Representatives': not only legal representatives in the sense of heirs, executors etc., but also
representative-in-interest i.e., any transferee of interest of the judgement debtor or decree holder.

In satisfaction/execution/discharge of a decree: questions pertaining to mode of execution,

executability of decree, is decree holder entitled to a different remedy, whether the decree holder
is entitled to mould relief due to changed circumstances, who is representative of the party - all
questions pertain to execution/discharge/satisfaction. However, questions regarding whether the
decree is fraudulent or collusive, whether the decree has become executable by a compromise,
relating to territorial or pecuniary jurisdiction of court passing the decree, relating to correctness
or validity of decree, except where decree is a nullity are outside the scope.

Objection raised against attachment of property and any third person or party affected thereby -
any consideration by court with regards to objections to attachment lies within the ambit of S 47.
But there is a specific provision in order to ascertain the procedure to be followed with regards
to objections to attachment - different from S 47 (VM will do later - Order 21 Rule 58).

Adjudication of Claims

Rule 58 Order 21 -

Where any property is attached in execution of a decree, it is always open to the parties, their
representatives or third parties to raise objections against such attachment.

If the objection is raised by a party or his representative, the question falls under Section 47 of
the Code and should be decided by the executing court and not by a separate suit.

If, on the other hand, such an objection is raised by a third party, two courses are open to him.
Firstly, he may straight away file a suit claiming appropriate relief. Secondly, he may file an
application under Order 21 Rule 58 of the Code to the executing court. Where the executing
court entertains a claim or objection, it will hold a full-fledged enquiry into the right, title and
interest of the objector and record a finding either upholding the claim or objection or rejecting
it. The aggrieved party has the remedy to prefer an appeal, but not file a suit.

DIFFERENCES - O21 R58 AND S 47.

Both Section 47 and Order 21. Rule 58 of the Code are similar in certain aspects. Both of them
relate to execution proceedings. Both enact that all questions covered by them should be decided
by the executing court. Both the provisions expressly bar filing of a suit.

In spite of these similarities, there is an essential distinction between the two. Whereas Section 47
applies to parties to the suit (or their representatives), Order 21 Rule 58 applies to third parties
(or their representatives). Section 47 not only bars suits but also bars an appeal. Order 21 Rule 58
bars a suit but not an appeal. On the contrary, sub-rule (4) of Rule 58 expressly states that the
order passed by the executing court "shall have the same force and be subject to the same
conditions as to appeal (or otherwise) as if it were a decree". Finally, bar of suit under Section 47
is absolute and unqualified, while bar under Order 21 Rule 58 is conditional and qualified (would
not be barred if the property was sold before the claim or objection was raised, or the claim or
objection was designedly or unnecessarily delayed).

Any person who at the time of attachment of property has some right, title or interest in or
possessed of the property attached, may lodge a claim or raise an objection against the
attachment.

Sale and delivery of property - 2 modes to be discussed in today's class.

Sale of property- Rules 64-73

An execution court has the power to sell off a property which it has attached (or not), belonging
to judgement debtor in order to fetch some value, which can be used to do good claims of
decree holder. However, it may so happen that the estate of the judgement debtor is way bigger
than the amount required to be paid as per the decree. Herein, it is the duty of the court that it
checks the possibility of partial sale of the property. The court has an obligation to enquire
whether sale of part of the property is sufficient to satisfy the decree. The court’s duty is to sell
such property or portion as necessary to satisfy the decree.

Whenever a sale is to happen, it must happen by way of a public auction so as to fetch the best
price. After the property is attached and ordered to be sold by public auction, the first step in the
procedure is to issue a proclamation to that extent - to advertise the sale in order to fetch the
best value of that property.

Before the making of a proclamation, the court must call the decree holder and judgement
debtor and inform them of the issuance of proclamation. This is before the proclamation is
made. If a proclamation is made without such a notice, the proclamation as well as the sale
resulting would be a nullity.
The proclamation should state
● The time and place of proclamation of the property
● Whether for complete or partial sale
● Any revenue assessed on the property
● If there is any encumbrance or charge over that property
● Amount to be paid in satisfaction of decree
● May state any other thing which the court deems fit in light of the circumstances

Service of notice on a judgment-debtor is a fundamental step in execution and if not waived, it

must be complied with. Any sale made without a proclamation is a nullity.

The proclamation protects interests of the intending purchasers by giving them all material
information, and protects the interests of the judgment debtor by facilitating the fetching of
proper market price for his property and preventing it from being sold at a price below its
market price.

Can be made
● By beat of drums
● By attaching a copy of the proclamation order in the courthouse and a conspicuous part
of the property which is to be sold

Once proclamation is made, if the property is immovable, the proclamation stays for 15 days
before the property is sold. If movable, this time period (between proclamation and auction)
stands at 7 days.

If the property is perishable or of nature that its cost would fall in the time period, then the sale
must be effectuated as soon as possible.

Even after proclamation, the court has a discretion to adjourn the sale to a future date. However,
if adjournment is given for more than 30 days, a fresh proclamation must be made.

If during this process, the decree amount is paid into the court, the court may stop the sale.

Default by Purchaser (R. 71)- If there is a default committed by the auction purchaser, the
property would not be sold to him. Property may go for resale - if it does not fetch as much as it
fetched earlier, the deficit is to be borne by the defaulting auction purchaser. Therefore, any
deficiency of price necessitated by the purchaser’s default shall be recoverable from the
defaulting purchaser. Whenever an adverse order of such nature is made against the auction
purchaser, a notice must be issued to give an opportunity of hearing to show cause why an order
adverse to him should not be passed.

Who can bid for the property? Anyone except the decree holder, unless they have sought
permission from the court. A mortgagee of a mortgaged property in a decree cannot, unless he
has sought permission from the court. Similarly, any person who is an officer of the court who is
tasked with managing affairs relating to the auction cannot bid. All other persons can bid.

If the decree holder purchases with permission, they are entitled to a set off. If the mortgagee is
purchasing, then in the order for permission the court will mention a base value that the
mortgagee must pay at the very least. The permission given by the court in either of these cases
is not a judicial decision, but largely an administrative one. However, the decision should seem to
be a reasonable one that is taken in light of all the circumstances.

A property to be sold could be a movable property or an immovable property. There are separate
procedures in the court that address movable and immovable properties. If what is being sold is
agricultural produce, it should be sold at a place where the crops are
● Either currently growing
● Or where they have been harvested or whether they are lying (if they have been
harvested)
● Or if another place would fetch better value in the court's opinion

Such sale would be postponed if fair price is not offered, or if no sale for growing crops may be
made until they are harvested. But, if there is a crop of such nature that it cannot be stored, then
growing crops may be sold and the purchaser may be given the right to harvest those crops from
the land where they were growing.

SALE OF SHARES: No requirement for the sale to be by way of auction. The Court can instruct
any broker to sell the shares in the market for the best price.

The payment shall be made at the time of the sale, and then sale becomes absolute. Confirmation
of sale is not necessary in the sale of immovable property. In case of default of purchaser,
property will be resold and deficit must be covered by defaulting purchaser.

R. 78 provides that irregularity in procedure of sale does not make it void. The petitioner has to
show substantial injury caused to him.

Any person sustaining any injury by reason of any irregularity in sale at the hands of any other
person may sue him for compensation, or, if such person is the purchaser,for recovery of the
specific property and for compensation in default of such recovery. Again, an application to set
aside a sale of movable property lies where the court had no jurisdiction to order the sale

SALE OF IMMOVABLE PROPERTY- S. 82-94

The Court can always postpone the sale if the judgement debtor applies to the Court by saying
that if there is a private alienation of property [sale, lease, mortgage] then he would be able to
raise the amount due under the decree as under Rule 83. Enables the judgment debtor to raise
decretal dues by private alienation (this is at the discretion of the court and will not be allowed
when the judgment debtor had sufficient time to pay the decretal dues, and the dues would not
be satisfied by private alienation in full)

Application for sale to be set aside: Within 60 days of order of sale, an application for setting
aside the sale must be filed as provided under Rule 92(2). If no application comes even after 60
days, then the Court will confirm the sale.

When an order of sale has been issued, the court can always postpone the sale if the judgement
debtor applies for the sale and says that they would be able to realise the amount through ways
of private alienation (lease/mortgage) etc and furnish it. In such a case, an opportunity may be
granted to the judgement debtor if it deems fit to do so.

Until and unless the sale is confirmed by the Court it is not absolute in respect of immovable
property.

Once sale has been made, the purchaser pays for price in the following manner:
● Is bound to pay 25% of the value immediately after the sale
● Remaining amount is to be deposited with court within 15 days of the sale
If the auction purchaser in these kinds of duties defaults, the deficits must be done good by the
auction purchaser. Non-compliance with the procedures is not a mere irregularity, but vitiates
the sale. In case of default, the court has discretion to forfeit the purchase and must order resale.

Setting aside of a sale- R. 89 to 92

● On application of a particular party within a period of 60 days from the order of sale
● 60 days period of limitation. Court will sit from 60 days of the order of sale. After this, if
no application for setting aside the sale, then the court will confirm the sale. If there is an
application, and the court finds no merit it will confirm the sale.
● Applicant has to deposit a sum equivalent to the amount to be paid under the decree plus
5% of the purchase value at _
● Before setting aside the sale, court has to send a notice to all the parties who are likely to
be affected by such order and allow them to be a privy to a hearing for such order
(interested persons: JD, co-sharer of JD, member of HUF if HUF property in question,
receiver of property, etc.)

Setting Aside due to Irregularity or Fraud- A sale may be set aside if there is any irregularity
or fraud in the sale that has caused some injustice either to the purchaser or to the decree holder
generally [Rule 90] Substantial injury [under Rule 90(2)] needs to be shown for the Court to set
aside the sale. Either the auction purchaser or the decree holder can apply for setting aside.

Setting Aside due to JD having no Saleable Interest- The purchaser can apply for setting
aside the sale, if the judgement debtor did not have a saleable interest [Rule 91]. The purchase
money will be refunded on the basis of the same.
Once a sale is set aside, the purchaser will be refunded. If the sale is not set aside, it is confirmed,
and the title transfers to the purchaser of that property. This transfer is from the date of the sale
in the auction, not the date of confirmation (which happens after the sale was made in the
auction).

After sale has happened, if the purchaser is restrained from entering property at the instance of
judgement debtor - can appeal to the court, Court will conduct an inquiry - will pass an order
either stating that the obstruction was illegal and unlawful and allowing the application, or
denying it, or making any order it deems fit. This shall be seen as a decree.

It may so happen that the court has certain assets of a property in its possession and several
judgement debtors start claiming proceeds from the same. The court may grant these
proportionately. {X has assets worth 6k with the court. A debtor A has a decree of 10K and
another B has one of 5k. Both A and B will take proportionately - 4k to A and 2k to B.}//
Rateable or proportionate distribution of assets.

If among the decree holders claiming rights from assets with the court, one of the decree holders
is the govt, then the govt's dues will first be fulfilled to the complete; thereafter, from whatever is
left, the others shall gain rateably. If commercial activities are in question, the govt will be treated
at par with other decree holders.

If the Sale is not set aside then the Court will confirm the sale. Once the sale is confirmed the
title transfers to the purchaser as of the date of sale.

It may so happen that the Court has certain assets of the party in its possession and several
judgement debtors start claiming execution by sale. In such a situation the Court will give
proportionate proceeds. If amongst these decree holders who are claiming from the assets, there
is the Government party, then the claim of the Government will be fulfilled first, and then with
the rest of the money there will be a proportionate distribution of the same. But if the
Government has a due from its commercial activities, then the Court will treat the Government
at par with other judgement debtors.
 APPEALS

CPC Class 13th October 2022

First Appeals [Appeal from Original Decree]

Section 96(1) - Save where otherwise expressly provided in the body of this Code or by any other
law for the time being in force, an appeal shall lie from every decree passed by any Court
exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such
Court.
(2) An appeal may lie from an original decree passed ex parte.
(3) No appeal shall lie from a decree passed by the Court with the consent of parties.
(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature
cognisable by Courts of Small Causes, when the amount or value of the subject-matter of the
original suit does not exceed [ten thousand rupees]

Basic Elements of an Appeal

1. Decision (decree particularly) by an inferior court.
2. Aggrieved person (most often a person who was an original party to the suit i.e., either the
Plaintiff(s) or the Defendant(s).
3. reviewing body ready and willing to entertain an appeal

Ganga Bai v. Vijay Kumar: Appeal is not a right vested in an aggrieved person, rather it's a
creation of the statute left to the discretion of the Court. There is an inherent right vested in
everyone to bring about a suit of civil nature. There can be no bar to sue regardless of how
frivolous the claim is. The only bar will be one of statute.

But for an appeal there is a need for the clear authority of law for its maintainability. It's a
continuation of a suit. It's virtually a rehearing of the matter. They possess the same powers and
duties as a Court of first instance. In the Appeal Hearings they can re-examine evidence, etc and
reach a conclusion on their own (subject to statutory limitations). The First Appellate Court has
all the powers of a Trial Court.

In Anant Mills Co Ltd. v. State of GJ, the Supreme Court opined that the right of appeal is a
creature of a statute and there is no reason why the legislature cannot impose conditions for the
exercise of such a right.

Moreover, since an appeal is a creation of statute, if a state does not provide for an appeal
mechanism it cannot be said that such a provision is unconstitutional as held by the Supreme
Court in Kartar Singh v. State of Punjab(1994).
Distinction between Appeal and Revision

When the aid of the High Court is invoked on the revisional side it is done because it is a
superior court and it can interfere for the purpose of rectifying the error of law of the court
below. Revisional power comes under the aspect of the supervisory jurisdiction of the Court.

In an Appellate Court, there is a rehearing of questions of fact, questions of law and mixed
questions as well. Whereas in a Revisional jurisdiction, they exercise powers to ensure that the
lower Courts have exercised their power within their authority and ensure that the case has been
decided according to law. A revisional Court cannot substitute its view in place of the court of
first instance.

Hidayatullah, J (Hari Shanker v. Rao Girdhari Lal) - Revisional jurisdiction is regarding whether
there has been an assumption of jurisdiction when there isn’t one, or rejection of jurisdiction
when there is one, or an improper or illegal exercise of jurisdiction. Essentially, revisional
jurisdiction deals with questions of jurisdiction and jurisdiction alone. The High Court just needs
to see if the decision is passed according to the law or not.
Person(s) who may Appeal

Going by the rule laid down in State of Punjab v. Amar Singh (1974), the usual rule is that only
a party to a suit adversely affected by the decree or any of his representatives-in-interest may file
an appeal. However, those persons who are bound by the decree, aggrieved by it or prejudicially
affected by it can with the leave of the Court prefer an appeal against the said decree. Even a
guardian appointed by a court in a suit by or against a minor can prefer an appeal.

An aggrieved person is one who has a genuine grievance with the decree because it affects his
interests (economic or otherwise).

Circumstances in which one may not Appeal

In cases where the parties have bound themselves by a legal agreement, which stipulates that the
parties have settled the dispute [consent decree as under Section 96(3) of the CPC] or say agreed
to not appeal or waived their right to appeal, then neither of the parties can go back on their
obligations since this will be enforceable before the Court.

Consent Decrees - Once the decree is shown to have been passed with the consent of the
parties. Section 96(3) becomes operative and binds them. It creates an estoppel between the
parties as a judgment on the contest.

Ex-Parte Decrees

By operation of Section 96(2), a person can prefer an appeal against an order passed ex parte as
well. Moreover they would also have the remedy to set aside the ex parte decree and the former
would not bar the latter and vice-versa.
Monetary Limits on Appeal - An Appeal would not lie against the decree if the subject matter
of that decree does not exceed Rs. 10,000/- as per Section 96(4) of the CPC.

Limitation Period: As per Article 116, an appeal against a decree or order can be filed in a High
Court within 90 days and in any other court within 30 days from the date of the decree or order
appealed against.

Requirements of an Appeal [Order XLI Rule 1(1)]

(1) Memorandum of Appeal - As per Rule 1(2), it shall concisely set forth and under
distinct heads the grounds for objecting against the original decree without any argument
or narrative.

Rule 2 precludes the appellant from urging, except with the leave of the court, any
grounds of objection not set forth in the memorandum of appeal; but the Appellate
Court, in deciding the appeal, shall not be confined to the grounds of objections set
forth in the memorandum of appeal or taken by leave of the Court under this rule.
A memorandum of appeal should be prepared after carefully considering (i) the
pleadings; {it) the issues; {Hi) the findings thereon; {iv) the judgement; and {v) the
decree.

As per Rule 3, if the memorandum is not drawn up in the prescribed manner, then the
Court can reject it or return it to the Appellant for amendment within time prescribed by
the Court.

For the purposes of Court fee, jurisdictional issues, the Appellant must put a valuation in
appeal.

(2) Certified copy of the judgement

(3) signed by the party or his pleader
(4) Presented to Court or such authorised officer

Presentation of Appeal

Rule 9 states that the court from whose decree an appeal lies shall entertain the memorandum of
appeal, shall make an endorsement thereon and shall register the appeal in register of appeal.

Under Rule 10(1) the appellate court may at its discretion require the appellant to furnish
security for the costs of appeal or of the suit or of both. Under 10(2), where such security is not
furnished within such time as the Court orders, the Court shall reject the appeal.

Condonation of Delay

As per Rule 3A(1) when an appeal is presented after the expiry of the period of limitation
specified therefore, it shall be accompanied by an application supported by affidavit setting forth
the facts on which the appellant relies to satisfy the Court that he had sufficient cause for not
preferring the appeal within such period.

As observed by the Supreme Court in State of M.P. v. Pradeep Kumar, the object of this
provision is twofold; firstly, to inform the appellant that the delayed appeal will not be entertained
unless it is accompanied by an application explaining the delay; and secondly, to communicate to
the respondent that it may not be necessary for him to get ready on merits as the court has to
first deal with an application for condonation of the delay as a condition precedent. The
provision is, however, directory and not mandatory. If the memorandum of appeal is filed
without an accompanying application for condonation of delay, the consequence is not
necessarily fatal. The defect is curable.

The effort of the court should not be one finding means to pull down the shutters of
adjudicatory jurisdiction before a party who seeks justice on account of any mistake committed
by him, but to see whether it is possible to entertain his grievance if it is genuine.

However, gross negligence on part of the Appellant which caused the delay, will not be
condoned.

Stay of Proceedings

As per Rule 5(1), merely because a person has preferred an appeal against a decree does not
mean that the operation of the decree is immediately stayed. Rather the appellate Court needs to
order the stay of the proceedings including execution of the decree for sufficient cause.

Fo the Court to order the stay of the execution of the decree passed by the lower Court, the
Appellate Court as per Rule 5(3) must be satisfied that:

(1) that substantial loss may result to the party applying for stay of execution unless the
order is made;
(2) that the application has been made without unreasonable delay; and
(3) that security has been given by the applicant for the due performance of such decree or
order as may ultimately be binding upon him. If the Appellant does not make the deposit
or furnish the security as specified in Rule 1(3) [money suits] then the Court shall not
grant a stay for the execution of the suit.

It is the right of the decree-holder to reap the fruits of his decree. Similarly, it is the right of the
judgment-debtor not merely to get barren success in case his appeal is allowed by the appellate
court. This rule thus strikes a just and reasonable balance between these two opposing rights.

Explanation to Rule 5(1) clarifies that the order of stay becomes effective from the date of
communication to the court of first instance and not prior thereto.

Rule 6(1): Where an order has been made for the execution of a decree from which an appeal is
pending, on sufficient cause being shown by the appellant, the court which passed the decree
shall take security from the decree-holder for the restitution of any property which may be or has
been taken in execution and for due performance of the decree or order of the appellate court. If
such an application is made to the appellate court, it may direct the trial court to take such
security.

Where an order for sale of immovable property in execution of a decree has been passed and the
appeal has been pending against such decree, on an application being made by the
judgment-debtor, the court must stay the sale of immovable property on giving security or
otherwise as it thinks fit [Rule 11(1)]

Summary Dismissals [Rule 11-11A]

Rule 11 embodies a general principle that whenever an appeal is preferred, the appellate court is
entitled, after hearing the appellant or his advocate, to reject the appeal summarily if prima facie
there is no substance in it. The word may shows that the court has discretion in the matter and is
not bound to dismiss the appeal for default of appearance. The court may adjourn the hearing of
the appeal to a future date or even admit it.

Where an appeal is dismissed for default, it may be restored if it is proved that the appellant was
prevented by any sufficient cause from appearing when the appeal was called on for hearing
[Rule 19].

U.P. Avas Evam Vikas Parishad v. Sheo Narain Kushwaha (2011 SC): The Court observed
that Order 41, Rule 11 of CPC enables an appellate court to dismiss an appeal at a preliminary
hearing without calling for record of the trial court and without issuing notice to the respondent,
if it is satisfied that the appeal has no merit.

It, however, does not state that such dismissal can be without recording reasons. A High Court
can not dismiss a first appeal by one-line order ("Appeal is dismissed").

As per Rule 11(4), where the appellate court which dismisses an appeal summarily is other than a
High Court, it must record reasons for doing so.

As per Dipo v. Wassan Singh, once an appeal is admitted, the court cannot dismiss it on
technical grounds or without hearing the appellant.

Similarly, an appeal cannot be admitted partly. It can be admitted or dismissed wholly.

Procedure at Hearing [Rules 16-21]

As per Rule 16(1), once the date of hearing is fixed, then the Appellant can appear before the
Court in support of the appeal, and if the appeal is not dismissed at once, then the Court can call
upon the Respondent for hearing against the Appeal and the appellant shall be entitled to reply
to the same as provided for under Rule 16(2).
If the Appellant does not show up on the date fixed for the hearing, then the appeal can be
dismissed by the Appellate Court under Rule 17(1). But the Court cannot dismiss the Appeal on
merits as per the Explanation to Rule 17(1).

Where the appellant appears and the respondent does not appear when the appeal is called on
for hearing, the appeal shall be heard ex parte as per Rule 17(2).

Consequence of Ex-parte without Respondent: As per Rule 21, where an appeal is heard ex
parte and judgment is pronounced against the respondent, he may apply to the Appellate Court
to re-hear the appeal: and, if he satisfies the Court that the notice was not duly served or that he
was prevented by sufficient cause from appearing when the appeal was called on for hearing, the
Court shall re-hear the appeal on such terms as to costs or otherwise as it thinks fit to impose
upon him

Where the appeal has been dismissed for default or for non-payment of process fees, the
appellant may apply to the appellate court for the restoration of the appeal. On sufficient cause
being shown, the appellate court shall restore the appeal on such terms as to costs or otherwise
as it thinks fit. [Rule 19].
Cross Objections

Order 41 Rule 22 is a special provision permitting the respondent who has not filed an appeal
against the decree to object to the said decree by filing cross-objections in the appeal filed by the
opposite party. It is at the volition of the Respondent, it's not imperative or mandatory.

Courses of Action that can be taken in cases of decrees which are partly decided towards either
party:
1. Cross Appeal - Appeal against the part decided against you. There can be 2 appeals
against the same decree by the Appellant and the Defendant
2. Cross Objection - Even though you are not preferring an appeal against the part
decided against you, you can take objections towards the same.
3. Support the Decree - Support the decree on grounds decided in your favour and even
not in your favour.

The appeal is by the appellant against a respondent, the cross-objection must be an objection by
a respondent against the appellant.

Where the respondent has filed cross-objections, even if the original appeal is withdrawn or
dismissed for default, they will be heard and decided on merits. But where the Appeal is
dismissed as time-barred or as abated or non-maintainable then the cross-objections cannot be
heard on the merits since they are dependent on the admissibility of the appeal.
Who can file a cross objection

As per Rule 22(1) and the Explanation to the same, a Respondent can file a cross objection
when:
- He could have preferred an appeal against any part of the decree OR
- He is aggrieved by a finding of the Court even though the suit was decreed in his favour.

Under Rule 22 now, a party to a suit who has succeeded and whose favour, a decree is passed by
the court cannot file an appeal against any "finding" recorded against him, but if the other side
prefers an appeal against the decree, he may file cross-objection against the "finding" of the
lower court notwithstanding that the ultimate decision or decree may be partly or wholly in his
favour.

Ordinarily, cross-objections may be filed only against the appellant. In exceptional cases,
however, one respondent may file cross-objections against the other respondents - Panna Lal v.
State of Bombay.

Ex: Where the relief sought against the appellant in cross-objections is intermixed with the relief
granted to the other respondents in such a way that the relief against the appellant cannot be
granted without the question being reopened between the objecting respondent and other
respondents, cross-objections by one respondent against the other respondents may be allowed.

CANNOT BE MADE AGAINST A PARTY NOT A PART OF THE APPEAL

Time Limit for filing Cross Objections

As per Rule 22(1), the Respondent needs to file the Cross-Objections within 1 month from the
date of service of notice of the day fixed for hearing or within the time prescribed by the
Appellate Court.

No cross-objections, hence, can be filed if no appeal is filed by the appellant or an appeal is filed
but has not been admitted. Mere posting of preliminary hearing of an appeal is not enough.

Form of Filing Cross-Objections

As per Rule 22(2), such cross-objection shall be in the form of a memorandum, and the
provisions of rule 1, so far as they relate to the form and contents of the memorandum of
appeal, shall apply thereto. As per Rule 22(5), the provisions relating to appeals by indigent
persons shall, so far as they can be made applicable, apply to an objection under this rule

Disposal of Appeal and Cross-Objections

The court should decide and dispose of appeal and cross-objections together by one judgment
and such decision should be incorporated in one decree. This approach seeks to avoid
contradictory and inconsistent decisions on the same questions in one and the same suit.
 Powers of Appellate Court

a. Power to decide a case finally

Section 107(1)(a) r/w Order XLI Rule 24, provides that where the evidence upon the record is
sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after
resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of
the Court from whose decree the appeal is preferred has proceeded wholly upon some ground
other than that on which the Appellate Court proceeds.

Object: As far as possible, try to dispose of the case with the evidence on record to close the
curtain on the litigation between the parties.

b. Power to Remand
Rule 23 of Order 41 of the Code enacts that where the trial court has decided the suit on a
preliminary point without recording findings on other issues and the appellate court reverses the
decree so passed, it may send back the case to the trial court to decide other issues and
determine the suit. This is called remand.

By passing an order of remand, an appellate court directs the lower court to reopen and retry the
case. On remand, the trial court will readmit the suit under its original number in the register of
civil suits and will proceed to determine it as per the directions issued by the appellate court.

Conditions for Remand:

(i) Suit must be disposed of by the Trial Court on a preliminary point: According to the
Madras High Court’s ruling in Veetil Raman v. C. Krishnan Nambudirpad, a preliminary point
is one on which once ruled is sufficient to dispose of the suit even without determining the other
points in the dispute between the parties. Ex: Suit dismissed on grounds of limitation, res
judicata, maintainability, etc.

(ii) Decree must have been reversed: Only when the decision of the Trial Court is reversed on
appeal can the Appellate Court remand the case back for reconsideration.

Even if the lower Court has misread evidence, or facts, or has even ignored evidence, acted
contrary to law, insufficient materials to reach the conclusion reached by the Court, or an
unsatisfactory decision, CANNOT be grounds for remand IF the Appellate Court DOES NOT
reverse the decree of the lower Court [Sunder Singh v. Narain Singh (1969 SC)].

When an appellate court remands a case setting aside findings of the lower court, only those
findings can be said to have been set aside and not all the findings recorded by the trial court
[Mohan Lal v. Anandibai]. Once the case is remanded back to the Lower Court, the latter is
bound by the directions of the higher Court and it cannot refuse to act under those directions as
per Shantilal v. Gujarat Electricity Board (1971 SC).
The Court would also have the power to remand the case back to the lower Court even if the
lower Court has disposed of the case on a point other than the preliminary point, but again the
decree of the lower court has to be reversed before sending it back for remand as per Rule 23A.

An order of remand reverses the decision of the lower court and reopens the case for retrial by
the lower court except in regard to the matters decided by the appellate court.

As per Section 105(2) of the Code, if the party aggrieved by an order of remand does not
appeal therefrom, he cannot subsequently question its correctness under the inherent powers of
the court under Section 151 of the Code.

Note: An order for remand is one that is final and cannot be reconsidered by the Court except
on review.

(c) Power to Frame issues and refer them to Trial

As per Rule 25, where the Trial Court:

- omitted to frame
- or try any issue
- or to determine any question of fact which is essential to the reach the right decision
upon merits

The Appellate Court can frame the issues to that extent and refer them to the lower Court for
trial and direct them to take additional evidence if necessary. The lower court shall try such issues
and shall return the evidence and the findings within the time fixed by the appellate court.

On the Trial of the suit on such directions, as per Rule 26, the findings and evidence recorded by
the Court in this regard become a part of the record. Either of the parties can file objections
before the Appellate Court as to any of the findings of the lower Court on those issues.

Nature of the decision rendered by higher Court in ordering the framing of issues and referring
to Trial is an INTERLOCUTORY ORDER which is OPEN FOR RECONSIDERATION
by the Court which passed it.

(d) Power to take additional evidence

Rule 27(1) - —(1) The parties to an appeal shall not be entitled to produce additional evidence,
whether oral or documentary, in the Appellate Court. But if —

(a) the Court from whose decree the appeal is preferred has refused to admit evidence
which ought to have been admitted, or - The expression ought to have been admitted means
should be admitted in the exercise of sound discretion. The appellate court, therefore, before
admitting additional evidence must be satisfied that the trial court was unjustified in refusing to
admit such evidence.
[(aa) the party seeking to produce additional evidence, establishes that notwithstanding the
exercise of due diligence, such evidence was not within his knowledge or could not, after the
exercise of due diligence, be produced by him at the time when the decree appealed against was
passed, or]

(b) the Appellate Court requires any document to be produced or any witness to be examined to
enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may
allow such evidence or document to be produced, or witness to be examined -

"The legitimate occasion for the application of the present rule is when, on examining the
evidence as it stands, some inherent lacuna or defect becomes apparent, not where a discovery is
made outside the court of such evidence and the application is made to import it.

But a matter cannot be remanded for allowing a party to adduce additional evidence when such
evidence was available and yet not produced in the lower court [M. Ayisha v. State of Kerala].

Real Test as per Arjan Singh v. Kartar Singh is whether the appellate court would be able to to
pronounce judgment on the material before it without taking into consideration the additional
evidence sought to be adduced. Rather, the mere difficulty in reaching a decision is NOT a
sufficient cause for admitting additional evidence.

Additional evidence should NOT be admitted for the purpose of rendering the decision in
a particular way since this provision is not to be misused to patch up lacunae in the party’s case
before the lower court.

“Substantial cause” must be liberally construed to advance the cause of justice by the Court.

(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court
shall record the reason for its admission.

General rule as codified under Rule 27(1), is that Appellate Court should decide Appeal on the
basis of the evidence produced before the trial Court and should ideally not allow or ask for
additional evidence for the purpose of disposal.

Object: Party asking for admission of additional evidence should be able to establish the
necessity to determine the dispute for and also as to why it could not be produced before the
lower Court with the best efforts of the party before the lower Court itself [N. Kamalam v.
Ayyasamy (2001 SC)].

Once the additional evidence is allowed to be produced, then the Appellate Court can take the
evidence itself, or direct the lower Court from which the Appeal has been referred to take the
evidence and send it to the Appellate Court as provided under Rule 28.
(e) Power to Modify Decree

Rule 33: The Appellate Court shall have power to pass any decree and make any order which
ought to have been passed or made and to pass or make such further or other decree or order as
the case may require, and this power may be exercised by the Court notwithstanding that the
appeal is as to part only of the decree and may be exercised in favour of all or any of the
respondents or parties, although such respondents or parties may not have filed any appeal or
objection [and may, where there have been decrees in cross-suits or where two or more decrees
are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may
not have been filed against such decrees]

Rule 33 of Order 41 empowers an appellate court to make whatever order it thinks fit, not only
as between the appellant and the respondent but also as between one respondent and another
respondent. It empowers an appellate court not only to give or refuse relief to the appellant by
allowing or dismissing the appeal, but also to give such other relief to any of the respondents as
the case may require.

Object: The underlying object of Rule 33 is to enable the appellate court to do full and complete
justice between the parties.

Panna Lal v. State of Bombay: The provisions of Rule 33 dealing with the power of the
appellate court to grant relief to parties to a suit who have not appealed or filed cross objections,
on the other hand, enable the court to make any order as the case may require to meet the ends
of justice not only between the appellant and respondent but also between a respondent and
co-respondent.

If an objection cannot be urged under Rule 22 against a co-respondent, Rule 33 could take over
and come to the rescue of the objector.

The sweep of the power under Rule 33 is wide enough to determine any question, not only
between an appellant and respondent, but also between a respondent and co-respondents. The
only constraint on the power of the court is that the parties before the lower court should also
be there before the appellate court.

Conditions for invocation of Rule 33:

- The parties before the lower court must also be there before the appellate court
- The question raised must have properly arisen out of the judgment of the lower court.

Constraint on Power: The rule does not confer unrestricted right to reopen decrees which have
become final merely because the appellate court does not agree with the opinion of the trial
court [Nirmala Bala Ghose v. Balai Chand Ghose (1998 SC)]

(f) Other Powers

As per Section 107(2) of the Code, the Appellate Court has the same powers as an original
Court. This provision is based on the general principle that an appeal is a continuation of a suit
and therefore, an appellate court can do, while the appeal is pending, what the original court
could have done while the suit is pending.

Additional Powers given to Appellate Court [Ramesh Kumar v. Kesho Ram (1992 SC)]
- reappreciate the evidence,
- to add, transpose or substitute the parties,
- to permit the withdrawal of proceedings,
- to return a plaint or memorandum of appeal for presentation to the proper court,
- to allow amendments in pleadings,
- to take notice of subsequent events,
- to take into consideration a change in law and to apply the existing or changed law,
- to order restitution, to enlarge time for doing certain acts, etc.

Difference between Rule 22 and Rule 33:

Generally, cross-objections under Rule 22 can be directed only against the appellant and only in
exceptional cases can they be filed by one respondent against the other respondent. The
provisions of Rule 33 dealing with the power of the appellate court to grant relief to parties to a
suit who have not appealed or filed cross objections, on the other hand, enable the court to make
any order as the case may require to meet the ends of justice not only between the appellant and
respondent but also between a respondent and co-respondent.

Duties of Appellate Court

(a) Duty to decide appeal finally-

It is the duty of the appellate court to decide an appeal in accordance with the law after
considering the evidence adduced, as a whole.

(b) Duty not to interfere with decree for technical errors-

S. 99 CPC directs that a decree that is correct on merits and is within the court’s jurisdiction
should not be upset by mere technical errors.

(c) Duty to re appreciate evidence-

Since it is seen as a continuation of the suit, the appellate court can re appreciate evidence, both
documentary or oral. It must deal with the reasons provided for the non-acceptance of any
testimony at the trial court, before proceeding with it. As per Madhusudan Das v. Narayanibai-
there are three requisites which must be present before reversing a finding of fact by the trial
court:
1) It applied its mind to the reasons given by the trial court;
2) It had no advantage of seeing and hearing the witness;
3) It records cogent and convincing reasons for disagreeing with the trial court.

Further, the court held that when there is a conflict of oral evidence on any matter in issue and
its resolution turns upon the credibility of the witnesses, the general rule is that the appellate
court should permit the findings of fact rendered by the trial court to prevail unless it clearly
appears that some special feature about the evidence of a particular witness has escaped the notice of
the trial court or there is a sufficient balance of improbability to displace its opinion as to where the
credibility lies.

(d) Duty to record reasons-

This is mandatory for appellate courts other than a High Court. Where the High Court finds
Trial Court judgement to be unsatisfactory and sets aside the judgment, it ought to carefully
examine the facts and law and give cogent reasons for setting aside the judgment. As per State of
Punjab v. Jagdev Singh, the final order the appellate court has to pass must not be passed until
a reasoned judgment is ready for pronouncement. This rule would not strictly apply to the
Supreme Court, as its judgment is not subject to further appeal, and its reasoning would not be
further challenged (State of Punjab v. Surinder Kumar). However, it is desirable to record the
reasons.

(e) Other duties- An appeal can be admitted or dismissed as a whole. It cannot be admitted
partly. Once an appeal is admitted, it cannot be disregarded on technical grounds.

JUDGMENT: SECTION 98, RULES 30-34

After hearing the parties or their pleaders, the appellate court shall pronounce the judgment in
open court, either at once or on some future date after giving notice to the parties or their
pleaders. The judgment shall be in writing and must state:
i) the points for determination
ii) the decision therein
iii) the reasons for the decision
iv) where the appeal is allowed and the decree of the lower court is reversed or varied, the relief
to which the appellant is entitled.

DECREE: RULES 35-37

The decree of an appellate court shall contain (i) the date and the day on which the judgment
was pronounced; (ii) number of the appeal, names and description of the parties and a clear
specification of the relief granted or other adjudication made; (iii) the costs of the appeal and of
the suit and by whom they are to be paid; and (iv) the date and signature of the judge or judges
who passed it.
LETTERS PATENT APPEAL:

The Code of Civil Procedure makes no provision for an appeal within the High Court.
Therefore, the question whether an appeal would lie against an order passed by a Single Judge to
a Division Bench of the same court would depend upon the provisions of the Letters Patent of
the High Court concerned.

Under the relevant clause of the Letters Patent of the Chartered High Courts, from a "judgment"
of a Single judge of the High Court, an appeal lies to the Division Bench of that High Court
provided that such an appeal is not barred by any statute (e.g. Section 100A of the Code) and
provided that the other conditions are satisfied. Such an appeal can be filed within 30 days from
the date of the order passed by the Single Judge. The procedure laid down in Order XLI applies
to Letters Patent Appeals also.

APPEAL TO SUPREME COURT:

Sections 109 and 112 provide for appeals to the Supreme Court in certain circumstances. Order
XLV prescribes procedure for such appeals. These provisions, however, have to be read along
with the relevant provisions of the Constitution of India.

Second Appeals

Section 100 —(1) Save as otherwise expressly provided in the body of this Code or by any other
law for the time being in force, an appeal shall lie to the High Court from every decree passed in
appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case
involves a substantial question of law. [State Bank of India v. SN Goyal(2008 SC)]

Mandatory Nature of Section 100 - casts a duty on the court not to admit the appeals which
do not involve substantial questions of law for such an appeal is not provided for. [Sonubai
Yeshwant v. Bala Govinda].

(2) An appeal may lie under this section from an appellate decree passed ex parte.

(3) In an appeal under this section, the memorandum of appeal shall precisely state the
substantial question of law involved in the appeal.

(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it
shall formulate that question.

(5) The appeal shall be heard on the question so formulated and the respondent shall, at the
hearing of the appeal, be allowed to argue that the case does not involve such question:
Provided that nothing in this subsection shall be deemed to take away or abridge the power of the
Court to hear, for reasons to be recorded, the appeal on any other substantial question of law,
not formulated by it, if it is satisfied that the case involves such question.
The appellant has to precisely state in the memorandum of appeal the substantial question of law
involved in the appeal. Where the High Court is satisfied that a substantial question of law is
involved in the case, it shall formulate such a question.

But the High Court has power to hear the appeal on any other substantial question of law, not
formulated by it, if it is satisfied that the case involves such a question.

Qualification of the phrase “Substantial question of law” -

In Chunilal V. Mehta v. Century Spinning and Manufacturing Co. Ltd, the Supreme Court
observed that the real test for determining a substantial question of law would be:

- Whether it is of general public importance

- or whether it directly and substantially affects the rights of the parties and, if so, whether
it is either an open question in the sense that it is not finally settled by this court or by
the Privy Council or by the Federal Court or is not free from difficulty or calls for
discussion of alternative views.

It can thus be said that when a question is fairly arguable, or where there is room for a different
opinion, or where an alternative view is equally possible, or where the point is not finally
settled, or not free from doubt, it can be said that the question would be a "substantial question
of law".

However, the Law Commission in its 54th Report observed that a substantial question of law
need not necessarily be a question of public importance.

Ratanlal Bansilal v. Kishorilal Goenka (1993 Calcutta HC)

- Facts found upon such misconduct of the proceedings and misapplication of the procedure
with regard to evidence will necessarily be a question of law touching the legality of inference
on proved facts.
- If the law is settled but is not applied to a set of facts despite the finding warranting its
application, it is not perceivable how the legislature could conceive of barring the High Court
from setting right the erroneous application [Hero Vinoth v. Seshammal].

Pankaj Bhargava v. Mohinder Nath (1991 SC): If a question of law has already been settled by
the highest court, that question, however important and difficult it may have been regarded in
the past and however large may be its effect on any of the parties, would not be regarded as a
substantial question of law.
Power of HC to decide on a question of fact

Section 103: —In any second appeal, the High Court may, if the evidence on the record is
sufficient, determine any issue necessary for the disposal of the appeal—
(a) which has not been determined by the lower Appellate Court or both by the Court of first
instance and the lower Appellate Court, or

(b) which has been wrongly determined by such Court or Courts by reason of a decision on such
question of law as is referred to in section 100.

K Nagarajappa v. H Narasimha Reddy (2021 SC): It introduced 2 caveats which would allow
the High Court to consider a factual review. Firstly, factual findings need to be “palpably
perverse or outrage the conscience of the Court” i.e., flies on the face of the logic of the case
and Secondly, where the High Court can determine factual issues under Section 103 of the CPC
if they are undetermined or erroneously determined by the lower courts.

Madamanchi Ramappa and Anr. v. Muthalur Bojjappa (1963 SC): The Supreme Court opined
that interferences in findings of lower courts by the High Court on grounds of inadequacy or
insufficiency of evidence to sustain a fact was a misconception of the true legal position under
Section 100 of the CPC.

Ramaswamy Kalingaryar v. Mathayan Padayachi (1992 SC): The Supreme Court, while
restoring the decree of the trial court, categorically held that the High Court possessed no
jurisdiction to re-examine factual findings of the lower courts or reassess them without finding
any infirmity in it.

Municipal Committee Hoshiarpur v. PSEB (2011 SC): Instances of perversity in fact finding -

(1) findings of fact derived by ignoring or excluding relevant material,

(2) finding outrageously defies logic,
(3) evidence marred by procedural irregularities,
(4) findings failing to fulfill the reasonable person standard,
(5) findings stand on wrong test/basis is in conjecture/assumptions