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Civil Procedure Code Question & Answers RK

Code of civil procedure (University of Mumbai)

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Mumbai University
3 Years LLB- Semester V (November 2023),
Civil Procedure Code & Limitation Act.
RK- Questions & Answers

Marks Weightage
Civil Procedure Code (85%)
Indian Limitation Act (15%)

1) What is affidavit?
Ans) The expression ‘affidavit’ has not been defined in the Code, it has
been commonly understood to mean ‘a sworn statement in writing made
especially under oath or on affirmation before an authorised officer or
Magistrate’ (M. Veerabhadra Rao v. Tek Chand, AIR 1985 SC 28).
Simply, an affidavit is a declaration of facts, made in writing and sworn
before a person having authority to administer oath. Every affidavit
should be drawn up in the first person and should contain only facts
and not inferences.

2) What are essentials of Affidavit?

Ans) The essential attributes of an affidavit are:
➢ It must be a declaration made by a person;
➢ It must relate to facts;
➢ It must be in writing;
➢ It must be in the first person; and
➢ It must have been sworn or affirmed before a Magistrate or any
other authorised officer.

3) What is a Decree?
Ans) In a civil suit several facts might be alleged and the court may
be required to rule on several claims. In simple terms, a decree is the
ruling of the court regarding the claims of the parties of the suit. For
example, in a suit between A and B, A may claim that a particular
property P belongs A. After hearing all the arguments, the court will
rule in the favor of either A or B. The final decision of the court
regarding this claim i.e. whether the property belongs to A or B, is a
decree.

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As per Section 2(2), a decree is 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. It can be final or
preliminary.

4) What is Mesne Profits?

Ans) Mesne Profits is the profits which the person in wrongful
possession actually received or might with ordinary diligence have
received from the property, together with interest on such profits. It
is not what the original Claimant loses by his/her exclusion from the
property.

5) Who is Judgement Debtor?

Ans) A person who is liable to pay a debt or damages to the judgment
creditor in accordance with a judgment entered by a court against him,
is called Judgment debtor. In simple terms, a person against whom a
judgment in respect of monetary award has been obtained, is regarded
as Judgment Debtor.

6) Who is a Judge?
Ans) As per S/19 of CPC, the word “Judge” denotes not only every
person who is officially designated as a Judge, but also every person,
who is empowered by law to give a definitive judgment in any legal
proceeding (civil or criminal), or a judgment which, if not appealed
against, would be definitive, or a judgment which, if confirmed by some
other authority, would be definitive, or who is one of a body of persons,
which body of persons is empowered by law to give such a judgment.
Examples:
A Collector exercising jurisdiction in a suit under Act 10 of 1859 (Bengal
Rent Act), is a Judge.
A Magistrate exercising jurisdiction in respect of a charge on which he
has power to sentence to fine or imprisonment, with or without appeal,
is a Judge.

7) What is the meaning of Order under CPC?

Ans) Under Section 2(14) of the CPC, an order is the formal expression
of any decision of a civil court which is not a decree.

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8) What are pleadings?

Ans) Pleading, in law, is a written presentation by a litigant in a lawsuit
setting forth the facts upon which he claims legal relief or challenges
the claims of his opponent. A pleading includes claims and counterclaims
but not the evidence by which the litigant intends to prove his case.

9) What is an “Issue” in CPC?

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

10) What is Substantive Law?

Ans) Substantive Law is a Statutory Law that defines and determines
the rights and obligations of the citizens to be protected by law;
defines the crime or wrong and also their remedies; determines the
facts that constitute a wrong -i.e. the subject-matter of litigation in
the context of administration of justice.
The Substantive Law, defines the ‘remedy’ and the right; includes all
categories of Public and Private Law and also includes both Substantive
Civil and Criminal Law.

11) What is procedural law?

Ans) Procedural Law (or Adjective Law) deals with the enforcement of
law that is guided and regulated by the practice, procedure and
machinery. Procedural law functions as the means by which society
implements its substantive goals. Procedural law is derived from
constitutional law, Statutes enacted by legislature, law enforcement
agencies promulgating written regulations for their employees, which
may not have the force of law but their violation may result in internal
sanctions; and the rules and procedural guidelines laid down by the
Supreme Court etc.

12) What is res subjudice?

Ans) Sec.10 of CPC declares that no court should proceed with the
trial of any suit in which the matter in issue is directly and substantially
in issue in a previously instituted suit between the same parties and the

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Court before which the previously instituted suit is pending is competent

to grant the relief sought.
Subjudice in latin means 'under judgment'. It denotes that if a matter
or case is being considered by court or judge or when two or more
cases are filed between the same parties on the same subject matter,
the competent court has power to stay proceeding. This is also referred
to as stay of suit.

13) What is evasive denial?

Ans) Just denying facts, without specifically stating the reason or
without stating correct facts, is evasive denial. As per Rule 4, evasive
denial or denial that does not answer the substance does not qualify as
a denial.
For instance, if the defendant wants to deny the allegation of the
plaintiff that he had received a certain sum of money, he has to
expressly deny the receipt of the amount and also specifically state
the amount alleged. Evasive denial is taken as admission unless the
plaint is also vague and stated in general terms.

14) What is adjudication?

Ans) The CPC does not define the term “adjudication.” However, in
general parlance, it means a judicial decision or a formal judgement on
a disputed matter. It is the legal process in which the court resolves
a particular dispute brought forth for its perusal.

15) What is a suit?

Ans) The CPC defines a suit as a civil proceeding initiated by the
presentation of a plaint or a written statement before a court of law.

16) What is a written statement ?

Ans) The Code of Civil Procedure does not give a definition of a 'written
statement'. In general terms, it can be defined as the statement of
defence in writing, filed by the defendant, and it deals with every
material fact alleged by the plaintiff in the plaint. It is the pleading
of the defendant where he deals with the material fact alleged by the
plaintiff in his plaint and also elucidates any new fact favouring him or
taking legal objections against the plaintiff's claims in the plaint.

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17) What is Limitation?

Ans) A time period within which a right can be enforced in a Court of
Law is known as limitation period. The time period for various suits has
been provided in the schedule of the Limitation Act 1963.

18) What is meant by Execution of Decree?

Ans) The term “execution” has not been defined in the code. The
expression “execution” simply means the process for enforcing or giving
effect to the judgment of the court. The principles governing execution
of decree and orders are dealt with in Sections 36 to 74 and Order 21
of the Civil Procedure Code
Execution is the last stage of any civil litigation. There are three stages
in litigation - a. Institution of litigation, b. Adjudication of litigation,
c. Implementation of litigation. This implementation of litigation is also
known as Execution.

19) What is Foreign Judgment?

Ans) Section 2(6) of the Code of Civil Procedure, 1908 (CPC) defines a
foreign judgement as a judgement of a foreign court. A foreign court
is defined by Section 2(5) of the CPC as a court situated outside India
and not established or continued by the authority of the Central
Government.

20) What is Plaint?

Ans) Plaint is a legal document that contains the plaintiff's claim
presented before a civil court of competent jurisdiction. It is a pleading
of the plaintiff and the first step taken for the institution of a suit.
The main contents of plaint are:
a) Name of the court where the suit is initiated.
b) Name, place, & description of the plaintiff's residence.
c) Name, place, & description of the defendant's residence.
d) A statement of unsoundness of mind or minority in case the plaintiff
or the defendant belongs to either of the categories.
e) Facts which led to the cause of action and when it arose.
f) Facts which point out the jurisdiction of the court.
g) The plaintiff's claim for relief.
h) The amount allowed or relinquished by the plaintiff just in case.

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i) A statement containing the value of the subject matter of the suit

as admitted by the case

21) What is issue in CPC?

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

22) What are kinds of issues?

Ans) As per the Order 14 Rule 1(4) of the C.P.C. issues are of two
kinds:
Issues of fact
Issues of Law.

23) What is a “Commission” in CPC ?

Ans) Commission is instruction or role given by the Court to a person to
act on behalf of the Court and to do everything that the Court requires
to deliver full and complete justice. Such person who carries out the
commission is known as a Court Commissioner.
Under CPC, the Court which issues the commission can appoint the
commissioner. Section 75, provides that "the Court" can issue
commission provided the limitations and restrictions applicable.
Therefore, the Court who has to decide the suit can appoint the
commissioner.

24) What is abatement of suit?

Ans) The term abatement is not defined in CPC. In general sense,
premature ending of a suit before final adjudication is called abatement
of an action. In other words, termination of suit by operation of law
after the commencement of suit but before the completion of suit is
known as abatement.

25) Write note on suit by the minor?

Ans) Order 32 (Rules 1 to 16) of the CPC, 1908 deals with the “Suits
by or against minors and persons of unsound mind.” It specifically
prescribes the procedure for suits to be filed by or against minors or
persons of unsound mind.

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Rule 1 of Order 32 provides that every suit shall be instituted in the

name of the minor by the ‘next friend’ of the minor. The ‘next friend’
is any person who has attained majority and is in some way related to
the minor so as to ascertain his/her interests. He cannot compromise
the suit without leave of the court, he cannot retire without appointing
another person, he may be removed by the court for delay and
misconduct, remains on record upto minor attaining majority.

26) What is misjoinder of parties?

Ans) Misjoinder of parties means a joinder of a party who ought not to
have been joined either as a plaintiff or as a defendant. In other
words, it refers to impleading an unnecessary party. It may also refer
to a situation in which a plaintiff is impleaded as a defendant and vice-
versa (party wrongfully impleaded).

27) What is interpleader suit?

Ans) An interpleader suit is a legal action initiated by a person or entity
holding property, funds, or assets that are claimed by two or more
conflicting parties. An interpleader suit is filed when the party holding
the property has no interest in it, except for potential charges or costs
and seeks to avoid liability or multiple lawsuits. The provisions relating
to interpleader suit are given in order 35 section 88 of CPC.

Limitation Act
28) What is legal disability?
Ans) Legal Disability under Limitation Act refers to the lack of legal
capacity to perform an action due to insufficient physical and mental
abilities. It denotes the incapacity of a person to exercise all the legal
rights that an average person possesses.
Section 6 of the Act addresses situations where a person entitled to
initiate a suit or file an application for the execution of a decree is a
minor, insane or mentally disabled. It states that such a person can
file a suit or make an application once the disability ends, as specified
in the Act’s schedule. If a person is affected by multiple disabilities,
they can file a suit or make the application when both disabilities
cease.

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29) What is the effect of acknowledgement in writing?

Ans) As per Section 18 of limitation act, where, before the expiration
of the prescribed period for a suit or application in respect of any
property or right, an acknowledgement of liability in respect of such
property or right has been made in writing signed by the party against
whom such property or right is claimed, or by any person through whom
he derives his title or liability, a fresh period of limitation shall be
computed from the time when the acknowledgement was so signed.

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Short Notes

Q1 Effect of acknowledgement on period of limitation

Ans) The term limitation should be literarily interpreted as the term
itself states it’s meaning i.e. restriction or the rule or circumstances
which are limited. It means that the circumstance under which legal
remedy which can be obtained is barred by time as per the law. The
law of limitation specifically prescribes a particular time limit during
which an aggrieved party shall approach the court to receive the legal
remedy.
As per the law of limitation, no court shall have the jurisdiction to try
a suit, or entertain an application or appeal, if it is filed after the
prescribed period. This prescribed period has been specifically
highlighted under the schedule of the Limitation Act, 1963 with the
head “period of limitation”.
Section 18 of the Limitation Act, 1963 uses the term
'acknowledgement' to mean an admission of an existing liability in lieu
of which the period of limitation is extended. A perusal through section
18 of the Limitation Act indicates certain conditions to be fulfilled in
order to emphasize acknowledgement. They are
the acknowledgement of liability must be in writing.
That the acknowledgement of liability must be made before expiry of
limitation period for filing the suit. If limitation has already expired,
it would not revive under section 18 of the Limitation Act
That the acknowledgement of liability must be unqualified and must be
in unambiguous, clear terms.
It is to be noted that an acknowledgement of liability may be unilateral
or bilateral.
In case of Guarantee, acknowledgements by the principal-debtor also
keep the limitation saved against the surety. In any case, where the
surety has specifically empowered the principal-debtor to give consent
on behalf of the surety in respect of all matters concerning the debt,
the acknowledgement of liability given by the principal-debtor is binding
on the surety, even though he has not signed the acknowledgement.
E-mails acknowledging the debt constitute a valid and legal
acknowledgement of debt though not signed as required under Section
18 of the Limitation Act. If an acknowledgment is sent by an
'originator' to the 'addressee' by e-mail, without any intermediary, it

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amounts to electronic communication by e-mail which is an alternative

to the paper based method of communication and is legally recognized
by the Information Technology Act, 2000.
Balance sheets are an admission of indebtedness and sufficient
acknowledgment under the Indian Limitation Act. The limitation period
is calculated from the date it is signed. In the case of a company,
Section 215(i)(ii) of the Indian Companies Act, 1956 requires that every
balance sheet shall be signed on behalf of the Board of Directors by
the managing agent, secretaries and treasurers, manager or secretary,
if any, and by not less than two directors of the company one of whom
shall be a managing director where there is one. Section 133 (i) (ii) of
the Indian Companies Act, 1913 also provided that the balance sheet
should be signed by two directors or, when there were less than two
directors, by the sole director and by the manager or managing agent
(if any) of the company. Without such authentication, an admission of
liability in a balance sheet will not be authorised and will not amount to
an acknowledgment of liability within the meaning of Section 19 of the
Limitation Act, 1908.
Cheque given by a debtor to pay his dues is an acknowledgement, even
though the Cheque is dishonoured.
An acknowledgement of a payment made in the written statement in an
earlier suit operates as an acknowledgement within the meaning of
Section 18 of the Limitation Act.
An insufficiently stamped document which contains an admission of
liability can be relied upon only for the purpose of extending limitation
period.
Effects of acknowledgement of debt:
Where, before the expiration of the prescribed period for a suit of
application in respect of any property or right, an acknowledgement of
liability in respect of such property or right has been made in writing
signed by the party against whom such property or right is claimed, or
by any person through whom he derives his title of liability, a fresh
period of limitation shall be computed from the time when the
acknowledgement was so signed.

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Q2 Note on Pauper Suit or suit by indigent person?

Ans) 0rder 33 rules 1 to 16 of CPC provides for provisions relating to
filing of a suit by a Pauper subject to certain conditions.
A pauper is basically a person who has no property or a person with
nearly fewer means of living within the prescribed standard of the law
of a particular country. A person can be considered as a pauper when
he is not possessed of sufficient means to pay the court fee to institute
a suit. Where no such fee is prescribed, the person is a pauper when
his entire property is below Rs.1000/- value excluding his necessary
wearing apparel and of course the matter of the suit
If a person asserts in the court that he or she is a pauper and that
particular person mentioned above has no means to pay the court fees
than any appeal or suit will be admitted without any payment of court
fee in the court.

Q3 Appeal to Supreme Court

Ans) Supreme Court is the apex court in the country. Being at the top
of the pedestal it enjoys varied jurisdiction:
➢ Original jurisdiction- Acts as a guardian of the law.
➢ Appellate jurisdiction- Hear appeals from the lower court. It is also
the final court for appeals in the country.
➢ Writ jurisdiction- Issuing writs for the enforcement of Fundamental
Rights.
➢ Advisory jurisdiction- Supreme Court has the power to give advice
to the president on the important questions of law.
Supreme Court is the highest court of appeal in India. Appeals from
every court present in the country ultimately go to the Supreme Court,
if not settled at the lower courts. The appellate jurisdiction of the
Supreme Court is enshrined in Article 132 and 133 of the Indian
Constitution,1950 and Section 109 and 112 of the Civil Procedure
Code, 1908.
The appellate jurisdiction is one of the most important jurisdictions
exercised by the courts in the country. This jurisdiction enables a
person to approach the higher court in case he is not satisfied with the
judgment given by the lower courts. In the appellate jurisdiction, the
higher court is asked to review and revise the judgement given by the

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lower courts. This also helps to eradicate any misinterpretation of law

or misconstruction of facts, in the proceedings of the lower court.
Following are the conditions for appeal in the Supreme Court-
➢ When the judgement, decree or order passed by the High Court.
➢ When the issues in the case involve a substantial question of law.
➢ When the High Court deems it fit that case must be dealt with by
the Supreme Court only.
Appellate Jurisdiction of Supreme court is further divided into:
Criminal Matter:
An appeal can be filed against any judgment, final order or sentence
of a High Court in a criminal proceeding in the following situations:
➢ The concerned High Court has reversed an appeal by an order of
acquittal of an accused person and sentenced him to death,
imprisonment for life or imprisonment for a period of not less than
ten years.
➢ The High Court has withdrawn for trial before itself of any case
from any of its subordinate courts and in such case, the accused
has been convicted and sentenced to death or imprisonment for life
or not less than 10 years.
➢ The High Court certifies that the case is a fit one for an appeal to
the Supreme Court.
➢ A person convicted on a trial held by the High Court in its
extraordinary original criminal jurisdiction is also appealable.
➢ However, no appeal can be filed by a convicted person if the sentence
passed against him by the HC does not exceed the term of 6 months
or a fine not exceeding Rs. 1000 or both.
➢ The criminal appeal can be filed if the High Court disregarded or
misapplied the established principles of criminal law.
➢ No court fee is applicable in case of criminal appeal
Limitation Period
➢ If the certificate of fitness is granted by the High Court, then the
appeal must be made within 60 days of such grant of certificate,
otherwise, the appeal should be filed within 60 days of the final
order or judgement.
➢ Time spent on obtaining a copy of the judgment as order appealed
from or the time spent on obtaining the certificate and order
granting the certificate are excluded.

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➢ However, if sufficient cause is shown for the delay, then in such

cases the delay could be condoned.
Constitutional Matters:
The High Court under Article 132(1) grants a certificate to the party,
which permits it to file an appeal in the Supreme Court if the High
Court deems it fit that such case involves a substantial question of law.
The Supreme Court acts guardian of the constitution, hence all the
matter relating to important aspects of the constitution or if there is
a need to interpret the constitution, then the case should be referred
to the Supreme Court.
Civil Matters:
Article 133(1), states that the appeal against any order, judgement or
decree from any High Court present in the Indian territory would lie to
the Supreme Court if the High Court certifies it under Article134(A).
Special leave Petition:
Special leave petition (SLP) means that an individual takes special
permission to file an appeal against any verdict of the lower court. Thus
it is not an appeal but a petition filed for an appeal. So after an SLP
is filed, the Supreme Court may hear the matter and if it deems fit,
it may grant the ‘leave’ and convert that petition into an ‘appeal’. SLP
shall then become an Appeal and the Court will hear the matter and
pass judgment. It must be noted that appeal in the Supreme Court is
a matter of privilege and not a matter of right. It is only on the
Supreme Court, to decide whether it will grant or not grant the right
to appeal to a party.
This leave is granted when the case involves a substantial question of
law. Mere errors of fact, misinterpretation of evidence or facts are
not grounds of appeal before the Supreme Court. The Supreme Court
is only concerned if the law was correctly applied, whether the
interpretation of the law was in accordance with the settled principles
of law etc.
The Supreme Court can hold, reject or modify the earlier judgement,
it can also send the case back to the lower court for fresh proceedings
in accordance with the principles held by the Supreme Court.

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Q4 Impleader Suit?
An interpleader suit is a legal action initiated by a person or entity
holding property, funds, or assets that are claimed by two or more
conflicting parties. An interpleader suit is filed when the party holding
the property has no interest in it, except for potential charges or costs
and seeks to avoid liability or multiple lawsuits.
An interpleader suit is distinguished by the fact that the plaintiff is
not directly involved in the subject matter under contention. The
fundamental and most significant objective of an interpleader suit is to
resolve conflicting claims among rival defendants. This situation arises
when there is a disputed debt, capital, or other property solely between
the defendants. Essentially, an interpleader suit is initiated to
adjudicate a matter concerning a third party
Examples:
➢ Sanjeev has a 2 BHK flat in the co-operative colony. He has two
wives. Because of some diseases, he caused to die. After his death,
his wives claimed the property. The father of Sanjeev filed a suit
in the court to decide the actual owner of the property.
➢ Akhil has 2 crores fix deposit. He has two wives and both wives have
1 child. Both of them claim the money for their child maintenance.
The bank filed a suit in the court to know the order related to the
real owner of the money for the maintenance of the child.

Q5 Adverse possession?
Ans) A person who is the owner of a piece of land or any property has
the right to possess, preserve and manage the same at their discretion.
In other words, they are free to make any decision regarding the same.
However, many times when this property is decided to be given to some
other individual such as a tenant by the owner either on rent or on a
lease they might lose their right or title over their land in certain
exceptional circumstances. This might happen when the tenant
possesses the land for a period of more than 12 years without the
owner’s will or consent. Despite the property still being within the
ownership of the landlord, the law would favour the possessor in this
situation and not the owner.
Adverse possession essentially means when a tenant possesses the
property of the owner when they are not legally entitled to do the same
overtly. In such a situation, if they continue to hold the property

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unlawfully for more than 12 years and the owner, despite having the
knowledge of the same, doesn’t take any action over these years, they
would lose their right to claim the property by filing a suit in the court
of law upon the expiration of this term. As a result, the person in the
possession of the property will acquire a prescriptive title over the land
through adverse possession.
This concept is based on the legal maxim ‘vigilantibus non-dormientibus
subvenit lex’ which means that the law favours only the active citizens
and not those who are dormant or in other words, are not concerned
about their rights. This concept, at times, might be unfair to the lawful
owner of the property due to which it is subject to certain exceptions.
Yet, in such a situation, the landlords failed to enforce the rights
available to them. Hence, they shall not be allowed to reinforce the
same or re-enter their land after a long passage of time. The person
who possessed the land even if unlawfully has certain expectations due
to the long passage of time which is 12 years in which no action was
taken. It could prove to be unjust to the possessors if some action is
taken after so long when they have become accustomed (habituated) to
using that property.

Q6 Commission?
The provisions relating to commission are (Order 26 Rules 1 to 22)
Commission is instruction or role given by the Court to a person to act
on behalf of the Court and to do everything that the Court requires to
deliver full and complete justice. Such person who carries out the
commission is known as a Court commissioner. For example, whenever
the Court has to do a local investigation, a commissioner is appointed
who conducts the local investigation. Similarly, to record the evidence
of a witness who cannot come to the Court for evidence, the Court can
issue a commission for recording of such evidence.
Under CPC, the Court which issues the commission can appoint the
commissioner. Section 75, provides that "the Court" can issue
commission provided the limitations and restrictions applicable.
Therefore, the Court who has to decide the suit can appoint the
commissioner. Generally, there is a panel of commissioners which is
formed by the High Court in which advocates are selected who are
competent to carry out the commission issued by the Court.
The person appointed as commissioner should be independent, impartial,

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disinterested in the suit and the parties involved in it. Such a person
should have the requisite skills to carry out the commission.
Powers
➢ The Commission should discharge its functions as per the directions
of the Court.
➢ It may examine the parties or any witnesses or any other person
whom it deems fit.
➢ Call for and examine documents and other relevant things,
➢ Enter any place or buildings at reasonable times,
➢ Record objections to answer questions.

Q7 Jurisdiction of Courts?
Jurisdiction is defined as the limit of judicial authority or extent to
which a court of law can exercise its authority over suits, cases, appeals
etc.
Whenever the suit is made before the court the initial issue is to decide
whether the court has jurisdiction to deal with the matter. If the court
has all the three territorial, pecuniary or subject matter jurisdiction
then simply the court has the power to deal with any of the cases. If
the court does not have any of the jurisdiction then it will be recognised
as lack of jurisdiction and irregular exercise of jurisdiction. When the
court does not have jurisdiction to decide the case then such decision
will be regarded as void or voidable depending upon the circumstances.
The Civil Court has inherent jurisdiction in all types of civil matters as
per Section 9 of CPC unless the suit is expressly or impliedly barred.
Territorial Jurisdiction:
Territorial jurisdiction refers to the power of a court to inquire and
proceed with the trial of a matter that is presented before it, based
on the geographical location where the cause of action arose or where
the defendant resides or carries on business.
In India, the Civil Procedure Code, 1908 (CPC) provides the maximum
extent of jurisdiction to the civil courts. The jurisdiction of a court is
limited to the geographical boundaries and limits determined by the
government.
For instance, the District Judge has jurisdiction within his district,
while the High Court has jurisdiction over the territory of the state
within which it is situated. Territorial jurisdiction primarily applies to

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cases involving immovable property, cases pertaining to movable

property, and other additional cases.
Every civil suit in regard to recovery/partition/sale, mortgage or
redemption/determination of any right or claim/compensation for wrong
to immovable property or for recovery of movable property shall be
instituted in the court of law within whose local limits the property is
situated.
In case, the suit is directed to obtain relief or compensation in respect
to the property held by the defendant then, the suit may be instituted
either in the court within whose local limits the property is situated or
within whose jurisdiction the defendant resides or carries on business.
Section 20 of the CPC provides that for any suit, every plaintiff may
file a suit in the court of law within whose local limits the
defendant/opponent against whom claim arises voluntarily resides or
carries on his business or is gainfully employed. The section further
provides that the suit may also be filed in a court within whose local
limits the whole or part of the cause of action arose.
This is the basic principal of law that the suits are generally filed in a
court of law within whose jurisdiction the whole or a part of the cause
of action arises. Causes of action are the facts in regard to claim,
relief that gives the plaintiff the right to bring a legal action.
The CPC further provides in case of more than one defendant, the suit
can be instituted in any court within whose jurisdiction any of the
defendants resides or carries on business. A suit can be filed only after
obtaining leave of the court or by way of other defendants agreeing it.
The law also provides that in case, the property is situated within the
jurisdiction of more than one court then, the plaintiff may file the suit
in either of the court within whose jurisdiction any portion of the
property is situated.
Pecuniary jurisdiction
Pecuniary jurisdiction refers to the monetary limit up to which a court
can entertain a suit. In other words, it is the power of courts to decide
cases that are within certain monetary limits. The pecuniary jurisdiction
of courts in India is as follows:
➢ Junior Civil Judge’s Courts: Suits amounting up to Rs.3,00,000/- lie
before the Junior Civil Judge’s Courts.

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➢ Senior Civil Judge’s Courts: Suits over Rs.3,00,000/- and not

exceeding Rs. 15,00,000/- lie before the Senior Civil Judge’s
Courts.
➢ District Courts: Suits exceeding Rs. 15,00,000/- lie before District
Courts.
➢ High Courts: Suits over and above Rs. 20,00,000/- lie before High
Courts.
It’s important to note that the High Court has no pecuniary jurisdiction
and only appeal lies before it. The pecuniary jurisdiction is an important
aspect of the legal system as it helps in managing the caseload of
various courts, encourages efficiency, and aids in cost-effectiveness.

Q8 Doctrine of Res-judicta?
Ans) Res judicata is the Latin term for "a matter already judged", and
refers to the legal doctrine meant to bar continued litigation of cases
that have already been decided between the same parties.
The legal concept of Res-judicta arose as a method of preventing
injustice to the parties of a case supposedly finished as well as to avoid
unnecessary waste of resources in the court system. Res judicata does
not merely prevent future judgments from contradicting earlier ones,
but also prevents litigants from multiplying judgments, so a prevailing
plaintiff could not recover damages from the defendant twice for the
same injury
The doctrine of res judicata is based on three principles:
➢ no man should be vexed twice for the same cause;
➢ it is in the interest of the state that there should be an end to a
litigation;
➢ a judicial decision must be accepted as correct.

Q9 Reference, review, revision, appeal?

According to the Code of Civil Procedure, 1908, when a party is
aggrieved by the decree passed by the court, he can approach the
superior court by way of appeal, against the decree passed by the trial
court. Generally, under appeal, the whole dispute is re-heard by the
appellate court. But in cases where there are technical/procedurals
errors, the aggrieved party need not take the pain of approaching the
higher court for going through the hassle of contesting another suit
which is in the form of appeal. For the same purpose, the Code of Civil

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procedure has introduced the concepts called Reference, Review and

Revision under Sections 113, 114 & 115 respectively.
An application for Reference, Review and Revision can be filed in the
concerned courts as provided by the Code and the proceedings under
these applications do not deal with merits (facts or evidence) of the
case. They are solely based on technical grounds.
Reference:
Reference is dealt under Section 113 of the Code. It mentions that a
subordinate court can refer a doubt to the High court where the former
thinks that there should not be misinterpretation with regard to any
law. This is called a reference. No party to the suit has the right to
apply for reference. It is only the subordinate court which has the
power of reference suo-moto (on its own motion) when there is doubt
regarding the validity of any legal provision. For matters other than
the validity of legal provisions, the court is not bound to refer to the
High court. So, when the court feels that it needs clarification
regarding any matter which is pending, it can seek an opinion from the
High court to avoid the commission of errors while rendering a
judgement. If there is reasonable doubt regarding the question of law.
Subordinate courts can exercise the right of reference under following
circumstances:
a) A question as to the validity of any act, rule, regulation, ordinance,
etc., arises in the court where the suit is being entertained
b) The court is of the opinion that such act or any other provision of
law is invalid (“ultra vires” means “beyond the powers”) or
inoperative.
c) Such question on the provision of law is never before made invalid
either by the High court or Supreme court
d) It is pertinent for determining the validity of such provision of law
for disposal of the suit.
The object behind the provisions of Reference is to empower the
subordinate court to obtain the opinion of the High Court in non-
appealable cases when there is a question of law so that any commission
of error could be avoided which couldn’t be remedied later on. As held
in the case of Diwali Bai v. Sadashivdas, the reference must be made
before passing of the judgement of the case.

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Review:
Section 114 of Civil Procedure Code defines the provision of review. In
case of review, the party who is not happy or aggrieved with the order
of the court can file an application for review in the same court which
has passed the decree. This provision has been made so as to facilitate
the court to review their own decree or judgement and rectify the same
in case any error has been made while passing the judgement.
Order 47 of the CPC defines the procedure to be followed in case of
review. In the following situation, the application for review can be
filed by the parties:
a) The decree or judgement is appealable however, no appeal has been
preferred under the law.
b) In case of no provision for appeal has been mentioned in the law for
certain decree or judgement.
c) The Court of Small Causes has passed the decision.
The law defines certain grounds on which application for review can be
filed:
a) Where there are new discoveries of the facts, which were not in
knowledge or could not produce at the time of passing of decree due
to ignorance.
b) In case, the error is found on the face of the record and does not
require the argument of the entire case again. These errors are not
related to wrong decisions made by the court.
c) Any other case, in which case the delusion of the court can be
considered as sufficient ground.
Article 124 of Limitation Act provided that once the decree or order
is passed, parties shall file the application within 30 days from the
date of passing such decree. The decree or order which is passed after
review shall be final and binding to the parties. It is important to note
that the entertaining the application filed by parties for review is at
the discretion of the court. Court can either entertain or reject the
application. In case, the court does not find any sufficient ground to
entertain an application, it can reject the same.
Revision:
The High Court has been empowered with the revisional jurisdiction
under section 115 of the Code of Civil Procedure,1908. The object
behind empowering the High Court with revisional jurisdiction is to
prevent arbitrary illegal or irregular exercise of jurisdiction by the

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subordinate court. Under section 115 the High Court is empowered to

keep an eye on the proceedings of subordinate courts that the
proceedings are being conducted in accordance with the law, under its
jurisdiction for which it is bound for and in furtherance of justice.
But, the judges of the subordinate court have absolute jurisdiction to
decide a case and even when they have wrongfully decided a case, they
do not commit any “jurisdictional error”. With the power of revision,
the High Court can correct the jurisdictional error when committed by
the subordinate court. The provision of revision provides an opportunity
to the aggrieved party to get their non-appealable orders rectified.
The exercise of revisional jurisdiction is upon the discretion of the
court and the parties cannot claim it as a right. In the leading case
of Major. S.S. Khanna v. Brig. F.J. Dillion, it was held by the Supreme
Court that the court has to take into consideration several factors
before exercising the revisional jurisdiction. One of that considered is
the availability of an alternative remedy. When an alternative and
efficacious remedy is available to the aggrieved party, then the court
may not exercise its revisional power under section 115 of the Code.
According to article 131 of the Limitation Act, 1963 for a revision of
the decree or order, the limitation period is 90 days. The revision
application is required to be made before the High Court within the
limitation period.
Appeal:
An appeal is a remedial concept determined as an individual’s right to
seek justice against an unjust decree/order via referring it to a
Superior Court. Sections 96 to 99A; 107 to 108 & Order 41 of
the Code of Civil Procedure, 1908 deal with appeals from original
decrees known as First appeals.
It can be explained as “the complaint to a superior court for an injustice
done or error committed by an inferior one, whose judgment or decision
the Court above is called upon to correct or reverse. It is the removal
of a cause from a Court of inferior jurisdiction to one of superior
jurisdiction, for the purpose of obtaining a review and retrial”
Section 96 of the CPC provides that an aggrieved party to any decree,
which was passed by a Court while exercising its original jurisdiction, is
conferred with at least one right to appeal to a higher authority
designated for this purpose, unless the provisions of any statute make
an exception for it.

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Q10 Suit by or against minor and person of unsound mind?

➢ Order 32 (Rules 1 to 16) of the Code of Civil Procedure (CPC), 1908
deals with the “Suits by or against minors and persons of unsound
mind.” It specifically prescribes the procedure for suits to be filed
by or against minors or persons of unsound mind.
➢ In the early systems of law, it was generally assumed that minors
and lunatics had no authority to institute a suit on the ground that
such persons lacked reason and understanding to participate in the
proceedings, but gradually it was realised that there is a need for
such laws for the protection of the interests of such persons. Order
32 has been specially enacted to protect the interests of minors and
persons of unsound mind to ensure that they are equally represented
in civil suits or proceedings.
Who is minor
➢ As per Section 3 of the Majority Act of 1875, a minor is a person
who has not attained a majority, that is, who has not attained the
age of 18 years. But in the case of a minor for whose person or
property a guardian is appointed by the court or whose property is
under the superintendence of the court of wards, the age of
attaining majority is 21 years.
Who is Person of unsound mind
➢ As per Section 12 of the Indian Contract Act, 1872, a person of
sound mind is a person who is capable of understanding and forming
a rational judgment as to its effect on his/her interests. Similarly,
in Section 84 of the Indian Penal Code, 1860, a person of unsound
mind is a person who, by reason of unsoundness of mind, is not able
to know the nature and consequence of his/her act, whether it is
right or wrong.
Who can institute suit by or against minor and person of unsound mind.
➢ Order 32(Rule 1) provides that every suit shall be instituted in the
name of the minor by the ‘next friend’ of the minor. The ‘next
friend’ is any person who has attained majority and is in some way
related to the minor so as to ascertain his/her interests. Such "Next
Friend" should be closely related to the minor so as to bonafidely
ascertain the interests of the minor, for instance father, mother,
brother, sister etc, or guardian. He does not become a party to the
suit but merely represents minor's interest. The ‘next friend’ will

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act on behalf of the minor in suits or proceedings before the court

and, in a bonafide manner, represent his/her interests.
Liability of Next Friend:
➢ The ‘next friend’ does not only represent the interests of the minor
or person of unsound mind but is also held responsible for other
purposes. Where a suit brought by a minor through his next friend
is dismissed by a court and it has emerged that the suit was not to
the benefit of the minor, the court may direct the next friend
personally to pay the costs. But if the court is convinced that there
are reasonable grounds for instituting the suit and the next friend
has acted in good faith, the court will not hold the next friend liable
to pay the costs and will direct the costs to come out of the property
of the minor. But the successful defendant is entitled to get his
costs from the next friend irrespective of the question of whether
the suit was for the benefit of the minor or not.
➢ Order 32, Rule 2A(1) provides that where the suit is instituted by
the minor through his next friend, the Court may order the next
friend, at any stage of the suit, to furnish the security for the
payment of all the costs incurred or for the payment of the costs
which are likely to be incurred. The object is to discourage vexatious
or frivolous litigation by the next friend of the minor.
➢ Rule 4 consists of various conditions which need to be fulfilled to be
appointed as the next friend or guardian ad litem. There are mainly
four conditions for a person to be appointed as the next friend or
guardian ad litem (sub-rule 1):
1. A person of sound mind,
2. A person has attained a majority,
3. A person has no adverse interest in the subject matter of the
minor,
4. A person is not a defendant in the case of the next friend or not
a plaintiff in the case of guardian ad litem.

Q11 Attachable and non attachable properties?

A suit in a civil court concerning any right to any property may be
decreed in favour of the plaintiff or may be dismissed. If the suit is
decreed, the person in whose favour the decree is passed is called the
decree-holder and a person against whom it is given is called the
judgment-debtor. The decree-holder can resort to execution to realise

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the amount, by way of attachment of the property of the judgment

debtor, or by ways of arrest of the judgment debtor or by both.
Attachment is an order of the court prohibiting the judgment debtor
from dealing with the property attached. It is only after attachment
that it will be ordered to be sold by the court by court auction.
Thus, attachment of property is a legal concept of seizing property to
ensure the satisfaction of a judgement. The court has an extraordinary
power to issue an interim order under Order 38 Rules 5 to 13 of the
Code of Civil Procedure, 1908 (CPC) for the attachment of a property
before judgement.
The essential requirements for invoking the power of court to effect
an attachment under Order 38, Rule 5 (1), CPC are that the Court
must be satisfied that the defendant is about to dispose of the whole
or any part of his or her property. Any property that belongs to the
judgement debtor, or any property over which he has disposing
authority that he may exercise for his own benefit, is subject to
attachment and sale in the course of carrying out a judgement.
The property can only be attached if the property belongs to judgement
debtor or if judgement debtor has disposing power over such
property. The property may be in judgement debtor’s own name or held
in trust for him by other person.
Under the Code of Civil Procedure, 1908 (CPC), the following properties
can be attached:
➢ Land, houses, and other buildings
➢ Goods, money, bank notes, cheques, bills of exchange, promissory
notes, government securities or other securities of money, debts
➢ Shares of a corporation
➢ All other movable or immovable property which can be sold
It’s important to note that the property can only be attached if it
belongs to the judgement debtor or if the judgement debtor has
disposing power over such property. The property may be in the
judgement debtor’s own name or held in trust for him by another person.
Where the property is immovable the attachment shall be made by an
order prohibiting the judgment-debtor from transferring or charging
the property in anyway. All persons are prohibited from taking any
benefit from such transfer or charge. The order shall be proclaimed
at some place on the property or adjacent to the property by beat of
drum or other customary mode. A copy of the order shall be affixed

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on a conspicuous part of the property or of the Court house (or in the

office of the collector if it is land)
The following are not liable for attachment:
➢ Necessary wearing apparel, cooking vessels, beds and beddings of
the debtor, of his wife and children. Personal ornaments which should
be with a woman by religion. (Eg. Mangala Sutra etc.)
➢ Tools of artisans, Agricultural implements including cattle and seed
grain and agricultural produce as are necessary for livelihood.
➢ Books of account, a mere right to sue for damages, any right of
personal services, etc.
➢ Stipends and gratuities and political pensions.
➢ Wages of laborers and domestic servants payable in kind or in money.
➢ Salary to the first Rs.400/- and two thirds of the remainder,
➢ A right to future maintenance etc. as per Sn.60 of C.P.C.
➢ Houses and buildings belonging to agriculturist, laborer or a domestic
servant,
➢ L.I.C. Policies, Provident Fund Contributions
➢ Set off and counter claim

Q12 What is limitation and when it can be extended under various

provisions of limitation act?
Ans) A time period within which a right can be enforced in a Court of
Law is known as limitation period. The time period for various suits has
been provided in the schedule of the Limitation Act 1963.
The law prescribes certain time limits for different suits and
proceedings within which an aggrieved person can approach the court
for redressal or justice. This means that if a suit, appeal, or
application is initiated after the specified term, it will be dismissed,
even if the limitation is not raised as a defense.
The Limitation Act, 1963 provides for the extension of the prescribed
period in certain cases. Here are some circumstances under which the
limitation can be extended:
➢ Sufficient Cause (Section 5): The Act allows for the extension of
the prescribed period in certain cases if a sufficient cause is shown
for the delay. This is known as the doctrine of “Sufficient Cause”
for condonation of delay.
➢ Legal Disability (Section 6): The Act provides for the extension of
time in cases of legal disability. For instance, the limitation period

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does not run against a minor. Instead, it allows individuals with

disabilities to seek an extension of time before the expiration of the
period mentioned in the Schedule, calculated from the end of their
legal disability.
➢ Special Cases: Some jurisdictions may allow for an extension or delay
to the commencement of a limitation period where a party operates
under a defined disability, in personal injury cases, among others.
➢ Acknowledgement of debt plays a significant role in extending the
limitation period under the Limitation Act, 1963. Section 18 of the
Limitation Act provides that where, before the expiry of the
prescribed period of limitation, an acknowledgement of liability is
made in writing and signed by the debtor, a fresh period of limitation
starts from the time when such acknowledgement was signed. The
term ‘acknowledgement’ is used to mean an admission of an existing
liability in lieu of which the period of limitation is extended.
➢ In the case of Laxmi Pat Surana vs Union of India, it was held by
the apex court that the three-year period for recovering debts
under Limitation Act can be extended if the debtor acknowledges
the debt within that period. The limitation period stands extended
for three more years from the date of such acknowledgement.

Q13 Decree, types of decrees & execution of decrees

The term “decree” has been defined under section 2(2) of the Code of
Civil Procedure,1908. The decree is a formal expression of adjudication
by which the court determines the rights of parties regarding the
matter in controversy or dispute.
For any decision to be considered as a decree, the adjudication must
have been done in suit. The term “suit” for this context can be
understood as “any civil procedure which has been instituted by the
presentation of a plaint”. The decree can only be in a civil suit. If
there is no civil suit, there can be no decree. Further, there must be
an adjudication. The matter in dispute should be judicially determined.
Following decisions considered as a decree:
➢ Order of abetment of suit
➢ Dismissal of appeal as time-barred;
➢ Dismissal of suit or appeal due to the requirement of evidence or
proof;
➢ Rejection of plaint due to non-payment of court fees;

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➢ Order granting costs and instalments;

➢ An order refusing costs or instalments;
➢ An order refusing maintainability of appeal;
➢ Order denying the survival of right to sue;
➢ Order stating that there is no cause of action;
➢ An order refusing to grant one or several reliefs;
Types of Decree:
The Code of Civil Procedure recognises the following classes of decrees:
Preliminary Decree:
Where an adjudication decides the rights of the parties with regard to
all or any of the matters in controversy in the suit, but does not
completely dispose of the suit, it is a preliminary decree. A preliminary
decree is passed in those cases in which the court has first to
adjudicate upon the rights of the parties and has then to stay its hands
for the time being, until it is in a position to pass a final decree in the
suit. In other words, a preliminary decree is only a stage in working
out the rights of the parties which are to be finally adjudicated by a
final decree – Mool Chand v. Director, Consolidation, AIR 1995 SC
2493.
The Code provides for passing of preliminary decrees in the following
suits:
➢ Suits for possession and mesne profits
➢ Administration suits
➢ Suits for pre-emption
➢ Suits for dissolution of partnership
➢ Suits for accounts between principal and agent
➢ Suits for partition and separate possession
➢ Suits for foreclosure of a mortgage
➢ Suits for sale of mortgaged property
➢ Suits for redemption of a mortgage.
Final Decree
A decree may be said to be final in two ways:
a) When within the prescribed period no appeal is filed against the
decree or the matter has been decided by the decree of the highest
Court; and
b) When the decree, so far as regards the Court passing it, completely
disposes of the suit – Shankar v. Chandrakant, AIR 1995 SC 1211;
A final decree is one which completely disposes of a suit and finally

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settles All questions in controversy between parties and nothing

further remains to be decided thereafter.
Partly preliminary and partly final decree:
A decree may be partly preliminary and partly final, e.g., in a suit for
possession of immovable property with mesne profits, where the Court:
a) decrees possession of the property; and b) directs an enquiry into
the mesne profits. The former part of the decree is final, while the
latter part is only preliminary because the final decree for mesne
profits can be drawn only after enquiry, and the amount due is
ascertained. In such a case, even though the decree is only one, it is
partly preliminary and partly final.
Execution of Decree:
There are three stages in litigation - a. Institution of litigation, b.
Adjudication of litigation, c. Implementation of litigation. This
implementation of litigation is also known as Execution. Execution of
decree is the last stage of any civil litigation.
A decree can be executed by the court which has passed the judgment.
In exceptional circumstances, the judgment will be implemented by
other court which is having competency in that regard. Execution
enables the decree-holder to recover the fruits of the judgment.
The term “execution” has not been defined in the code. The expression
“execution” simply means the process for enforcing or giving effect to
the judgment of the court. The principles governing execution of decree
and orders are dealt with in Sections 36 to 74 and Order 21 of the
Civil Procedure Code. Execution is the enforcement of a decree by a
judicial process which enables the decree-holder to realize the fruits
of the decree and judgment passed by the competent Court in his
favour. The execution is complete when the decree-holder gets money
or other thing awarded to him by the judgment, decree or order of the
Court.
Modes of Executing a Decree
The Code lays down the following modes for execution of different
types of decrees (section 51) as under:
➢ Delivery of any property specifically decreed: This could be any
property, movable or immovable, which is specifically mentioned in
the decree.

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➢ Attachment and sale or by sale without attachment of the property:

The property of the judgement debtor may be attached and sold, or
sold without attachment, to enforce the decree.
➢ Arrest and detention: The judgement debtor may be arrested and
detained in prison for the period specified by the court.
➢ Appointment of a receiver: A receiver may be appointed to manage
the property of the judgement debtor.
➢ Effecting partition: In case the decree is for partition of property,
the court may effect the partition as per the terms of the decree.
➢ Any such manner which the nature of relief requires: The court has
the discretion to determine the mode of execution based on the
nature of the relief granted in the decree.
It’s important to note that the choice of the mode of execution is
generally left to the decree-holder. However, the court has the
discretion to refuse execution against the person and property of the
judgement-debtor at the same time.

Q14 Define Summons? What are the different modes of serving

summons under CPC?
The meaning of summons is to order a person to come into the court.
It is the simple form of the legal process which is issued by the court
for enforcing the attendance of persons or any document at specified
time given in summons. The court can give the summon for a person or
any document.
The main purpose of the summons is to inform the defendant in the
case that the plaintiff has filed a legal suit against him. Almost every
time, the service of summons is done with an attached copy of the
complaint where the plaintiff has given his facts of the complaint.
Although the person who has the name on the summons has to appear
in person in the court if not possible or not mentioned in the summons,
the person can send his advocate who has the knowledge of the facts
of the case or he is able to give answers related to the case.
The essentials of a summon are given under Order 5, Rules 1 and 2 of
the code:
➢ Every summon must be signed by the judge or any other officer
whom he appoints to do so on his behalf.
➢ It must be sealed properly.

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➢ The court will not issue any summons to the defendant if he has
appeared before the court at the time of the institution of the
plaint.
➢ Another essential element of summons is that every summon must be
accompanied by a copy of the plaint.
➢ The format of a summons must be according to the prescribed form
given in Appendix B of the First Schedule under the code.
After summons are issued, the defendant is required to file written
statements within 30 days. If he fails to do so, he has to provide
reasons, and if the court is satisfied, it can extend the time period to
file written statements to not more than 90 days.
Types Of Summons
Civil Summons
These are the judicial types of summons which are given under the civil
case to appear in the court and respond to the plaint filed by the
plaintiff. This is to inform the defendant that a civil suit has been
instituted against him.
Criminal Summons
The types of summons which are sent to the person to appear in the
criminal court in the criminal case are called Criminal summons. There
can be different types of summons that came be served in criminal
cases like, citation summons (summon given to the person to appear in
the court for the minor charges); a notice to appear in the court,
traffic summons (for breaking traffic rules),
Administrative Summons:
These types of summons can be served by administrative courts like
labour courts, tax courts etc. Such courts have the power to summons
the person under the jurisdiction of that court.
Different modes of serving summons under CPC
After the plaint is filed, the intimation is issued by the court to
defendant to appear in the court to defend it. The intimation which is
sent to the other party (defendant) is called summons. The provision
related to summons are given in Order V of CPC.
Mode of service of summons
Service by Court
Order V, rule 9 states that where the defendant or his agent
empowered to accept the service resides within the jurisdiction of the
Court in which suit is instituted, the summons shall be delivered or be

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sent to the proper officer to be served or sent to a Court-approved

courier service. Sub-rule (3) of this rule states that such a service
may be made by delivering or transmitting a copy by registered post
acknowledgement due to either the defendant or such agent either by
officer of the court known as process server or bailiff or by such
courier services as are approved by the court speed post or a Court
approved courier service.
Sub-rule (5) states that return of acknowledgement or receipt signed
by the defendant or his agent, or the return of postal article containing
summons along with the endorsement by the relevant postal
officer/employee of refusal to take delivery shall be declared by the
court as due service.
Service by Plaintiff
As per the provisions of Order V, Rule 9A, in addition to the service
of summons under rule 9, the Court may, on an application by the
plaintiff, permit such plaintiff to affect the service of summons upon
the defendant.
If such service is refused, or if the person served refuses to sign the
acknowledgement of service or for any reasons the summons were not
served personally, then, the Court shall reissue such summons on an
application of the party.
Service on Agents
Order V, Rule 13 states that when a suit regarding business or work is
filed against a person who does not reside within the jurisdiction of the
Court issuing summons, then the summons being served on any manager
or agent personally carrying out such business or work shall be
considered good service.
Order V, Rule 14 states that when in a suit to obtain relief with respect
to immovable property service cannot be made on the defendant or his
agent empowered to accept such service then the service must be made
on any agent of the defendant who is in charge of the property.
Service on Adult Member of Family
According to the provisions of Order V Rule 15, where the defendant
is absent from his residence at the time of service of the summons and
there is no likelihood of him being found within a reasonable period of
time and he has no agent empowered to accept service on his behalf,
the service may be made to any adult member of the family residing
with him.

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Service When Defendant Refuses to Accept Service

Rule 17 of Order V provides for the procedure when the defendant
refuses to accept service or cannot be found after due and reasonable
diligence. In such a case, the serving officer must affix a copy of the
summons on the outer door or some other conspicuous part of the house
in which the defendant ordinarily resides or carries on business or
personally works for gain.
The serving officer shall thereafter return the original summons to the
Court that issued it along with his report stating that he affixed the
copy, the circumstances under which he did so, and the name and
address of the person who identified the house and in whose presence
the copy was affixed.
Substituted Service
The provisions of Order V, Rule 20 provide for substituted service.
Such a mode of service can be adopted by the Court when it is satisfied
that the defendant is keeping away for the purposes of avoiding service
or for any other reason the service cannot be made in an ordinary
manner.
As per this rule, the Court shall order that a copy of the summons be
affixed on some conspicuous place in the Court house and also on some
conspicuous part of the house in which the defendant is known to have
last resided or carried on business or personally works for gain.
The court can also order service by advertising in a daily newspaper
that is circulated in the locality in which the defendant is known to
have last resided, or carried on business or personally works for gain.

Q15 Write a note on Summary Suit?

Ans) The Code of Civil Procedure, 1908 provides for various mechanisms
for the speedy disposal of cases. One of such mechanisms is the
Summary Suit. Summary Suit is a legal proceeding in which the plaintiff
seeks to recover the debt or liquidated demand in a swift and expedited
manner. Order 37 of CPC, lays down the procedure for filing and
adjudication of summary suits.
A summary suit can be instituted by presenting a plaint with specific
averments that the suit is filed under this Order. The defendant is
required to enter an appearance and is deemed to admit the allegations
if he fails to do so. The plaintiff is entitled to a decree for the amount

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claimed if the defendant does not enter an appearance or fails to get

leave to defend
The main objective of a summary suit is to provide for a quick and
efficient legal remedy to recover debts or liquidated demands without
going through the normal process of a regular civil suit. The summary
suit procedure is only available for cases where the plaintiff’s claim is
a debt or a liquidated demand that arises out of a written contract,
an enactment or on a guarantee.
The summary suit procedure is beneficial for both parties. For the
plaintiff, it provides a faster remedy and for the defendant, it provides
an opportunity to defend the claim without being subjected to
protracted and time-consuming litigation.
It is important to note that the summary suit procedure does not
provide for an appeal against the summary decree. The only remedy
available to the defendant is to file a regular suit challenging the
decree.

Q16 Write a note on Injunction?

Ans) An injunction is a court order requiring a person to do or cease
doing a specific action. There are three types of injunctions: Permanent
injunctions, Temporary restraining orders and preliminary injunctions.
Temporary restraining orders (TRO) and preliminary injunctions
are equitable in nature. They can be issued by the judge early in a
lawsuit to stop the defendant from continuing his or her allegedly
harmful actions. Choosing whether to grant temporary injunctive relief
is up to the discretion of the court. Permanent injunctions are issued
as a final judgment in a case, where monetary damages will not suffice.
Failure to comply with an injunction may result in being held in contempt
of court, which in turn may result in either criminal or civil liability.
It is an extraordinary remedy that courts utilize in special cases to
alter or maintain the status quo, depending on the circumstances,
particularly where the defendant must stop its course of action to
prevent possible injustice and irreparable harm to the plaintiff.
Injunctive relief is a discretionary power of the court, in which the
court balances the irreparability of harm and inadequacy of damages if
an injunction were not granted against the damages that would result
if an injunction was granted. An individual who has been given adequate

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notice of an injunction but fails to follow the court's orders may be

punished for contempt of court.

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Situational problems

1. "A" filed a suit against 'B' for recovery of his property. During the
pendency of the suit, “B" dies.
a) What steps should be taken after 'B' dies?
b) What happens to the suit if the heirs are not brought on record ?
Ans a) In the event of the death of ‘B’ during the pendency of the
suit, ‘A’ should take the following steps:
Application for Substitution: ‘A’ should file an application under Order
22 Rule 3 of the CPC, 1908 to bring the legal representatives of ‘B’ on
record. This is because the right to sue survives even after the death
of a defendant.
Time Limit:
The application along with an affidavit or petition must be filed within
90 days from the date of knowledge of the death of the defendant to
set aside abatement under Order 22 Rule 9 by the plaintiff.
In Case of No Legal Representative: If ‘B’ has no legal representative,
the court may, on the application of ‘A’, proceed in the absence of a
person representing the estate of ‘B’, or may by order appoint the
Administrator-General, or an officer of the Court or such other person
as it thinks fit to represent the estate of ‘B’ for the purpose of the
suit.
Ans b) If the heirs are not brought on record in a lawsuit after the
death of a party, the following consequences may occur:
Abatement of Suit: The suit or appeal may abate due to non-bringing
of the legal representatives of the deceased party on record. This
means that the suit comes to an end and cannot be revived.
Decree Becomes Nullity: If the court passes a decree in ignorance of
the death of the sole defendant and the heirs are not brought on
record, the decree becomes a nullity2. This means that the decree has
no legal force or effect2.
Right to Sue Survives: The right to sue survives against the surviving
respondents. This means that the suit can continue against the other
parties if there are multiple defendants.

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2. “A” enters into contract with “B” for sale of goods. Contract is
made at Mumbai, goods are delivered at Chennai, payment of the price
is to be made in Delhi. “B” delivered the good but “A” refuses to pray
the price agreed, ”B” want to file a Suit against “A” to recover the
price, in which place he can file the suit. If “B” resides are Hyderabad,
can he file the suit there?
Ans) According to Section 20 of the CPC, a suit can be instituted in a
court within the local limits of whose jurisdiction the cause of action
has arisen i.e where any of the defendants, at the time of the
commencement of the suit, actually and voluntarily resides, or carries
on business, or personally works for gain. In present case, “B” can file
a suit in any of the following places:
➢ Mumbai, where the contract was made.
➢ Chennai, where the goods were delivered.
➢ Delhi, where the payment was to be made.
“B” is the plaintiff, as such his residence is immaterial. Section 20(a)
where any of the defendants, at the time of the commencement of the
suit, actually and voluntarily resides, or carries on business, or
personally works for gain.

3. A plaintiff obtained decree to recover 50,000 against defendant.

Who is the employee of Parle Products company drawing monthly salary
of 9000? Can a plaintiff demand money from parle product company?
What procedures the plaintiff may follow to demand money and if unpaid
there even thereafter?
Ans) Yes, the plaintiff can recover the money from the defendant’s
employer, Parle Products Company, by following the procedure of
Garnishee Proceedings under the Code of Civil Procedure (CPC). Here
are the steps the plaintiff may follow:
a) Application to the Court: The plaintiff should apply to the court that
passed the decree for the recovery of Rs. 50,000, requesting the
court to issue a notice to the garnishee who owes money to
Judgement Debtor (in this case, Parle Products Company) who owes
money to the judgment debtor (the defendant).
b) Notice to the Garnishee: If the court is satisfied that the garnishee
owes money to the judgment debtor, it may issue a notice to the
garnishee. The notice prevents the garnishee from paying the debt
owed to the judgment debtor until the court makes a further order.

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c) Order of Payment: If the garnishee does not dispute the debt, the
court may pass an order directing the garnishee to pay the decree
holder or to the court. If the garnishee disputes the debt, the court
may decide the question after taking evidence from both parties.
d) Execution of the Decree: If the garnishee fails to comply with the
order, the decree holder may apply for the execution of the decree
against the garnishee.

4. Defendant received a writ of summons on 10th January.

Thereafter he was very sick and was advised bed rest during the period
1st February to 10th March when the defendant was required to file
his written statement. Can the court allow him to file the written
statement in above situation? Till what time code may allow him to file
written statement in this situation.
Ans) Yes, the court can allow the defendant to file the written
statement in the given situation. According to Order VIII Rule 1 of
the CPC, the defendant is required to file the written statement within
30 days from the date of service of summons. However, the court has
the discretion to extend this time period up to 90 days from the date
of service of summons.
In this case, if the defendant was unable to file the written statement
due to illness, he can apply to the court for an extension of time for
filing the written statement. The defendant would need to provide
sufficient cause for the delay, such as medical certificates or doctor’s
advice for bed rest, to justify the extension.

5. A, along with the belief, approached the premises of which the

decree for eviction and possession was passed against Mr B. On that
occasion Mr X was found in the possession of the premises who refused
to hand over the possession of the said premises as the decree was not
against him. What remedy is available to Mr A? When Mr A can get
the possession of the suit premises.
Ans) In this case, ‘A’ can take the following steps to recover possession
of the premises from ‘Mr. X’:
a) File a Suit for Ejectment: ‘A’ can file a suit for ejectment against
‘Mr. X’ on the basis of his title and get a decree for ejectment.

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b) Execute the Decree: Once ‘A’ obtains the decree for ejectment, he
can execute the decree in accordance with the provisions of the
Code of Civil Procedure (CPC).
c) Resort to Specific Relief Act: If ‘Mr. X’ unlawfully dispossesses ‘A’,
then ‘A’ would be entitled to recover possession from him by resorting
to the remedy provided under Section 9 of the Specific Relief Act.
d) Garnishee Proceedings: If ‘Mr. X’ is a tenant and refuses to vacate
the premises, ‘A’ can initiate garnishee proceedings against 'Mr. X.
e) Mr. A can file an obstructionist application which is a legal procedure
in the execution of a decree. If a decree holder is resisted or
obstructed in the execution of a decree for possession, the decree
holder can move an application under Order XXI, Rule 97 of the CPC
for removal of such obstruction. The court can then pass an
appropriate order after adjudicating upon the controversy between
the parties.

6. Mr. D wants to file an appeal in Mumbai. High Court limitation is

expiring on 26th January 2011 which is a court holiday on 27th January
2011, a curfew is imposed for 7 days due to terror attack. Advice “D”
as to filing appeal after limitation expire under this circumstances.
Ans) In such circumstances, the appellant ‘D’ can still file an appeal
after the limitation period has expired. The law provides for the
condonation of delay in filing an appeal due to sufficient cause under
Section 5 of the Limitation Act.
The curfew due to a terror attack and the court holiday can be
considered as a sufficient cause for not filing the appeal within the
limitation period. ‘D’ would need to file an application for condonation
of delay along with the appeal, explaining the reasons for the
delay. The court will then decide whether to condone the delay based
on the circumstances explained in the application.

7. Mr A suit is fixed for hearing on 3rd October 2008. A suffers a

heart attack and is admitted to hospital on 2nd October 2008. He is
unable to inform his advocate, so his suit is dismissed on 3rd October
2008. What is the remedy for “A” on recovering from hospital?
In this situation, ‘A’ can apply to the court for the restoration of the
suit. This is done by filing an application under Order IX Rule 9 of the
CPC, which allows the court to set aside the order of dismissal of a

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suit if the plaintiff was prevented by any sufficient cause from

appearing when the suit was called for hearing.
In this case, 'A’s heart attack and subsequent hospitalization would
likely be considered a sufficient cause. ‘A’ would need to provide
evidence, such as medical certificates, to support his application.

8. Mr P has borrowed the money from Mr. Q with promise to repay

the same on 23rd January 2003. Mr. P did not repay any amount but
requested in writing to extend the period of repayment of loan by one
year by acknowledging the principal debt. Will it extend limitation? If
the request in writing is made after expiry of limitation, will it still
extend limitation?
Ans) Yes, the limitation period can be extended by obtaining an
acknowledgment of debt in writing from the borrower before the expiry
of the prescribed period of limitation. However, it is important to note
that the acknowledgment, if any, has to be made before the expiration
of the prescribed period for filing the suit.
Once the limitation period expires, it can be extended only by executing
fresh set of documents. Fresh limitation period will be available from
the date of execution of such documents. Therefore, if the written
request is made after the expiry of the limitation period, it would not
extend the limitation period.

9. Mr. “I”, the landlord of the tenanted property expired leaving

behind his 3 sons. All the 3 sons started demanding rent from each
tenant separately. Will you advise that tenants could pay the rent to
each of the sons? If not? What you will advise the tenants to do?
Ans) In this situation, the tenants should not pay rent separately to
each of the sons. Instead, they should do the following:
a) Request for Legal Heir Certificate: The tenants should ask the sons
to provide a legal heir certificate or a succession certificate. This
certificate is issued by the court and it establishes who the legal
heirs of the deceased person are.
b) Joint Account: The tenants can suggest that the sons open a joint
bank account where the rent can be deposited. This ensures that
the rent is divided equally among the sons.

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c) Written Agreement: The tenants should insist on a written

agreement with all the sons that specifies how the rent should be
paid.
d) If the sons of landlord are not doing any of the above, the tenant
can file an interpleader suit against the sons of a deceased
landlord. If on the death of the original owner the tenant has any
doubt as to who was the owner of the premises, he is supposed to
file an interpleader suit impleading all the legal heirs of the deceased
and ask the Court to decide as to who shall be the landlord/owner
after the death of the original owner.

10. Mr E has borrowed from Mr. F Rs 1,25,000 to be repaid with

interest on due date. Mr E makes the part payment of ₹1,00,000 after
the expiry of limitation period. What will be the effect of such part
payment on the limitation? Will it make any difference if the part
payment was made? Before expiry of limitation.
Ans) The law states that if a part payment is made after the expiry
of the limitation period, it does not extend the period of limitation.
This means that the claim for the remaining amount of the loan would
still be time-barred by the law of limitation.
However, if the part payment was made before the expiry of the
limitation period, it would extend the limitation period. This is because
the Limitation Act allows for the extension of the limitation period when
a borrower or his duly authorized agent makes a part repayment of the
loan before the expiry of the limitation period. The evidence of such
payments should be under the signature of the borrower or his
authorized agent.
So in the case of Mr. E and Mr. F, if Mr. E made a part payment of
₹1,00,000 after the expiry of the limitation period, it would not extend
the limitation period for the remaining amount of the loan. But if the
part payment was made before the expiry of the limitation period, it
would extend the limitation period for the remaining amount of the loan.

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