Que. what do you mean by summons?

explain different modes of

services of summons.
Ans:- he word “summons” has not been defined in the Civil Procedure
Code. The intimation sent to the defendant by the court is known as a
summons. Order 5 and sections 27 to 29 of the Civil Procedure Code deal
with summons under civil litigation.
 Object of Issuing Summons
 Essentials of Summons
 Contents of Summons
 Service of Summons
Object of Issuing Summons
The object of issuing summons is to uphold the idea of natural justice and
provide the defendant with the opportunity to say what he has to say
against the prayer made by the plaintiff.
Essentials of Summons
According to Rule 1 and Rule 2 of Order 5 of the Civil Procedure Code,
every summons shall be signed by the judge or the officer appointed by the
court and shall bear the seal of the court. A plaint must accompany every
summons.
Contents of Summons
According to Rule 5 of Order 5 of the Civil Procedure Code, the summons
must state whether the date specified is for the settlement of issues only or
for the final disposition of the suit. The summons should also include an
order requiring the defendant to produce any documents or copies of
documents in his possession or control that he intends to rely on in support
of his case.
Service of Summons
The Civil Procedure Code specifies five methods for serving a summons
on a defendant. They are:
1. Personal or Direct Service
2. Service by Court
3. Service by Plaintiff
4. Substituted Service
5. Service by Post
Let us learn more about these methods of serving summons.

1. Personal or Direct Service

The summons must be served on the defendant in person or by an
authorised representative wherever possible. If the defendant is absent
from his residence at the time of service of summons, the summons may
be served on any adult member or female member of the defendant’s
family. A servant cannot be said to be a family member.
Where there are two or more defendants, the summons should be served
on each defendant.
The service of the summons should be made by delivering a copy of the
summons. After that, the serving officer must make an endorsement on the
original summons regarding the delivery of the summons.
2. Service by Court
When a defendant is residing within the court’s jurisdiction, the summons
shall be served through the court officer or any approved courier service.
Where the defendant is residing outside the court’s jurisdiction, the
summons will be served through an officer of the court within whose
jurisdiction such defendant resides.
3. Service by Plaintiff
In addition to the service of summons by the court, the court may allow the
plaintiff to serve the summons.
4. Substituted Service
Substituted service can be done in the following circumstances:
 If the defendant or his agent refuses to sign the acknowledgement, or
if the serving officer is unable to locate the defendant after due
diligence and there appears to be no chance of finding him, the
service of summons can be done by fixing a copy of the summons on
the outer door or some conspicuous (noticeable) part of the house in
which the defendant resides or carries on business or personally
works for gain.
 Where the court is satisfied that the defendant is avoiding service of
summons or the summons cannot be served on the defendant in an
ordinary way, the service may be achieved either by affixing a copy
of the summons in the conspicuous place in the courthouse and also
where the defendant last resided, carried on a business, or where he
personally worked for gain or in such manner as the court thinks fit.
In Basant Singh vs Roman Catholic Mission (2002), the court stated that
one must remember that this is not a regular mode of service. Hence it
should not normally be allowed and should only be used as the last resort.
5. Service by Post
When the court receives an acknowledgement purporting to be signed by
the defendant or his agent, or when the defendant or his agent refuses to
accept delivery of the summons when it is tendered to him, the court
issuing the summons shall declare that the summons had been properly
served.
Relevant Provisions
The provision related to the summons is given in Section 27-32 and Order
V of CPC. There are two stages of summoning:
1. Issuance of Summon – Issuance of Summons means the issuance of
summons by the court. (O.V Rule 1 to 8)
2. Service of Summons -Service of Summons means delivery of
summon to the defendant. (O.V Rule 9 to 30)
Essential of summon
1.Every summon must be signed by the judge or any other officer whom
he appoints to do so on his behalf.
2.It must be sealed properly.
3.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.
4.After summons are issued, the defendant is required to file written
statements within 30days. 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.
5.Another essential element of summons is that every summon must be
accompanied by a copy of the plaint.
6.The format of a summons must be according to the prescribed form
given in Appendix B of the First Schedule under the code.
Objective of summon
1.it is important to inform a person about any legal action that has been
taken against them.
2. It gives an opportunity to the defendant to present his case and side of
the story.
3. The basis of summons lies in the maxim “Audi Alteram Partem”, which
means to hear both sides.
4. It further helps in following the principles of natural justice and ensures
fair proceedingsand trial.
5. It helps in ensuring the presence of either a witness or accused or any
other person who isinvolved directly or indirectly in a suit before the court.
6. To produce the necessary documents
Decree
A decree is an official order issued by a court, signifying the final
decision on the rights of the parties involved in a civil suit. Under the
Code of Civil Procedure (CPC), 1908, a decree represents the formal
judgment that resolves the dispute between the parties. It is one of the
most important components of civil litigation, as it has the force of law
and is executable. Understanding the definition, types, process, and
implications of a decree is essential for anyone involved in civil legal
proceedings.
1. Introduction to Decree in CPC
A decree is the formal pronouncement of a court’s decision in a civil
matter. Under Section 2(2) of the CPC, 1908, a decree is defined as:
“The formal expression of an adjudication which, so far as regards the
Court expressing it, conclusively determines the rights of the parties with
regard to all or any of the matters in controversy in the suit.”
This means that a decree not only resolves the matters in controversy but
also has a binding effect on the parties involved. It is issued by a court
after conducting a trial, but before the decree becomes final, it may be
subject to appeals, revisions, or review.
2. Types of Decrees
The CPC classifies decrees into several types, each of which plays a
specific role in the judicial process. Understanding these types helps in
appreciating how courts resolve disputes and how parties are impacted by
them.
A. Preliminary Decree (Section 2(2) of CPC)
A preliminary decree is one that determines the rights of the parties in a
suit, but it does not completely dispose of the case. It requires further
proceedings to determine the final relief. Preliminary decrees are
common in suits for partition, foreclosure, or dissolution of partnership.
Example: In a partition suit, a court may issue a preliminary decree
declaring the shares of the parties in the property, but further proceedings
may be required to divide the property physically.
B. Final Decree (Section 2(2) of CPC)
A final decree is one that conclusively disposes of the entire matter,
leaving nothing further to be done except execution. This is the final
decision in the suit. A final decree is passed after the necessary steps have
been taken following the preliminary decree (if any).
Example: After a preliminary decree in a partition suit, a final decree may
be passed to divide the property and allocate specific portions to each
party.
C. Consent Decree
A consent decree is a decree passed by the court based on an agreement
between the parties. The parties mutually agree to settle their dispute, and
the court formalizes this settlement by issuing a decree.
Example: In a case of breach of contract, the plaintiff and defendant may
agree to settle the matter by payment of a certain sum, and the court will
pass a consent decree to enforce this settlement.
D. Ex-Parte Decree
An ex-parte decree is one that is passed when one party (usually the
defendant) does not appear before the court despite being duly served
with a summons. In such cases, the court may decide the matter based on
the plaintiff's claims alone.
Example: If the defendant in a suit does not attend court hearings, the
court may pass an ex-parte decree in favor of the plaintiff if the plaintiff’s
claims are not contested.
E. Decree by Agreement of the Parties
In some cases, the parties to the litigation may file a joint petition with
the court, agreeing to a specific decree without proceeding to trial. The
court can issue such a decree as long as it does not violate any legal
provisions.
Example: In a divorce suit, both parties may agree on the terms of
alimony, child custody, and division of property, and the court can issue a
decree based on that agreement.
3. Process of Decree in CPC
The process of obtaining a decree involves several stages, from the filing
of the plaint to the final judgment. Below is a step-by-step outline of the
process:
A. Filing of the Suit - The process begins when the plaintiff files a
plaint before the court. The plaint must contain the cause of action, the
legal basis for the suit, and the relief sought. Once the suit is filed, the
 court issues a summons to the defendant, asking them to appear and
respond.
B. Appearance of Defendant and Filing of Written Statement - Once
the defendant appears before the court, they must file a written
statement responding to the allegations made in the plaint. The
defendant’s written statement must specifically admit or deny the
allegations and raise any defenses, counterclaims, or objections.
C. Framing of Issues - After the written statement is filed, the court will
frame issues based on the facts and pleadings presented by both parties.
These issues define the points of law and fact that need to be adjudicated.
D. Trial and Evidence - Once the issues are framed, the trial
commences. Both parties present their evidence, including oral testimony
and documentary evidence. The plaintiff presents their case first,
followed by the defendant.
E. Judgment and Decree - After the trial, the court delivers its
judgment, which may either dismiss the suit or grant the relief sought. If
the court grants relief, it passes a decree formalizing its decision.
4. Components of a Decree
A decree typically includes the following components:
 Title: The name of the court and the names of the parties involved in
the suit.
 Preamble: A brief introduction stating the nature of the suit and the
orders made.
 Findings: The court’s findings on the issues raised during the trial.
 Relief: The relief granted, which could include compensation,
injunctions, declaratory relief, etc.
 Costs: A determination of which party will bear the legal costs of the
proceedings.
 Execution Clause: Instructions for executing the decree, if applicable.

5. Execution of Decree
Once a decree is passed, it may be necessary for the successful party to
execute the decree to enforce its terms. Execution involves the physical
or legal enforcement of the decree by the court.
A. Procedure for Execution
 1. Application for Execution: The party in whose favor the decree is
passed must file an execution petition before the court.

2. Issuance of Warrant: The court may issue a warrant of

attachment or other orders to ensure the decree is enforced, such as
the seizure of property or attachment of bank accounts.

3. Sale of Property: In cases where money is owed, the court may

order the sale of the judgment debtor’s property.

4. Arrest: In certain cases, the court may order the arrest of the
judgment debtor to compel compliance with the decree.
B. Stay of Execution
The execution of a decree may be stayed or suspended by the court if the
judgment debtor applies for it, typically during the pendency of an
appeal. The stay prevents the decree from being enforced until the appeal
is resolved.

6. Appeal, Review, and Revision of Decrees

A. Appeal - A party aggrieved by the decree passed by a lower court may
file an appeal in a higher court. The grounds for appeal are typically
based on errors of law or fact. Appeals are governed by Order XLI of
the CPC.
B. Review - If there is an error apparent on the face of the decree, a party
may apply for a review under Order XLVII of the CPC. This is not an
opportunity to re-argue the case but is limited to correcting clerical or
procedural errors.
C. Revision - A higher court can revise the decree passed by a lower
court under Section 115 of the CPC if it finds that the lower court has
acted in excess of jurisdiction or committed a gross error of law.
7. Case Laws and Judicial Interpretation
Several important cases have shaped the law surrounding decrees in
India:
1. Bhagwati Prasad v. M/s. P.D. Agarwal (1997)
In this case, the Supreme Court clarified that the decree represents the
final adjudication of the rights of the parties and that the judgment must
contain all the necessary details about the relief granted.
2. Daryao v. State of U.P. (1961)
The Supreme Court held that an ex-parte decree can be set aside if the
defendant provides a valid explanation for their non-appearance, and the
decree has not yet been executed.
3. Gurnam Kaur v. Surjit Singh (1985)
The court observed that in the case of a preliminary decree, a final
decree must be passed after the necessary steps have been taken, such as
the appointment of a commissioner or accounting of assets.
8. Conclusion
A decree is a formal, legally binding order passed by a court that resolves
the dispute between the parties. It is the final adjudication of a civil suit
and is essential for the enforcement of rights and obligations.
Understanding the types of decrees, the process of obtaining them, and
the procedure for execution is critical for anyone involved in civil
litigation. The decree serves as the cornerstone of civil justice, ensuring
that judgments are not only made but also enforced, thereby promoting
fairness and justice in legal proceedings.
Set off (Order VIII, Rule 6]
Definition: Where in a suit by the plaintiff for recovery of money and the
defendant finds that he also has a claim of some amount against the
plaintiff what he do is he can claim a set-off in respect of the said
amount. This right of the defendant to claim set off has been recognized
under Order 8, Rule 6 of the Code.
Essential Conditions:
1. A defendant may claim a set-off, if:
2. The suit is for the Recovery of money;
3. The sum of money must be ascertained;
4. Such sum must be legally recoverable;
5. It must be recoverable by the defendant or by all the defendants, if
not more than one;
6. It must be recoverable by the defendant from the plaintiff(s);
7. It must not exceed the pecuniary jurisdiction of the court in which the
suit is brought;
8. Both the parties must fill in the defendant's claim to set-off, the same
character as they fill in the plaintiff's
Effects:
When a defendant claims set-off, he is put in the position of the plaintiff
as regards the amount claimed by him. Where the plaintiff doesn't appear
 and his suit is dismissed or he withdraws, it does not affect the claim for a
set-off by the defendant and a decree may be passed in his favor if he is
able to prove his claim.
Illustrations: X sues Y on a bill of exchange. Y alleges that X has
wrongfully neglected to insure Y's goods and is liable to him in
compensation which he claims to set-off. The amount not being
ascertained cannot be set-off.
P sues Q on a bill of exchange for Rs. 1500. Q holds a judgment against P
for Rs. 1,000. The two claims being both definite, it may be set-off.
Types of Set Off
1. Legal Set Off - It is apparent from a reading of the above provisions
that in order to constitute legal set-off, the following conditions must be
fulfilled, viz.,
a) The suit must be for recovery of money. 10
b) The defendant must claim an ascertained sum of money. A sum of
money due in respect of a disputed transaction cannot constitute an
ascertained sum.
c) That ascertained sum must be legally recoverable from the plaintiff,
i.e., it is not barred by the law of limitation.
d) The plaintiff's claim and the set-off must be claimed in the same
character. The amount must be recoverable by the defendant.
e) The set-off should be within the pecuniary jurisdiction of the Court.
2.Equitable set-off - Court of Equity in England allowed set-off when
cross-demands arose out of the same transaction, even if the money
claimed by way of set-off was an unascertained sum of money. The
Common Law Courts refused to take notice of equitable claims for they
were not ascertained sums.
Counter Claim
Rule 6A to 6G of Order 8 deals with counter-claim. It is claim made by
the defendant in a suit against the plaintiff. It is a claim independent of
and separable from plaintiff's claim which can be enforced by a cross
section. Counter-claim can be set up in respect of action accruing to the
defendant either before or after the filing of the suit but before the
defendant has delivered his defense or before the time fixed for delivery
of his defense has expired.
Difference between Set Off & Counter Claim
 1. Set-off is a statutory defence to a plaintiff's action, whereas a
counterclaim is substantially a cross-action.
2. Set-off must be for an ascertained sum or must arise out of the
same transaction as the plaintiff's claim. A counter-claim need not
arise out of the same transaction.
3. Set-off is a statutory ground of defence and has to be pleaded in
the written statement. It can be sued as a shield and not as a
sword. Counter-claim, on the other hand, does not afford any
defence to the plaintiff's claim. It is a weapon of offence which
enables the defendant to enforce his claim against the plaintiff as
effectually as in an independent action. It is a sort of cross-action.
4. If the statute of limitation is pleaded to a defence of set-off, the
plaintiff in order to establish his plea has to prove that set-off was
barred when the plaintiff commenced the action. It is not enough
to prove that it was barred at the time when it was pleaded. In the
case of a counter-claim, it is enough for the plaintiff to prove that
the counterclaim was barred when it was pleaded.
5. An equitable set-off is a claim by the defendant in defence, which
generally cannot exceed the plaintiff's claim. In a counter-claim
the defendant may, however, exceed the plaintiff's claim, being in
nature of the cross action.
Foreclosure
Foreclosure is the legal process by which a lender attempts to recover the
amount owed on a defaulted loan by taking ownership of the mortgaged
property and selling it. Typically, default is triggered when a borrower
misses a specific number of monthly payments, but it can also happen
when the borrower fails to meet other terms in the mortgage document.
 Foreclosure is a legal process that allows lenders to recover the
amount owed on a defaulted loan by taking ownership of and selling
the mortgaged property.
 The foreclosure process varies by state, but in general, lenders try to
work with borrowers to get them caught up on payments and avoid
foreclosure.
 The most recent national average number of days for the foreclosure
process is 857; however, the timeline varies greatly by state.1
Codicil
 A codicil is literally a "little codex," a little bit of writing on a small piece
of writing material, used to add to or change something about a larger
piece of writing. A codicil to a will can change the terms of the original
will completely, so it generally requires witnesses just like the will itself,
though in some states a handwritten codicil may not. In mystery novels,
such changes have been known to cause murders; in real life, codicils
aren't usually quite that exciting.
Example Sentences A codicil to the treaty was necessary to clarify certain
provisos that had proved to be ambiguous
https://lawbhoomi.com/written-
written statement statement-in-cpc/
In the context of the Code of Civil
Procedure (CPC), the written statement is a crucial legal document filed
by the defendant in response to the plaint (complaint) filed by the plaintiff.
The written statement is governed by Order VIII of the CPC, and it serves
to admit, deny, or raise objections to the plaintiff's claims. It also allows
the defendant to assert their defense, raise counterclaims, and provide a
clear roadmap for the legal issues to be addressed in the trial.
1. Introduction to Written Statement under CPC
A written statement is the formal response of the defendant to the
allegations made by the plaintiff in the plaint. The primary purpose of the
written statement is to admit or deny the facts presented by the plaintiff
and to clarify any counterclaims or defenses that the defendant may have.
It is a fundamental procedural document that helps in framing the issues
for trial and ensures a fair trial by providing both parties an opportunity to
present their side.
The Code of Civil Procedure, 1908 (CPC), is the statute that governs civil
litigation in India. It contains provisions that outline how civil suits should
be conducted, and the written statement is an essential part of the process
under Order VIII.
2. Legal Provisions Governing Written Statement (Order VIII)
The rules regarding the written statement are primarily found in Order
VIII of the CPC, which contains specific provisions related to the filing,
contents, and time limits for the written statement.
A. Time for Filing Written Statement (Order VIII, Rule 1)
 Rule 1 of Order VIII specifies that a written statement must be filed
within 30 days from the date of receipt of summons.
  Extension of Time: The court may extend the time for filing the
written statement up to 90 days from the date of service of summons,
but only if the defendant shows sufficient cause for the delay.
 If the defendant fails to file the written statement within the specified
period, the court may proceed to hear the case ex-parte (without
hearing the defendant’s side).
B. Denial to be Specific (Order VIII, Rule 2)
 Specific Denial: If the defendant denies an allegation made by the
plaintiff, it must be a specific denial, not a vague or general denial.
For example, the defendant should specifically deny borrowing a
sum of money or entering into a contract.
 Failure to Deny: If the defendant fails to specifically deny an
allegation, it is considered as an admission of that allegation (unless
the court permits otherwise).
C. Admission and Denial (Order VIII, Rule 3)
 General Admission: If the defendant admits the truth of the
allegations made in the plaint, they should state that the allegations
are true.
 No Denial: If the defendant does not deny an allegation, it will be
treated as an admission, and the court may proceed with the case on
the assumption that those facts are true.
D. Counterclaim (Order VIII, Rule 6A)
 Counterclaim: The defendant can raise a counterclaim in the written
statement, which is a claim for relief against the plaintiff. A
counterclaim must arise out of the same transaction or subject matter
as the plaintiff’s claim.
 A counterclaim is treated as a separate suit and must be answered by
the plaintiff.
 The counterclaim should be filed within the written statement, and
the defendant must provide all necessary facts and legal grounds for
the counterclaim.
E. Amendment of Written Statement (Order VI, Rule 17)
 A written statement may be amended at any time before the
judgment is passed, but only with the leave of the court. The court
may allow amendments if it finds that such amendments are
necessary to ensure that the defendant can fully defend the case.
  Late Amendments: Amendments cannot be allowed if they change
the fundamental nature of the defense or the claim.
3. Purpose of a Written Statement
The written statement serves several purposes in civil litigation:
1. Admission and Denial of Facts: It provides an opportunity for the
defendant to admit or deny the facts alleged by the plaintiff in the
plaint. This is critical because it helps define the issues to be
contested in the trial.
2. Framing of Issues: The written statement helps in framing the issues
for trial. These issues are the specific points of dispute between the
parties that need to be resolved by the court.
3. Clarification of Legal Defenses: It allows the defendant to raise legal
defenses, such as the statute of limitations, lack of jurisdiction, or
non-maintainability of the suit.
4. Counterclaims: The written statement may contain counterclaims,
allowing the defendant to seek relief from the plaintiff.
5. Preserving the Right to Contest: The failure to file a written
statement within the prescribed time limit can result in the defendant
losing the opportunity to contest the suit.
4. Contents of a Written Statement
The written statement should include the following essential elements:
1. Title and Cause Title:
o The cause title should state the name of the court, the parties
involved, and the case number.
o The title should clearly identify the suit and the defendant's
response.
2. Preliminary Submissions:
o The defendant may raise preliminary objections such as the
non-maintainability of the suit, lack of jurisdiction, or failure
to comply with procedural requirements.
3. Specific Denial of Allegations:
o The defendant should clearly and specifically admit or deny
each of the allegations made by the plaintiff in the plaint. Each
denial should be based on facts, and vague or evasive denials
should be avoided.
4. Counterclaims (if any):
 o If the defendant has any claims against the plaintiff arising
from the same transaction, these should be included as
counterclaims in the written statement. Counterclaims should
specify the relief sought.
5. Legal Defenses:
o The written statement should specify any legal defenses the
defendant intends to raise, such as the applicability of the
statute of limitations or other substantive legal issues.
6. Prayer Clause:
o The prayer clause at the end of the written statement should
state the relief sought by the defendant, such as the dismissal
of the suit, or any other relief sought.
7. Verification:
o The written statement should be verified by the defendant,
either personally or through an authorized agent, affirming that
the contents are true and correct to the best of their knowledge
and belief.
5. Role of Written Statement in Litigation
1. Framing of Issues: After the written statement is filed, the court will
frame issues, which are the points of law or fact that need to be
resolved. This helps streamline the trial process by focusing on the
contested points.
2. Narrowing Down the Dispute: By admitting or denying the facts, the
defendant helps to narrow down the scope of the dispute, which
makes the trial more efficient.
3. Right to Contest: The written statement is the defendant’s
opportunity to contest the plaintiff’s allegations and to present their
own case.
4. Preparation for Trial: The written statement, along with the plaint,
forms the basis for the preparation of the trial. Both parties use the
written statement to formulate their strategies and gather evidence.

6. Consequences of Failing to File a Written Statement

1. Ex-Parte Proceedings: If the defendant does not file the written
statement within the prescribed time limit, the court may proceed
with the trial ex-parte, meaning without hearing the defendant's side.
This can result in a default judgment against the defendant.
 2. Deemed Admission: If the defendant does not deny a fact or
allegation specifically, it may be deemed as admitted, which can
severely weaken their case.
3. Limited Defences: If a defendant fails to file a written statement,
they may not be allowed to raise certain defences later in the trial.

7. Case Laws and Judicial Interpretation

1. Badat & Co. v. East India Trading Co. (1964)
In this case, the Supreme Court held that if the defendant does not
specifically deny the allegations in the plaint, the court will treat them as
admitted. This reinforces the need for clear and specific denials in the
written statement.
2. Salem Advocate Bar Association v. Union of India (2005)
The Supreme Court addressed the issue of time limits for filing the written
statement and clarified that the court has the discretion to extend the time
for filing the written statement up to 90 days if the defendant shows
sufficient cause.
3. Usha Balashaheb Swami v. Kiran Appaso Swami (2007)
The court held that amendments to the written statement should be
allowed if they do not change the fundamental nature of the defense or
claim.

8. Conclusion
The written statement is a critical component of civil litigation under the
CPC. It serves to admit, deny, or clarify the allegations made by the
plaintiff, raise defenses, and counterclaims, and generally shape the course
of the trial. Filing a written statement on time and ensuring that it is
complete and accurate is crucial for a defendant to effectively participate
in the legal proceedings and preserve their rights.
The rules governing written statements under Order VIII of the CPC
ensure that civil litigation remains fair, transparent, and just, by providing
both parties an opportunity to present their version of the case. Therefore,
understanding the importance of the written statement and complying with
the procedural requirements is essential for anyone involved in a civil suit.
Following are the differences between a plaint and a written statement:-
S.
PLAINT WRITTEN STATEMENT
No.

The document stating

the cause of action and
other necessary details The defence statement containing all
1. and particulars in material facts and other details is
support of the claim of called the “written statement”.
the plaintiff is called the
“plaint”.

The written statement is filed by the

defendant as an answer to the
Plaint is filed by the
contentions of the plaintiff and it
plaintiff stating its facts
2. contains all materials and other
and relief to be claimed
objections which the defendant might
by the plaintiff.
place before the court to admit or
deny the claim of the plaintiff.

The defendant is required to file a

Plaint is the first stage in
written statement of his defense
a civil suit setting the
3. within 30 days from the date of
legal machinery in
receipt of the copy of the plaint. This
motion.
time period is extendible to 90 days.

A plaint is usually
divided in parts such as A general denial of grounds alleged
a heading, the cause in the plaint is not sufficient and
4. title, the body, the prayer denial has to be specific and must be
and signature and substantiated with documentary
verification of the evidence wherever possible.
plaintiff.
 S.
PLAINT WRITTEN STATEMENT
No.

Every allegation of fact in the plaint

Plaint should contain if not denied specifically or by
5. name, description and necessary implication or stated to be
residence of defendant. not admitted in the pleading shall be
deemed to be admitted.

Order VII of Civil

Order VIII of Civil Procedure Code,
6. Procedure Code, 1908
1908 deals with written statement.
deals with plaint.
Drafting a Written Statement
Following are the important points which should be kept in mind while
drafting a written statement:—
1. If the plaint has raised a point/issue which is otherwise not admitted
by the opposite party in the correspondence exchanged, it is
advisable to deny such point/issue and let the onus to prove that
point be upon the complainant. In reply, one has to submit the facts
which are in the nature of defence and to be presented in a concise
manner.
2. Attach relevant correspondence, invoice, challan, documents,
extracts of books of account or relevant papers as annexures while
reply is drafted to a particular para of the plaint;
3. The reply to each of the paras of the plaint be drafted and given in
such a manner that no para of the plaint is left unattended.
Vinod Kumar v. Surjit Kumar AIR 1987 SC 2179
“The pleadings are foundations of a case”.
4. The reply/written statement should be supported by an Affidavit of
the opposite party. The Affidavit to be sworn by any of the persons
aforesaid and duly notorized by an Oath Commissioner. The court is
bound to see in every case that the pleadings are verified in the
manner prescribed and that verifications are not mere formalities.
5. The reply along with all annexures should be duly page numbered
and be filed along with authority letter if not previously filed.
6. At the time of filing of reply, attach all the supporting papers,
documents, documentary evidence, copies of annual accounts or its
 relevant extracts, invoices, extracts of registers, documents and other
relevant papers.
7. I any of the important points is omitted from being given in the
reply, it would be suicidal as there is a limited provision for
amendment of pleadings as provided in Order 6, Rule 17 CPC, and
also the same cannot be raised in the Affidavit-in-Evidence at the
time of leading of evidence.
Mrs. Om Prabha Jain v. Abnash Chand Jain AIR 1968 SC 1083;
1968 (3) SCR
“It is a settled law if any point has not been pleaded in the
pleadings, no evidence could be led on that point. General rule is
that no pleadings, no evidence.”
8. If a party is alleging fraud, undue influence, coercion or mis-
representation, general allegations are insufficient. Party must state
the requisite particulars in the pleading.
9. It is well settled that neither party need in any pleadings allege any
matter of fact which the law presumes in his favour or as to which
the burden of proof lies upon the other side unless the same has first
been specifically denied.
10. In every pleading, one must state specifically the relief which
the party is claiming from the court or tribunal or forum. All possible
relief as would be permissible under the pleadings and the law.
Conclusion:
A written statement is Defendant’s first opportunity to raise his point of
view in the suit on the matter at issue. But if, for whatever reason or
circumstances, Defendant did not file a written statement, that would not
indicate that he had admitted the fact pleaded by the plaintiff. A written
statement is the statement of the defendant in his
defence in which he either admits the claims or https://www.writinglaw.com/
denies the facts alleged by plant leaf in his plaint. reference-review-and-revision-in-
The defendant can State New facts of the case and cpc/
legal objections against the claim asked by the plaintiff.

Que. Explain the Reference," "Review," and "Revision in details

In civil procedure, "Reference," "Review," and "Revision" are important
legal tools used to provide guidance, correct errors, and ensure judicial
oversight. Each plays a specific role within the judicial hierarchy to ensure
accuracy, consistency, and fairness in judicial proceedings. Let's go into
more detail about each:

1. Reference
Purpose: The purpose of "Reference" is to allow subordinate courts
(lower courts) to refer specific legal questions to a higher court when they
face complex or uncertain points of law during ongoing proceedings. This
mechanism helps avoid misinterpretation of law by allowing the lower
court to seek guidance on the legal question at issue.
Applicable Law: The rules for Reference are typically provided in
sections within the Code of Civil Procedure (for example, Section 113 of
the Indian Civil Procedure Code), which governs civil court processes.
Key Features of Reference:
 Initiation: Reference is initiated by a subordinate court on its own,
without any request from the parties in the case. However, a party in
the case can request the court to make a reference if it believes there
is a serious question of law that requires higher court interpretation.
 Scope: Only questions of law, not questions of fact, can be referred.
For instance, the lower court may ask for guidance on interpreting a
statutory provision that is unclear or ambiguous.
 Procedure: The subordinate court drafts the legal question and
submits it to a higher court (usually a High Court or the Supreme
Court, depending on the jurisdiction) along with relevant case
details.
 Outcome: The higher court issues its opinion on the legal question,
and the subordinate court must apply this guidance in deciding the
case. The Reference does not transfer the entire case; it only seeks
clarification on the specific legal question.
Example:
A district court may refer a case to the High Court if it encounters an
ambiguous legal provision that impacts the case’s outcome, asking the
High Court for an interpretation of the law before proceeding.

2. Review
Purpose: The purpose of "Review" is to allow the same court that issued a
judgment or order to reconsider its decision if specific grounds are met. It
enables the court to correct apparent mistakes, prevent injustice, or
consider newly discovered evidence that was not available during the
original trial.
Applicable Law: Review procedures are typically governed by statutory
codes (such as Order 47 of the Indian Civil Procedure Code) and may be
restricted in scope to prevent misuse.
Grounds for Review:
 Error Apparent on the Face of the Record: If the judgment has a
clear legal error that’s immediately evident from the record, the court
may review it.
 Discovery of New Evidence: If important evidence, not known or
available during the initial trial, emerges after the judgment, a
review may be considered.
 Other Sufficient Reason: Courts may also allow review for
compelling reasons that justify re-evaluation, though this is usually
limited to prevent frivolous reviews.
Key Features of Review:
 Initiation: The review can be requested by a party involved in the
case or, in rare cases, taken up by the court itself if it realizes an
error.
 Scope: Limited to specific errors; a review is not a re-evaluation of
the entire case but rather a reconsideration of specific issues that
justify correction.
 Outcome: The court may uphold, modify, or reverse its original
judgment or order based on its findings during the review.
Example:
If a court grants a judgment based on an interpretation of law, and it’s later
realized that a binding precedent was overlooked, the court may review
the judgment to correct this error.

3. Revision
Purpose: "Revision" allows a higher court to examine and, if necessary,
correct the procedural and jurisdictional aspects of a decision made by a
subordinate court. It acts as a supervisory tool to ensure that lower courts
operate within their legal authority and follow correct procedures.
Applicable Law: Revisions are often governed by specific statutory
provisions (e.g., Section 115 of the Indian Civil Procedure Code) that
outline when and how a higher court can take up a revision.
Grounds for Revision:
 Jurisdictional Error: When a subordinate court has exercised
jurisdiction it doesn’t have or failed to exercise jurisdiction it should
have.
 Material Irregularity or Illegality: If a court has conducted
proceedings in a manner that seriously violates legal procedure or
involves a significant error in law that affects the outcome.
 Failure of Justice: Revisions are permitted if the error has led to a
miscarriage of justice, which calls for intervention by a higher court.
Key Features of Revision:
 Initiation: Typically, a party files a revision petition to a higher
court when it believes a lower court’s decision suffers from serious
procedural or jurisdictional flaws. However, some higher courts can
take up revision cases on their own (suo moto).
 Scope: Revision is more limited than an appeal and focuses
primarily on jurisdiction and procedure, rather than re-assessing
evidence or facts.
 Outcome: The higher court may confirm, modify, or annul the lower
court’s decision. It may also send the case back to the lower court for
re-trial if procedural errors are found.
Example:
If a trial court takes up a case outside its jurisdiction and makes a ruling,
an aggrieved party may file for revision in a higher court, asking it to
annul the ruling on the grounds of jurisdictional overreach.

Key Differences Between Reference, Review, and Revision

Feature Reference Review Revision
The same court
Initiated Subordinate Higher court or party filing
that issued the
By court petition
judgment
Seek Correct specific Correct
Purpose clarification on errors in jurisdictional/procedural
legal question judgment errors
Limited to
Questions of obvious errors Jurisdictional and procedural
Scope
law only or new issues
evidence
Feature Reference Review Revision
Judgment may
Opinion from Lower court decision may be
Outcome be modified or
higher court modified or annulled
upheld
Nature Advisory Corrective Supervisory
These mechanisms ensure that lower courts stay within their jurisdiction,
follow correct legal procedures, and make legally sound judgments. They
are essential for upholding the rule of law and providing avenues for
redress when errors are made in the judicial process.
In civil procedure, Reference, Review, and Revision are mechanisms
available to parties for challenging court decisions. Here’s a summary of
each, along with their differences:
1. Reference
 Purpose: When a lower court or tribunal encounters a question of
law that it finds difficult or complex, it can refer the question to a
higher court for guidance.
 Who can initiate: Only the subordinate court or tribunal.

 Outcome: The higher court provides an opinion on the question of

law, which the referring court must then apply in resolving the case.
 Scope: Limited to questions of law and does not examine the entire
case.
2. Review
 Purpose: Allows a court to reconsider its own decision if new
evidence or an error apparent on the face of the record is found.
 Who can initiate: Either the court itself (suo motu) or an aggrieved
party.
 Outcome: The court can uphold, modify, or reverse its own previous
decision.
 Scope: Limited to the same court and often requires clear evidence
of a significant error.
3. Revision
 Purpose: Enables a higher court to examine a lower court's order to
ensure there was no jurisdictional error or material irregularity.
 Who can initiate: An aggrieved party, usually through a petition to a
higher court.
  Outcome: The higher court can confirm, modify, or reverse the
order or direct the lower court to re-examine the case.
 Scope: Limited to jurisdictional and procedural errors, not re-
assessment of factual findings.
Differences
Aspect Reference Review Revision
The same court
Initiated Lower court or An aggrieved party to a
or an aggrieved
By tribunal higher court
party
Correction of Ensure no
Clarification on
Purpose errors apparent jurisdictional/procedural
a question of law
on the record error
Limited to the
Limited to Limited to errors in
Scope court's own
questions of law jurisdiction or procedure
decisions
Decision can be
Opinion given modified, Order can be modified,
Outcome
for guidance upheld, or upheld, or reversed
reversed
Referring court Same court re-
Court Higher court examines
seeks higher evaluates its
Involved lower court's order
court's opinion decision
These mechanisms provide avenues to rectify errors without a full appeal,
keeping the judicial process efficient and balanced.

Que. What is Limitation Act 1963? Introduction, Scheme of

Limitation Act, Aim & Objective
Introduction to Limitation Act 1963
The Limitation Act 1963, is a crucial piece of legislation in India that sets
time limits within which a person brings a legal action. Its primary
purpose is to ensure that claims are made within a reasonable time frame
to prevent the unfairness that can arise from stale claims and to ensure that
evidence remains fresh and reliable. In its literal terms, the word limitation
means a restriction or the rule or circumstances which are limited.
The Limitation Act was enforced on 1st January 1964 and extends to the
whole of India. It includes a total of 5 parts and 32 sections. To provide a
period of limitation, the act contains 137 Articles. The act describes the
time frame within which legal actions must be initiated in civil cases.
Limitation Act 1963 ensures that the concerned parties must not resort to
dilatory tactics and avail the remedy promptly.
Limitation Act 1963 is based on “It Bars Remedy, But Does Not
Extinguish Right”. It means that it sets a time limit for legal actions. The
maxim “vigilantibus non dormientibus jura subveniunt” underpins the
Limitation Act 1963, meaning that law assists those who are vigilant to
their rights and not those who sleep over their rights.
The objective of the Limitation Act 1963 understates “interest republicae
ut sit finis lituim” which means that it is in the interest of the state that
there must be an end to litigation. Under Section 2(j) of the Limitation Act
1963, the “period of limitation” means the time prescribed for any suit,
appeal, or application as outlined in the Schedule, while the “prescribed
period” means the period computed in accordance with the provisions of
this Act.
What is the Objective & Aim of Limitation Act 1963?
The Limitation Act 1963, aims to ensure the timely and efficient
administration of justice by imposing strict time limits within which legal
claims must be made. Its primary objective is to prevent the revival of
stale claims and to encourage litigants to pursue their grievances promptly.
By setting clear timeframes for initiating suits, appeals, and applications,
the Act seeks to promote legal certainty and stability, thereby safeguarding
the interests of defendants and ensuring that evidence remains fresh and
reliable.
Additionally, the Act recognizes that delays in filing claims can undermine
the integrity of legal proceedings and can cause significant hardship to
parties. It provides specific provisions for extending limitation periods
under certain circumstances, such as fraud or disability, thereby balancing
the need for finality with fairness. The Act aims to streamline the judicial
process, reduce the backlog of cases, and enhance the efficiency of the
legal system.
1. Objective and Purpose of the Act
  The Limitation Act aims to create a time frame for parties to seek
relief from the courts and to prevent stale claims from clogging the
judicial system.
 It promotes diligence among litigants by preventing indefinite delays
in filing lawsuits.
 The Act ensures fairness in the legal process by protecting
defendants from having to answer old claims where evidence may
have degraded over time.
2. Structure of the Limitation Act, 1963
The Act contains:
 Provisions (Sections 1–32): These sections detail rules and
guidelines for computation of limitation periods, exclusions,
extensions, and other aspects of limitation.
 Schedules (The Schedule): Lists specific limitation periods for
different types of civil suits, appeals, and applications.
3. Key Definitions (Section 2)
 ‘Period of Limitation’: The timeframe within which legal action
must be initiated, as specified in the Schedule.
 ‘Prescribed Period’: The period specified in the Schedule for filing
any suit, appeal, or application.
 ‘Applicant’ and ‘Suit’: Terms defined to clarify the types of legal
actions covered under the Act.
4. Limitation Periods for Various Types of Cases
The Act categorizes limitation periods based on the nature of the action:
 Suit for Recovery of Land or Movable Property: The limitation
period is generally 12 years.
 Contractual and Tort Claims: Typically, the limitation period for
suits relating to contracts, torts, or other personal injuries is 3 years.
 Mortgages: Suits for recovery of mortgage money have a limitation
period of 12 years.
 Execution of Decrees: The limitation for filing an application for
execution of decrees is generally 12 years.
 Appeals: Usually, a 90-day limitation period applies, but this may
vary depending on the type of appeal.
5. Computation of Limitation Period (Sections 12–24)
 Section 12: Time excluded from the limitation period includes the
day the judgment was pronounced or the order was given, the time
 needed to obtain copies of judgments, orders, and decrees, and
certain intervals in specific situations.
 Section 13: Time when the defendant or applicant was out of India
or unreachable is excluded.
 Section 14: Time spent in prosecuting a case in good faith in the
wrong jurisdiction can be excluded.
 Section 15: Certain situations, such as injunctions or orders, prevent
the running of the limitation period.
 Section 16: When a person is a minor, insane, or has a legal
disability at the start of the limitation period, the time does not begin
until the disability ends.
6. Extension of Limitation Period (Section 5)
 ‘Sufficient Cause’: Courts can allow delays in filing appeals or
applications if the applicant shows sufficient cause for the delay.
 This provision gives courts discretionary power to permit late filings
if justified by valid reasons, such as illness or other uncontrollable
circumstances.
7. Legal Disability (Section 6–7)
 Section 6: If the person entitled to sue or file an appeal or
application is a minor, insane, or otherwise legally disabled, the
limitation period does not start until the disability ends.
 Section 7: If there are multiple parties entitled to file and one is
disabled, others without disabilities can file.
8. Acknowledgment and Effect on Limitation Period (Sections 18–19)
 Section 18: If the defendant acknowledges a debt or liability in
writing, the limitation period can restart from the date of
acknowledgment.
 Section 19: Part payments towards debts or interest also restart the
limitation period.
9. Adverse Possession and Limitation Period (Section 27)
 Adverse possession, where a person who possesses land openly and
without challenge may eventually gain legal ownership, is governed
by limitation periods.
 For example, if a property owner fails to assert their ownership
rights within a certain period (usually 12 years), they may lose their
rights to the adverse possessor.
10. Impact of Expiration of Limitation Period
  Once the limitation period expires, the right to file a suit,
application, or appeal is generally lost.
 Courts are bound by the limitation periods unless a specific
provision allows for an extension.
11. Special Provisions in the Limitation Act, 1963
 Section 29: If a specific law prescribes a different limitation period
than the Limitation Act, the specific law will apply.
 Section 30: For certain claims barred under the Limitation Act,
additional time may be provided for filing under the new law.
12. Schedules and Specific Timeframes
 The Schedule appended to the Limitation Act specifies the
limitation periods for various types of cases. It includes time limits
for suits related to contracts, torts, trusts, execution of decrees, and
more.
 Each entry in the Schedule describes the type of suit, the limitation
period, and when the limitation period starts.
13. Judicial Interpretations and Case Law
 The interpretation of "sufficient cause" under Section 5,
acknowledgment under Sections 18 and 19, and other provisions
have been shaped by court decisions over time.
 The Supreme Court of India and various High Courts have clarified
and, in some cases, broadened or restricted certain aspects of the
Limitation Act.
14. Conclusion
The Limitation Act of 1963 serves as a critical legal mechanism for
ensuring timely justice. By setting timeframes for different types of cases
and offering provisions for extensions or exclusions in exceptional
circumstances, it balances the rights of litigants with the need for
efficiency and finality in the legal process.

QUE . The Limitation Act, 1963: A Comprehensive Overview

Introduction
 The need for legal time limits: Ensures justice is sought promptly,
preserves evidence integrity, and maintains fairness. Evolution of
limitation laws in India: Tracing from earlier laws to the codification
under the 1963 Act.
Objectives of the Act: Prevent indefinite litigation, encourage diligence,
and provide legal certainty.
Purpose of the Limitation Act
1. Timely Resolution of Disputes: Prevents delays in justice and
ensures fresh evidence and testimonies.
2. Legal Certainty: Provides clear timelines to reduce ambiguity and
protect defendants from prolonged liability.
3. Encouragement of Vigilance: Motivates claimants to act promptly
rather than neglect their rights.
4. Bar on Remedy, Not Right: The law bars remedies in court but
does not extinguish the substantive rights.

Salient Features of the Limitation Act

1. Applicability: Applies to civil suits, appeals, and applications except
those governed by special laws. Does not apply to criminal matters
directly but influences procedural aspects in some cases.
2. Defined Time Limits: Specific periods for various actions, e.g., 3
years for contracts, 12 years for property recovery.
3. Commencement of Limitation: Begins when the cause of action
arises, except in cases involving fraud or disabilities.
4. Extensions and Exceptions: Provisions for excluding certain
periods, e.g., time under legal disability or pursuing remedies in
wrong forums.
5. Strict Enforcement: Courts cannot entertain claims after the
limitation period, except under specific conditions.

Key Provisions of the Act

1. Section 3: Bar of Limitation: Courts must dismiss suits or
applications filed beyond the limitation period.
2. Section 5: Extension for Sufficient Cause: Delays in appeals and
applications can be condoned if justified by sufficient cause.
3. Section 6-8: Legal Disabilities: Provides relief when claimants are
minors, mentally incapacitated, or under similar disabilities.
4. Section 12-15: Exclusions in Computation: Excludes certain
periods, such as time spent obtaining copies of judgments or
pursuing remedies in incorrect forums.
5. Section 18: Acknowledgment of Liability: Written
acknowledgment within the limitation period restarts the clock.
 6. Section 19: Part Payment: Partial repayment by the debtor also
restarts the limitation period.
7. Section 17: Fraud and Mistake: Extends the limitation period from
the time fraud or mistake is discovered.
8. Schedule: Details specific timelines for different types of cases.
Classification of Limitation Periods
 Suits Relating to Movable and Immovable Property: E.g., 12
years for property recovery.
 Contracts and Torts: Typically 3 years for breach of contract or tort
claims.
 Enforcement of Decrees: 12 years to enforce court judgments.
 Special Situations: 30 years for suits by the government.
Extension and Exclusion Principles
1. Legal Disabilities: Protection for minors, insane persons, and others
under disability.
2. Sufficient Cause: Flexibility to accommodate genuine delays in
appeals or applications.
3. Exclusions: Excludes time when legal obstacles exist, e.g., ongoing
negotiations or time spent in the wrong jurisdiction.
Judicial Interpretation
 Important cases that shaped the understanding of the Act:
o A.C. Thirulokchandar v. State of Gujarat: Emphasis on
strict adherence to limitation periods.
o Collector of Central Excise v. H.M.M. Ltd.: Interpretation of
sufficient cause.
o Balakrishna v. M.A. Krishna: Fraud cases and delayed
discovery.
Conclusion
The Limitation Act, 1963 plays a vital role in India’s legal framework by
promoting timely resolution of disputes and reducing uncertainty. While
its rigid timelines sometimes attract criticism, its exceptions and judicial
interpretations offer a balance between fairness and legal efficiency. By
ensuring justice within a defined period, the Act upholds the principle that
"law helps the vigilant, not those who sleep on their rights."
Que. what is legal disability? state the protection provided under the
limitation act, to person suffering from legal disability and its
extent ??

Legal disability refers to a condition that prevents a person from taking

legal action within the prescribed limitation period due to certain
incapacities recognized by law. The Limitation Act, 1963, provides
special protection to individuals who are unable to act on their own behalf
because of such disabilities.

Definition of Legal Disability

As per Section 6 of the Limitation Act, legal disability includes:

1. Minority: A person who has not attained the age of majority

(usually 18 years, or 21 years if under a court-appointed guardian as
per the Indian Majority Act, 1875).
2. Insanity: A person who is mentally incapacitated and unable to
understand legal proceedings.
3. Idiocy: A person who lacks mental capacity due to permanent or
temporary idiocy.

Implications of Legal Disability

a. Protection of Vulnerable Groups - Ensures that minors and

mentally incapacitated individuals are not deprived of their rights
due to procedural timelines.
b. Extension of Timeframes - Allows a fair opportunity to bring
claims or seek remedies even after the regular limitation period
ends.
c. Balancing Justice - Prevents exploitation of the limitation rules
against those who cannot act on their own behalf.
d. Joint Claims - Protects the interests of disabled co-claimants
without adversely affecting the rights of others.

Protection Under the Limitation Act

The Act provides protection to individuals suffering from legal disability

through the following provisions:
1. Section 6: Extension of Limitation for Persons Under Legal
Disability

 Key Provisions:
o If a person is under a legal disability (e.g., a minor or mentally
incapacitated) when the cause of action arises, the limitation
period does not start until the disability ceases.
o If the person dies while under a disability, their legal
representative can initiate the legal action after the disability
ends.
o The maximum extension for a legal disability cannot exceed
the period prescribed under the Act, except as outlined in
special cases.
 Illustration:
o If a minor's property is illegally occupied when they are 15
years old, the limitation period will begin only when the minor
turns 18.

2. Section 7: Disability in Multiple Parties

 If several persons are entitled to take legal action, and one of them is
under a legal disability, others who are not disabled can file the suit
within the regular limitation period.
 The person under disability, however, is protected and can initiate
action after their disability ceases.
 Example:
o If a property is co-owned by two individuals, one of whom is a
minor, the adult co-owner can file a suit immediately. The
minor can file a separate suit after attaining majority.

3. Section 8: Maximum Limitation Period

 A person under a disability cannot initiate legal action beyond a

specific maximum period (3 years) after the disability ceases.
 Exception: This rule does not apply to suits related to immovable
property owned by a minor.

Extent of Protection
 1. Time Begins After Disability Ends: The limitation period is
deferred until the disability ceases, ensuring that vulnerable
individuals are not deprived of their right to legal recourse.
2. Applicable to All Civil Suits: The protection applies broadly to all
suits and applications covered under the Limitation Act.
3. Relief in Joint Claims: Provides a safeguard in cases involving joint
rights where one or more parties are under a disability.
4. No Bar for Legal Representatives: Legal heirs or representatives
can file a suit within the limitation period even if the person under
disability passes away.

Illustrative Case Laws

1. Kamla Devi v. Baburam (1997)

o The court ruled that the limitation period starts only after the
minor attains majority, protecting their rights during the period
of disability.
2. Mohammad Noor v. Mohd Ibrahim (1991)
o Acknowledged that the right to sue for a mentally
incapacitated person starts from the date of recovery from the
disability.
3. Ranganayaki Ammal v. S.R. Jambunatha Mudaliar (1975)
o Reaffirmed that disability provisions are intended to prevent
unfair disadvantage to vulnerable individuals.

Limitations and Challenges

1. Delayed Justice: Deferring the limitation period can lead to delays

in dispute resolution.
2. Overlapping Disabilities: Determining the end of overlapping
disabilities, such as minority and mental incapacity, can be complex.
3. Abuse of Provisions: Claims of disability may be misused to extend
limitation unjustly.

Conclusion

The Limitation Act, 1963, through Sections 6-8, ensures that individuals
suffering from legal disabilities are not unfairly deprived of their right to
legal recourse. By pausing the limitation period until the disability ceases,
the Act strikes a balance between justice and efficiency. However, strict
enforcement and judicial oversight are necessary to prevent misuse of
these provisions.
Injunction in the Code of Civil Procedure (CPC)
An injunction is a court order that directs a person to do or refrain
from doing a specific act. It is a vital legal remedy aimed at
preventing irreparable harm or injury. The Code of Civil Procedure,
1908 (CPC) governs the issuance of injunctions in civil disputes under
Order XXXIX (Temporary Injunctions) and Section 94(c) and (e),
along with Section 151 for inherent powers.

Types of Injunctions
Injunctions are generally classified into the following categories:
1. Temporary Injunction
 A temporary injunction is issued for a limited period or until the
final disposal of the suit.
 It aims to maintain the status quo between the parties during the
pendency of the case.
 Governed by Order XXXIX Rules 1-5 of CPC.
2. Perpetual or Permanent Injunction
 A permanent injunction is issued as a final relief after the trial is
completed.
 It is governed by Sections 38-42 of the Specific Relief Act, 1963.
 It permanently restrains a party from performing certain acts.
3. Mandatory Injunction
 A mandatory injunction requires the defendant to perform a
specific act to undo a wrongful act.
 Governed by Section 39 of the Specific Relief Act, 1963.
4. Prohibitory Injunction
 A prohibitory injunction restrains a party from doing an act that
would harm the rights of the other party.
Temporary Injunction Under CPC
A. Circumstances for Granting Temporary Injunction (Order XXXIX
Rule 1)
The court may grant a temporary injunction under the following
conditions:
1. Property in Dispute: When the property in dispute is in danger
of being wasted, damaged, or alienated.
 2. Wrongful Act: When the defendant threatens to dispose of the
property or commit any act that may harm the plaintiff’s rights.
3. Violation of Rights: When the defendant's act may cause injury
to the plaintiff in a manner that cannot be adequately
compensated.
B. Principles for Granting Temporary Injunction
1. Prima Facie Case: The plaintiff must establish that there is a
strong case in their favor.
2. Irreparable Harm: There must be a likelihood of irreparable
injury that cannot be compensated by damages.
3. Balance of Convenience: The court must assess whether granting
the injunction causes less harm than refusing it.
C. Procedure for Granting Temporary Injunction
 The party seeking an injunction must file an application under
Order XXXIX, along with the plaint.
 Notice is usually given to the opposing party unless the situation
is urgent (ex-parte injunction).
 The court hears both parties and decides whether to grant or
deny the injunction.
Ex-Parte Temporary Injunction (Order XXXIX Rule 3)
An ex-parte injunction can be granted without hearing the opposing
party in urgent cases where:
1. There is an immediate threat of harm.
2. Delay in issuing the injunction may defeat its purpose.
However, the applicant must:
 File an affidavit explaining the urgency.
 Notify the opposing party within a specified time after the
injunction is granted.
Violation of Injunction Order
If a party violates an injunction order, the aggrieved party can
approach the court to enforce it. Under Order XXXIX Rule 2A, the
court may:
1. Attach the violator's property.
2. Sentence the violator to imprisonment for up to 3 months.

Difference Between Temporary and Permanent Injunction

Aspect Temporary Injunction Permanent Injunction
Interim relief during the Final relief after the case is
Nature
pendency of the case. decided.
Restrain a party
Maintain status quo or
Purpose permanently from an
prevent immediate harm.
unlawful act.
Governing Sections 38-42 of the Specific
Order XXXIX CPC.
Law Relief Act, 1963.
Limited to the duration of
Duration Enforceable indefinitely.
the suit.

Sections Related to Injunctions in CPC

Section 94
This section empowers the court to grant temporary injunctions and
other remedies to prevent the ends of justice from being defeated.
Section 151
 Provides inherent powers to the court to issue injunctions when
necessary to prevent abuse of the court’s process or secure
justice.
 Used when no specific provision exists under the CPC.
Mandatory Injunction
A mandatory injunction is an exceptional remedy requiring the
defendant to perform a positive act. For example, removing an illegal
construction. It is governed by Section 39 of the Specific Relief Act
and typically issued only when:
 Compensation is inadequate.
 The defendant's act has caused a significant breach of the
plaintiff's rights.
Landmark Case Laws
1. Dalpat Kumar v. Prahlad Singh (1992):
o The Supreme Court laid down the principles of granting a
temporary injunction: prima facie case, irreparable injury,
and balance of convenience.
2. K.K. Srivastava v. Bhupendra Kumar Jain (1977):
o Clarified that temporary injunctions are discretionary and
must only be granted when the case satisfies the necessary
conditions.
 3. Seema Arshad Zaheer v. Municipal Corporation of Greater
Mumbai (2006):
o The court emphasized that injunctions must not cause
undue harm to either party and should ensure fairness.
4. Gujarat Bottling Co. Ltd. v. Coca-Cola Co. (1995):
o Highlighted that injunctions must protect legal rights
without unfairly restraining lawful activities.
Conclusion
Injunctions are a powerful legal tool in civil disputes. They are used to
prevent harm, maintain status quo, or enforce legal rights effectively.
The CPC provides comprehensive rules under Order XXXIX to
ensure that injunctions are granted only in deserving cases, balancing
the interests of both parties. Proper use of injunctions safeguards
justice, while misuse is curbed through strict conditions and penalties
for violation.
Types of Injunctions with Examples
1. Temporary Injunction (Order XXXIX, CPC)
A temporary injunction is granted for a limited period or until the
court delivers its final judgment. It ensures that the plaintiff's rights
are protected during the pendency of the case.
Example:
 A and B are neighbors. A alleges that B is constructing a wall
that encroaches on A's property. A files a suit claiming
ownership and requests a temporary injunction to stop B from
continuing construction until the dispute is resolved. The court
may grant the temporary injunction to maintain the status quo
and prevent further harm.

2. Permanent Injunction
A permanent injunction is issued as a final judgment in a case,
restraining the defendant from performing an act indefinitely.
Example:
 X owns a factory, and Y operates a polluting plant nearby. The
pollution damages X's factory operations. After a trial, the court
permanently restrains Y from operating the plant in its current
form, issuing a permanent injunction to stop the pollution.
3. Mandatory Injunction
A mandatory injunction directs the defendant to perform a specific
act, usually to undo a wrongful act.
Example:
 P builds a wall blocking Q's access to their home. Q files a suit
seeking a mandatory injunction to have the wall removed. The
court orders P to demolish the wall to restore Q's access.

4. Prohibitory Injunction - A prohibitory injunction restrains a party

from doing something that infringes on the rights of the other party.
Example:
 R plans to cut down a tree on shared property, which S claims is
jointly owned. S seeks a prohibitory injunction to prevent R
from cutting the tree. The court orders R to stop until ownership
is determined.

5. Ex-Parte Temporary Injunction - An ex-parte temporary injunction

is granted without hearing the opposing party when there is an urgent
threat of harm.
Example:
 M owns a piece of land and learns that N, a developer, is about to
demolish it despite a pending dispute. M applies for an ex-parte
injunction, and the court temporarily restrains N from
proceeding with the demolition to prevent irreparable harm.

Principles for Granting an Injunction with Examples

1. Prima Facie Case
o The plaintiff must show that there is a reasonable chance
of success in their claim.
o Example: If the plaintiff has ownership documents for the
disputed property, it establishes a prima facie case for an
injunction against encroachment.
2. Irreparable Harm
o The plaintiff must demonstrate that the harm caused
cannot be compensated by money alone.
o Example: If a historical monument is at risk of demolition,
the damage would be irreparable as its value cannot be
monetized.
 3. Balance of Convenience - The court evaluates whether granting
the injunction causes less harm than refusing it.
o Example: If stopping construction on disputed land
inconveniences the defendant but prevents permanent
damage to the plaintiff's property rights, the balance of
convenience favors the plaintiff.

Procedure for Obtaining an Injunction

1. Filing the Suit: The plaintiff files a suit and includes an
application for an injunction with an affidavit supporting the
claim.
2. Hearing the Application:
o The court issues a notice to the defendant.
o In urgent cases, the court may grant an ex-parte injunction
without hearing the defendant.
3. Interim Order: The court may grant or refuse the temporary
injunction based on evidence.

Violation of Injunction with Example - If a party violates an

injunction order, the aggrieved party can seek enforcement under
Order XXXIX Rule 2A of CPC. The violator may face attachment of
property or imprisonment.
Example:
 If a court restrains D from cutting trees on disputed land, but D
disregards the order and cuts the trees, the court can impose
penalties and even order compensation to the plaintiff.

Res Judicata and Res Sub Judice

The legal concepts of Res Judicata and Res Sub Judice are
fundamental principles in the field of law that serve to ensure justice,
efficiency and finality in the judicial process. These doctrines play
critical roles in preventing the misuse of judicial resources, protecting
parties from repeated litigation and promoting consistency in judicial
decisions.
This article explores and highlights the key differences between Res
Judicata and Res Sub Judice, shedding light on their respective
purposes, scopes and implications in the pursuit of a fair and efficient
legal system.
 Res Judicata
Res Judicata, a phrase of Latin origin, pertains to a legally settled
case. The concept of res judicata serves to bar any further litigation on
the same matter involving the same parties, once a case has been
conclusively resolved and a final judgment has been delivered, leaving
no room for any further appeals.
 Res Sub Judice
Res Sub judice, a Latin maxim meaning “under judgment,” is a legal
principle rooted in public policy. It prohibits a plaintiff from initiating
two simultaneous claims on the same subject matter, thereby
preventing the possibility of conflicting rulings from different courts.
The theory of Res Sub judice serves the purpose of avoiding
redundant legal processes and ensuring consistency in judicial
decisions.
 Meaning and Definition
1. Res judicata
Res judicata is derived from the Latin phrase “res judicata pro
veritate accipitur,” which means a matter adjudged is accepted as true
and final. It originated in English common law, which emphasised the
idea of judicial uniformity. The doctrine was initially incorporated
from common law into the Code of Civil Procedure and later adopted
into the Indian legal system. Section 11 of the CPC deals specifically
with the provision of res judicata.
Under this doctrine, a court cannot entertain any suit that has already
been adjudicated on similar facts and issues in a previous suit. The
proceedings must have taken place in a competent court under a
similar title. The doctrine, also known as claim preclusion, prevents
parties from initiating new legal actions against the same parties over
the same facts and grounds. It aims to prevent the abuse of legal
processes and harassment by parties who might file similar suits
multiple times.
The doctrine of res judicata is founded on several maxims, which are
as follows:
Nemo debet lis vexari pro eadem causa:
This maxim, nemo debet lis vexari pro eadem causa, emphasises that
no person should be vexed or tried twice for the same cause of action.
It applies to both civil and criminal cases and aims to bring finality to
the litigation process. This principle is also reflected in Article 20(2) of
the Indian Constitution, which ensures that no person shall be
prosecuted and punished more than once for the same offence.
Interest republicae ut sit finis litium:
The meaning of this maxim is that there should be an end to litigation
because it serves the interests of the nation. Continuously allowing
parties to relitigate the same issues can lead to a waste of judicial
resources and can disrupt the social order. Res judicata helps in
achieving judicial certainty and stability in legal matters.
Res judicata pro veritate occipitur:
This maxim emphasises that a judicial decision must be accepted as it
stands. Once a matter has been adjudicated and a final judgment
rendered, it should be considered as the truth. The purpose of res
judicata is to prevent parties from re-litigating the same issues and to
give conclusive effect to the prior decision.
2. Res sub judice
The term ‘res’ in Latin means matter and ‘sub judice’ means under
consideration. Therefore, the doctrine of res sub judice refers to a
matter that is still under consideration by the court. Section 10 of the
Civil Procedure Code (CPC) states that no court can initiate
proceedings between the same parties on the same issues that are
directly or subsequently in question in a pending suit before a
competent court.
The objective of the doctrine is to stay the proceedings when multiple
cases are filed in the same court involving the same parties and issues.
It aims to avoid wasting the court’s time, prevent contradictory
decisions and protect parties from unnecessary court proceedings and
harassment.
The doctrine of res sub judice is applicable to trials, appeals and
revisions. However, it does not bar a court from issuing temporary
orders like injunctions or stays.
 Purpose
Res Judicata
  Restricts re-litigation and prevents the same matter from being
tried again between the same parties.
 Saves time and resources of the court by avoiding repeated trials
on the same issue.
 Provides protection to the defendant from repeated harassment
and potential double jeopardy.
 Brings finality to the matter and puts an end to the litigation
process.
 Avoids conflicting judgments and promotes consistency in
judicial decisions.
Res Sub Judice
 Saves the judiciary’s time by preventing unnecessary suits.
 Allows the plaintiff to address all issues and facts against the
same defendant in a single suit.
 Avoids contradictory decisions on the same matter by preventing
courts with concurrent jurisdiction from hearing two parallel
lawsuits.
 Protects the defendant from facing multiple claims on the same
subject matter.
 Prevents confusion that could arise from multiple ongoing suits
on the same issue.
 Essentials
Res Judicata
 One former and one subsequent suit must be filed.
 The matter in the subsequent suit must be directly and
substantially related to the matter in the former suit.
 The parties involved in the subsequent suit must be the same or
similar to the parties in the former suit.
 The titles of both suits should be the same or similar.
 The suit must be filed in a competent jurisdiction.
 The court must have previously heard and decided the issue that
is directly and substantially in question in the subsequent suit.
Res Sub Judice
 There must be two civil suits between the same parties.
 The former suit is pending before the competent court when the
subsequent suit is brought.
  The subsequent suit is filed under a similar title to the former
suit.
 Section 10 of the Code of Civil Procedure does not apply if the
suit is pending in a foreign court.
 Section 10 applies if a subsequent application is filed before the
Tahsildar while the suit is pending before the court.
 The date of the presentation of the plaint is considered for
the institution of the suit and the appeal is also included in the
suit.
 The court must have the inherent power to stay the proceedings.
 A decree passed in violation of Section 10 will be null and void.
 The parties have the right to waive their rights under Section 10.
 The court has the power to pass interim orders.
 Exceptions
Res judicata
The doctrine of res judicata prevents parties from reinitiating
litigation; however, there are specific circumstances when this
doctrine does not apply:
 When the decree and order have been obtained through fraud or
misrepresentation of facts or issues.
 When the judgment is not pronounced on the merits of the case.
 When the special leave petition was dismissed without a
proclamation or determination of the judgment.
 When the subsequent lawsuits have a different cause of action,
the court cannot dismiss it based on res judicata.
 When the court lacked competent jurisdiction in the former suit.
 When there is a question of law involved.
 When an interlocutory order was passed in a former suit.
 If there has been an amendment to the existing law that grants
new rights to the party, then the doctrine will not apply.
 When the suit was dismissed by default.
 If the party does not raise a plea for res judicata.
Res sub judice
The doctrine of res sub judice does not apply in certain cases,
including:
 When the claims in each suit are unique and distinct from one
another.
  When there are both common and unique issues in the cases, the
doctrine may not apply.
 When different issues are involved between the same parties.
 It is not necessary to raise all issues from the earlier suit in the
later litigation for Section 10 to be applicable.
 Important Difference Between Res Judicata and Res Sub Judice
Here’s table summarising the differences between Res Judicata and
Res Sub Judice:
Aspect Res Judicata Res Sub Judice

“Matter adjudged and “Matter still under

Meaning
accepted as final” consideration”

To prevent re-litigation To avoid parallel proceedings

Purpose
and bring finality and save time

After a case has been When a case is still pending

Applicability
conclusively decided before a court

Nemo debet lis vexari Interest republicae ut sit finis

Key Maxims
pro eadem causa litium

Interest republicae ut sit Res judicata pro veritate

finis litium accipitur

One former and one Two civil suits between the

Conditions
subsequent suit filed same parties

Matter in subsequent suit Former suit pending before

directly related competent court

Parties in subsequent suit Subsequent suit filed under

same/similar similar title

Section 10 does not apply to

Titles of both suits
suits pending in foreign
same/similar
courts

Suit filed in competent Section 10 applies if

jurisdiction subsequent application filed
 before the Tahsildar

Court previously heard Date of plaint presentation

and decided issue in considered for institution of
subsequent suit suit

Conclusion
The main difference between the Res Judicata and Res Sub Judice lie
in their applicability, conditions and exceptions. Res Judicata is
applicable when a case has reached a final decision, while Res Sub
Judice is relevant when a case is still pending before a court.
Res Judicata requires one former and one subsequent suit, parties and
titles to be similar, whereas Res Sub Judice necessitates two civil suits
involving the same parties and a similar title. Additionally, various
exceptions exist for both doctrines, allowing certain circumstances
where they may not apply
Que. commissioner in cpc
Role and Powers of Commissioner under the Civil Procedure Code
(CPC), 1908
The Civil Procedure Code, 1908, provides for the appointment of a
Commissioner to assist courts in the effective administration of justice. A
Commissioner is an officer appointed by the court to carry out specific
tasks that the court cannot conveniently execute, such as gathering
evidence, inspecting property, or conducting local investigations. The
provisions related to a Commissioner are primarily found in Order XXVI
of the CPC.

Key Provisions Related to Commissioner under CPC

1. Purpose of Appointment
A Commissioner may be appointed to:
1. Conduct Local Investigation: When local conditions or facts
need to be verified directly on-site.
2. Collect Evidence: Record statements or examine witnesses when
it is inconvenient for the court to do so.
3. Partition of Property: Conduct division of property in partition
suits.
 4. Examination of Accounts: Scrutinize and verify complex
financial records.
5. Perform Ministerial Acts: Tasks such as sales, delivery of
possession, or execution of decrees.

2. Appointment of Commissioner (Order XXVI, Rule 1-22)

a. Authority of Appointment
 Who Can Appoint: A court of competent jurisdiction.
 When Appointed: Upon application by a party to the suit or
when the court deems it necessary.
b. Grounds for Appointment
 The matter involves local investigation, which requires on-site
observation.
 Witnesses are unable to appear in court due to age, illness, or
any valid reason.
 The court needs a clear understanding of a technical issue or an
expert's opinion.
c. Persons Eligible for Appointment
 A neutral and impartial individual, often an advocate, surveyor,
engineer, or government official.
 Experts in specific fields may be appointed when technical
matters are involved.

3. Duties and Responsibilities of a Commissioner

1. Conduct Local Investigation: As per Order XXVI, Rule 9, a
Commissioner may be appointed to conduct a local investigation
to clarify facts or issues.
2. Record Evidence: As per Order XXVI, Rule 4, a Commissioner
can examine witnesses who cannot attend court.
3. Submit Reports: The Commissioner must submit their findings
in the form of a written report, which includes observations,
data, and conclusions based on their investigation or
examination.
4. Follow Directions of the Court: The Commissioner must act
strictly within the scope of the order issued by the court.

4. Types of Commissions under CPC

a. Commission for Local Investigation (Order XXVI, Rule 9)
  Appointed to investigate facts related to property disputes,
boundaries, or other site-specific issues.
 Ensures the court has a clear understanding of physical aspects
that cannot be described in documents or oral testimony.
b. Commission for Examination of Witnesses (Order XXVI, Rule 1-8)
 Used when witnesses are unable to attend court due to age,
illness, or other reasons.
 The Commissioner records statements and submits them to the
court.
c. Commission for Partition of Property (Order XXVI, Rule 13)
 Appointed in suits for partition to divide the property and
prepare a division report.
d. Commission for Accounts (Order XXVI, Rule 11)
 In complex financial cases, the Commissioner examines accounts
and provides a detailed report to assist the court.
e. Commission for Ministerial Acts
 For tasks like delivering possession of property or supervising
sales.

5. Powers of the Commissioner

 Recording Evidence: A Commissioner can administer oaths and
record depositions of witnesses.
 Inspection of Property: Conduct site visits to ascertain facts as
directed by the court.
 Summoning Documents: Request production of relevant
documents necessary for investigation or examination.
 Execution of Court Orders: Perform specific tasks assigned by
the court, such as delivering property possession.

6. Report by the Commissioner

 Submission Timeline: The Commissioner must submit their
report within the timeline specified by the court.
 Contents of the Report: Findings, observations, and any
recommendations.
 Binding Nature: The report is not binding on the court. The
court may accept, reject, or seek clarifications.

7. Objections to the Commissioner’s Report

  Parties may file objections if they believe the Commissioner
acted outside their jurisdiction or if the report is biased or
incomplete.
 The court considers such objections and may order a fresh
investigation or appoint a new Commissioner.

8. Remuneration of the Commissioner

 The court determines the fee payable to the Commissioner,
which is generally borne by the parties or as directed by the
court.

9. Limitations of a Commissioner
 Scope of Authority: A Commissioner cannot exceed the authority
granted by the court order.
 Judicial Functions: A Commissioner cannot make judicial
decisions; their role is limited to fact-finding or executing
specific tasks.

Significance of Commissioner in Legal Proceedings

1. Efficiency: Helps courts save time and resources by delegating
specific tasks.
2. Accuracy: Provides detailed and accurate information from on-
site investigations or expert analysis.
3. Accessibility: Ensures evidence is collected even when witnesses
cannot attend court.
4. Neutrality: Acts as an impartial agent to verify facts or conduct
technical evaluations.

Conclusion
The role of a Commissioner under the Civil Procedure Code is crucial
for the efficient and effective functioning of the judiciary. By enabling
courts to delegate specific tasks, the provisions for a Commissioner
ensure timely and fair adjudication, especially in cases requiring
technical expertise, local investigations, or specialized evidence
collection. At the same time, safeguards like objections and scrutiny of
the Commissioner’s report maintain accountability and fairness in the
judicial process.
Que. settlement of disputes outside court in cpc
Settlement of Disputes Outside Court under CPC
The Civil Procedure Code (CPC), 1908, encourages alternative
mechanisms for resolving disputes to reduce the burden on courts and
promote amicable settlements. Provisions under Section 89 and
related Orders of the CPC provide for mechanisms to settle disputes
outside the court through various methods such as arbitration,
mediation, conciliation, and negotiation.

1. Legal Framework for Alternative Dispute Resolution (ADR)

a. Section 89 of the CPC
 Introduced to encourage out-of-court settlements.
 It mandates courts to refer disputes to ADR if the possibility of
settlement exists.
Key Features of Section 89:
1. Referral by Court: Courts can refer cases to ADR mechanisms
at any stage of the proceedings if they believe a settlement is
possible.
2. Modes of ADR Recognized:
o Arbitration
o Conciliation
o Mediation
o Lok Adalat
o Judicial Settlement
3. Flexibility: Parties can choose the appropriate mechanism for
their dispute.
4. Binding Nature: Settlement agreements reached through ADR
mechanisms are binding on the parties and enforceable as a
court decree.

b. Order X, Rule 1A to 1C of CPC

 Supplements Section 89 by detailing the procedure for referral
to ADR mechanisms.
 Courts must:
1. Identify cases suitable for settlement.
2. Direct parties to opt for one of the ADR methods.
3. Record reasons for referral in the case file.

2. Modes of Settlement Recognized by CPC

a. Arbitration
 Governed by the Arbitration and Conciliation Act, 1996.
 Process:
o Parties agree to appoint an arbitrator who acts as a private
judge.
o Arbitrator's decision, called an "award," is binding and
enforceable.
 Key Features:
o Time-bound and confidential.
o Particularly useful in commercial disputes.

b. Conciliation
 Also governed by the Arbitration and Conciliation Act, 1996.
 Process:
o A conciliator helps the parties reach a mutually acceptable
settlement.
o More informal than arbitration, and no strict legal
procedures are required.
 Binding Nature:
o The settlement agreement is binding and enforceable.

c. Mediation
 Governed by rules framed by courts or under statutory schemes.
 Process:
o A neutral third party (mediator) facilitates communication
between parties.
o Focuses on understanding and resolving underlying issues.
o Does not impose a decision; parties voluntarily arrive at a
settlement.
 Advantages:
o Non-adversarial and preserves relationships.
o Especially effective in family, employment, and commercial
disputes.

d. Lok Adalats
 Governed by the Legal Services Authorities Act, 1987.
 Process:
 o Organized at regular intervals by State or District Legal
Services Authorities.
o Cases are resolved in an informal setting by a panel of
judicial officers, advocates, and social workers.
 Binding Nature:
o Awards are final and binding, with no appeal allowed.
 Key Features:
o No court fees.
o Primarily used for small-scale disputes, pre-litigation
cases, or pending cases.

e. Judicial Settlement
 A settlement facilitated by a judge in their non-judicial capacity.
 Judges act as mediators to assist parties in reaching an
agreement.
 Binding Nature:
o Settlement agreements are enforceable as a court decree.

3. Procedure for Settlement under Section 89

1. Identification of Cases:
o Court examines whether the dispute is suitable for
settlement outside the judicial process.
2. Referral to ADR:
o Court directs parties to opt for an ADR mechanism.
3. Selection of ADR Mechanism:
o Parties may mutually agree on the type of ADR; otherwise,
the court suggests the appropriate method.
4. Settlement Process:
o Parties participate in ADR as per the prescribed rules and
timelines.
5. Settlement Agreement:
o The outcome of ADR, if mutually agreed upon, is recorded
in the form of a written agreement.
6. Implementation:
o Settlement agreements are enforceable as court decrees
under the CPC.

4. Advantages of Out-of-Court Settlements

 1. Reduced Burden on Courts: Frees up judicial resources for more
complex cases.
2. Cost-Effective: Saves litigation costs for parties.
3. Time-Saving: Resolves disputes faster than conventional court
procedures.
4. Preserves Relationships: Non-adversarial processes promote
mutual understanding and maintain goodwill.
5. Confidentiality: Ensures privacy, especially in sensitive matters.
6. Flexibility: Allows parties to devise creative solutions tailored to
their needs.

5. Limitations of ADR
1. Voluntary Nature: Success depends on the willingness of parties
to cooperate.
2. Enforcement Issues: While settlements are binding, enforcing
them may still require court intervention in some cases.
3. Limited Applicability: ADR may not be suitable for disputes
involving criminal matters, public interest issues, or
constitutional questions.
4. Quality of Resolution: The lack of formal legal procedures can
sometimes lead to compromises on justice or fairness.

6. Case Laws Supporting Settlement Outside Court

Salem Advocate Bar Association v. Union of India (2005)
 Supreme Court emphasized the importance of ADR and the
application of Section 89.
 Guidelines were issued for implementing ADR processes
effectively.
Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P)
Ltd. (2010)
 Supreme Court clarified that courts must actively explore
settlement possibilities and refer cases to ADR when feasible.

7. Importance of Settlement Outside Court

 Ensures quicker resolution of disputes, reducing the pendency of
cases.
 Promotes access to justice for individuals who may not be able to
bear the costs of prolonged litigation.
  Encourages the use of innovative and less formal dispute
resolution mechanisms.

Conclusion
Settlement of disputes outside the court under the CPC fosters an
efficient, cost-effective, and amicable resolution of disputes. The
incorporation of Section 89 and related provisions into the CPC marks
a progressive step towards reducing judicial backlog and promoting a
collaborative approach to justice. With robust frameworks like
mediation, arbitration, and Lok Adalats, ADR mechanisms are
indispensable for a modern legal system.

Que. arrest and attachment before jugdment

Arrest and Attachment Before Judgment under CPC

The provisions for arrest and attachment before judgment in the Civil
Procedure Code (CPC), 1908, are aimed at safeguarding the interests
of the plaintiff by ensuring that the defendant does not frustrate the
decree by absconding or disposing of their property during the
pendency of the suit.
These provisions, found in Order XXXVIII of the CPC, are preventive
in nature and aim to secure the availability of the defendant or their
property for satisfying the decree if passed in favor of the plaintiff.

Arrest Before Judgment

Legal Provision
 Governed by Order XXXVIII, Rule 1 to 4 of the CPC.
Purpose
 To ensure that the defendant does not abscond or leave the
jurisdiction of the court to avoid satisfying the decree if the
plaintiff wins the case.
Grounds for Arrest
The court may order the arrest of the defendant if it is satisfied that:
1. The defendant is attempting to leave the jurisdiction of the court
or conceal themselves to evade the court’s jurisdiction.
2. The defendant has the intention to delay or obstruct the
execution of a potential decree.
Procedure
 1. Application by Plaintiff: The plaintiff must file an application
supported by an affidavit.
2. Prima Facie Case: The court must be satisfied that the plaintiff
has a genuine claim and that there is a reasonable apprehension
of the defendant absconding.
3. Issuance of Warrant:
o The court may issue a warrant for the arrest of the
defendant.
o The defendant can avoid arrest by furnishing security for
their appearance and compliance.
Release of Defendant
 The defendant may be released if:
1. They furnish security to the satisfaction of the court.
2. They undertake to appear and comply with court orders.
Limitations
1. No Arrest in Ordinary Cases: Arrest is a drastic measure and
should be used sparingly.
2. Abuse of Power: Courts must guard against misuse by plaintiffs
to harass defendants.

Attachment Before Judgment

Legal Provision
 Governed by Order XXXVIII, Rule 5 to 13 of the CPC.
Purpose
 To prevent the defendant from disposing of, transferring, or
hiding their property during the pendency of the suit, which may
frustrate the execution of a decree.
Grounds for Attachment
The court may order the attachment of the defendant's property if it is
satisfied that:
1. The defendant intends to dispose of or remove the property from
its jurisdiction.
2. Such an action would defeat the execution of the decree.
Procedure
1. Application by Plaintiff: The plaintiff must file an application,
supported by an affidavit, showing genuine apprehension.
2. Show-Cause Notice:
 o The court issues a notice to the defendant, asking them to
explain why the property should not be attached.
o If the court believes there is an immediate threat, it may
attach the property without notice.
3. Attachment Order:
o The court passes an order for the attachment of the
property.
o The defendant can avoid attachment by furnishing security
or assurance.
Release of Property
 The property may be released if:
1. The defendant provides sufficient security to satisfy the
potential decree.
2. The court is satisfied that there is no longer a need for
attachment.
Attached Property
 The attached property remains under the court’s custody and
cannot be sold, transferred, or alienated by the defendant during
the pendency of the suit.

Safeguards Against Abuse

1. Court's Discretion: The court exercises judicial discretion and
considers the necessity of such orders.
2. Reasonable Grounds: Mere allegations by the plaintiff are not
enough; there must be concrete evidence or genuine
apprehension.
3. Compensation for Defendant: If it is later found that the plaintiff
sought arrest or attachment maliciously or without reasonable
cause, the defendant may seek compensation.

Distinction Between Arrest and Attachment

Aspect Arrest Before Judgment Attachment Before Judgment
To secure the defendant’s To secure the property for
Objective
presence in court. satisfying the decree.
Personal remedy against Remedy against the
Nature
the defendant. defendant’s property.
Procedure Warrant issued for arrest. Property is attached by court
Aspect Arrest Before Judgment Attachment Before Judgment
order.
Security Defendant can furnish Defendant can furnish
Option security to avoid arrest. security to avoid attachment.
Used when the defendant Used when the defendant
Scope
intends to abscond. intends to alienate property.

Important Case Laws

1. Prem Raj Mundra v. Md. Maneck Gazi (1951)
o The court emphasized that attachment before judgment
should not be granted lightly and must be supported by
concrete evidence of intent to defraud.
2. Rajendra Singh v. Ramdhar Singh (2001)
o The court held that arrest before judgment is a stringent
provision and must be used sparingly with sufficient
safeguards.
3. Bihari Lal v. T.T. Ltd. (2002)
o The court clarified that attachment before judgment
cannot be sought merely on apprehensions but must be
backed by reasonable proof.

Conclusion
The provisions of arrest and attachment before judgment under the
CPC are essential safeguards to protect the interests of plaintiffs and
ensure the effective execution of decrees. However, their drastic nature
necessitates cautious and judicious use by courts to prevent misuse
and ensure fairness to both parties.

Que. interim injuction

Ans :- An interim injunction is a temporary order issued by a court to

prevent a party from performing a specific act or to maintain the
status quo during the pendency of a case. The primary objective of an
interim injunction is to preserve the rights of parties and avoid any
harm or injustice that may arise during the litigation process.
The provisions governing interim injunctions are contained in Order
XXXIX, Rules 1 and 2, along with Section 94(c) and Section 151 of the
Civil Procedure Code, 1908.

Types of Injunctions
1. Temporary (Interim) Injunction:
o Issued for a specific period or until further orders of the
court.
o Can be modified or vacated by the court.
2. Perpetual (Permanent) Injunction:
o Granted by the court as a final relief after the case is
decided.
o Regulated by the Specific Relief Act, 1963.
3. Mandatory Injunction:
o Directs a party to perform a specific act, such as removing
an obstruction or restoring property.

Legal Framework for Interim Injunction

Order XXXIX, Rule 1
This rule empowers the court to grant an interim injunction in the
following cases:
1. Property at Risk:
o Where property in dispute is in danger of being wasted,
damaged, alienated, or wrongfully sold.
2. Rights Likely to be Infringed:
o Where the defendant threatens to remove or dispose of
their property to defeat the plaintiff's claim.
3. Other Harm:
o Where the defendant’s actions are likely to cause injury to
the plaintiff.
Order XXXIX, Rule 2
This rule provides for injunctions to restrain a party from:
1. Committing a breach of contract.
2. Causing injury or annoyance to the plaintiff in relation to the
subject matter of the suit.

Conditions for Granting an Interim Injunction

The court considers the following factors, as established in Dalpat
Kumar v. Prahlad Singh (1992):
1. Prima Facie Case:
o The plaintiff must demonstrate a reasonable likelihood of
success in the case.
o It does not mean proving the case fully but showing a
strong case in favor.
2. Irreparable Injury:
o The plaintiff must prove that if the injunction is not
granted, they would suffer harm that cannot be adequately
compensated by monetary damages.
3. Balance of Convenience:
o The court examines whether granting the injunction would
cause more harm to the defendant than the harm the
plaintiff would suffer if it is not granted.

Procedure for Granting an Interim Injunction

1. Filing an Application:
o The plaintiff must file an application for an interim
injunction, supported by an affidavit.
2. Notice to Opposite Party:
o Generally, the court issues notice to the opposite party
before granting an injunction.
o In urgent cases, the court can grant an ex parte injunction
without prior notice.
3. Examination by the Court:
o The court examines the prima facie case, potential
irreparable harm, and balance of convenience.
4. Grant of Injunction:
o If satisfied, the court issues an order specifying the terms
of the injunction.
5. Security by Plaintiff:
o The court may require the plaintiff to furnish security to
compensate the defendant in case the injunction is found
unjustified.

Ex Parte Injunction
An ex parte injunction is granted without hearing the defendant,
under exceptional circumstances, as per Order XXXIX, Rule 3:
1. When delay in granting the injunction would defeat the purpose
of the suit.
2. The plaintiff must provide:
o Reasons for seeking an ex parte order.
o A strong case for urgency.
The plaintiff is required to:
 Serve the defendant with a copy of the injunction application
and affidavit.
 Inform the court about compliance.

Duties of the Court in Granting Interim Injunctions

1. Ensure that the injunction is necessary and does not
unnecessarily harm the defendant.
2. Clearly specify the duration and terms of the injunction.
3. Review the injunction periodically to determine its continuation
or modification.

Revocation or Modification of Interim Injunction

An interim injunction can be revoked, modified, or vacated by the

court under the following circumstances:
1. Misrepresentation:
o If the injunction was obtained through fraud or
suppression of material facts.
2. Change in Circumstances:
o If there is a significant change in the situation since the
injunction was granted.
3. Objection by the Defendant:
o The defendant may challenge the injunction, and the court
may review its order.

Penalties for Disobedience of an Injunction

Under Order XXXIX, Rule 2A, if a party disobeys an injunction:
1. The court can attach their property.
2. The party may be detained in civil prison for up to 3 months.
Relevant Case Laws
1. Kuldip Singh v. Subhash Chander Jain (2000):
o The Supreme Court emphasized the importance of
balancing convenience while granting injunctions.
2. Dalpat Kumar v. Prahlad Singh (1992):
o Established the criteria of prima facie case, irreparable
injury, and balance of convenience for granting
injunctions.
3. Morgan Stanley Mutual Fund v. Kartick Das (1994):
o Highlighted the conditions for granting ex parte
injunctions.

Advantages of Interim Injunctions

1. Protects Rights:
o Prevents irreparable harm to the plaintiff during litigation.
2. Maintains Status Quo:
o Ensures no change in circumstances affecting the case.
3. Prevents Injustice:
o Stops the defendant from taking advantage of delays in the
judicial process.

Limitations of Interim Injunctions

1. Misuse by Litigants:
o Parties may seek injunctions to delay proceedings or
harass the opponent.
2. Harm to Defendant:
o An improperly granted injunction may unjustly harm the
defendant’s rights.
3. Judicial Delay:
o Periodic reviews and hearings for injunctions may prolong
litigation.

Conclusion
Interim injunctions are an essential tool for safeguarding the rights of
parties during the pendency of a suit. While these orders provide
immediate relief and prevent irreparable harm, courts must exercise
caution to ensure fairness and prevent misuse. By balancing the rights
of both parties, interim injunctions maintain justice and equity in the
judicial process.

Que. Caveat under CPC

A caveat is a legal mechanism under the Civil Procedure Code (CPC),

1908, that allows a person anticipating a legal proceeding against them
to notify the court not to pass any order without hearing their side.
This provision, codified in Section 148A of the CPC, is a protective
measure designed to safeguard the interests of a person who expects
litigation or an ex parte order against them.

Meaning of Caveat
The term "caveat" is derived from the Latin word meaning "let a
person beware." It serves as a precautionary measure for parties who
anticipate that certain legal actions might be taken against them and
ensures they get an opportunity to be heard before any order is
passed.

Legal Framework: Section 148A

Who Can File a Caveat?
1. Any person claiming a right to appear before the court in a case
where they expect:
o Another party may file an application.
o An ex parte order may be passed.
2. A caveat can be filed even if no case is pending but is anticipated.
Key Provisions
1. Right to File a Caveat:
o Any person anticipating litigation or application by
another party can lodge a caveat.
o The caveator need not have a vested interest in the
property or subject matter but must show a legitimate
concern.
2. Notification to the Opposite Party:
o When a caveat is filed, the court must notify the opposite
party about it.
 o The opposite party is then obligated to serve a copy of their
application or petition to the caveator.
3. Validity of a Caveat:
o A caveat remains valid for 90 days from the date of filing.
o After 90 days, the caveator must renew the caveat if
necessary.
4. Duty of the Court:
o The court must ensure that no order is passed on the
application of the opposite party without hearing the
caveator.
o This ensures procedural fairness.

Procedure for Filing a Caveat

1. Drafting the Caveat:
o The caveat must clearly state the details of the case or
anticipated case.
o It should include the caveator’s name, address, and the
anticipated relief sought by the opposite party.
2. Filing the Caveat:
o The caveat is filed in the court where the case is expected
to be instituted or is pending.
3. Service of Notice:
o Once the caveat is filed, the court sends a notice to the
opposite party, informing them about the caveat.
4. Hearing the Caveator:
o If the opposite party files an application, the court is bound
to hear the caveator before passing any order.

Advantages of Filing a Caveat

1. Right to Be Heard:
o Ensures that the caveator is given an opportunity to
present their case before an order is passed.
2. Prevents Ex Parte Orders:
o Guards against orders being passed without the knowledge
or participation of the caveator.
3. Legal Preparedness:
 o Allows the caveator to be proactive in addressing
anticipated litigation.
4. Cost-Effective:
o Filing a caveat is a simple and inexpensive process
compared to challenging ex parte orders later.

Limitations of Caveat
1. Short Validity Period:
o The caveat is valid only for 90 days, requiring renewal if
necessary.
2. Limited to Anticipated Cases:
o Cannot be filed in cases where the caveator does not
foresee litigation.
3. No Assurance of Final Relief:
o Filing a caveat does not guarantee a favorable outcome; it
only ensures a hearing.

Caveat in Practical Scenarios

1. Property Disputes:
o A person expecting litigation over property can file a
caveat to avoid ex parte injunctions.
2. Execution Proceedings:
o A judgment debtor can file a caveat to prevent adverse
orders in execution applications.
3. Family Disputes:
o In matters like inheritance or divorce, parties may file
caveats to safeguard their interests.

Conclusion
The concept of caveat under Section 148A of the CPC is a vital tool for
ensuring fairness in judicial proceedings. By allowing parties to
preemptively protect their interests, it fosters transparency and
prevents misuse of the judicial process through ex parte orders.
However, its limited scope and validity require careful and timely
action by the caveator.
Que. Receiver under CPC

The concept of a receiver is addressed under Order XL of the Civil

Procedure Code (CPC), 1908. A receiver is a neutral third party
appointed by the court to manage, preserve, or protect property involved in
a dispute. The court appoints a receiver to safeguard the rights of all
parties and ensure that the property or its income is not wasted, damaged,
or misused during the pendency of a suit.

Meaning of a Receiver A receiver is an impartial person appointed by the

court to take control of property that is the subject of litigation. The
primary role of the receiver is to:

 Preserve the property.

 Manage its use or income.
 Ensure that the property remains in good condition until the dispute
is resolved.

Legal Framework: Order XL

Order XL, Rule 1:-The court may appoint a receiver when:

1. Preservation of Property :The property in dispute is in danger of

being wasted, damaged, or misused.
2. Protection of Rights: There is a need to protect the rights of parties
to the suit.
3. Equitable Distribution:It is necessary to ensure fair distribution of
property or its income among parties.

Conditions for Appointment of a Receiver The court considers the

following factors before appointing a receiver:

1. Existence of a Bona Fide Dispute: There must be a genuine dispute

concerning the ownership, possession, or rights related to the
property.
2. Danger of Waste or Damage: The property is at risk of being
wasted, damaged, or alienated, which might render the decree
ineffective.
3. Urgency: The situation requires immediate intervention to prevent
irreparable harm to the property.
 4. Equity and Justice The appointment of a receiver must be fair and
equitable, ensuring no party is unfairly prejudiced.
5. No Adequate Remedy: There is no other effective remedy
available to protect the property or the interests of the parties.

Functions and Powers of a Receiver

Once appointed, the receiver acts as an officer of the court and has the
following functions and powers:

1. Possession and Control:

o Take possession of the property under dispute.
o Exercise control over the property as directed by the court.
2. Preservation of Property: Ensure the property is preserved and
maintained in its current state.
3. Management of Income:
o Collect rents, profits, or income generated from the property.
o Use the income to maintain the property or as directed by the
court.
4. Submission of Accounts:
o Maintain proper accounts of all income, expenses, and
activities related to the property.
o Submit periodic reports to the court.
5. Court Directions: Act strictly under the orders and directions of the
court.

Procedure for Appointment of a Receiver

1. Application: A party to the suit files an application requesting the

appointment of a receiver. The application must demonstrate the
necessity for a receiver and highlight the risks to the property.
2. Notice: The court issues notice to the opposite party and hears both
sides before deciding.
3. Appointment: If satisfied, the court appoints a receiver and issues
specific terms and conditions for managing the property.
4. Security: The receiver may be required to furnish security to ensure
faithful performance of duties.

Rights and Duties of a Receiver

Rights
 1. Right to Remuneration: The court determines and allows
reasonable compensation for the receiver’s services.
2. Right to Indemnity: The receiver is indemnified for all lawful acts
done in the discharge of their duties.
3. Right to Direction: The receiver can seek instructions from the
court if any situation requires clarification.

Duties

1. Neutrality: Act impartially and not favor any party to the dispute.
2. Preserve Value: Take all necessary steps to prevent the
deterioration or depreciation of the property.
3. Accountability: Maintain accurate records of income and expenses
and submit them to the court.
4. Compliance: Comply with all directions issued by the court.

Discharge of Receiver :- The court may discharge the receiver:

1. When the purpose of the appointment is fulfilled.

2. If the receiver fails to perform their duties.
3. Upon the conclusion of the suit or as otherwise directed by the court.

Limitations on the Power of a Receiver

1. Court Oversight: The receiver must act under the court’s

instructions and cannot act independently.
2. No Proprietary Rights: The receiver does not acquire any
proprietary rights over the property.
3. Limited to Appointment Purpose: The receiver’s powers are
confined to the specific purpose for which they were appointed.

Advantages of Appointing a Receiver

1. Prevention of Harm: Ensures that the property is not wasted or

misused during litigation.
2. Fair Management: Provides neutral and equitable management of
the property.
3. Protection of Rights: Protects the interests of all parties involved in
the dispute.

Disadvantages of Appointing a Receiver

 1. Delay and Costs: Increases the time and cost of litigation due to
additional proceedings.
2. Potential for Mismanagement: Risk of the receiver mismanaging
the property if not properly supervised.
3. Loss of Control: Parties lose direct control over the property during
the receiver’s tenure.

Que. Interlocutory Orders under CPC

Interlocutory orders are interim or temporary orders issued by a court

during the pendency of a legal proceeding. These orders are not final
decisions on the case but are meant to aid in the effective adjudication of
the dispute or to preserve the rights of the parties until the final resolution.

The provisions related to interlocutory orders are scattered across various

sections and orders of the Civil Procedure Code, 1908 (CPC). They serve
as important tools to ensure that justice is not defeated due to procedural
delays or misuse of the judicial process.

Meaning of Interlocutory Orders The term "interlocutory" originates

from the Latin word "interloqui," meaning "to speak between."
Interlocutory orders:

 Are made during the course of a suit or proceeding.

 Do not decide the main issue but address ancillary or subsidiary
matters.
 Are aimed at safeguarding the interests of the parties or ensuring
smooth conduct of the trial.

Types of Interlocutory Orders

Interlocutory orders can be broadly classified into the following

categories:

1. Preservative Orders:
o These orders are issued to maintain the status quo or preserve
the subject matter of the dispute.
o Examples:
  Injunctions (temporary or mandatory).
 Orders for the appointment of a receiver.
2. Facilitative Orders:
o These orders facilitate the smooth progress of the trial or
proceeding.
o Examples:
 Orders for discovery, inspection, or production of
documents.
 Orders for examination of witnesses or interrogatories.
3. Preventive Orders:
o Issued to prevent a party from doing something that might
harm the other party’s interests.
o Examples:
 Arrest and attachment before judgment.
 Restraining orders.
4. Administrative or Procedural Orders:
o Relating to the procedural aspects of the case.
o Examples:
 Orders granting adjournments.
 Orders regarding the conduct of hearings or timelines.

Relevant Provisions under CPC

Section 94: Provides for supplemental proceedings to prevent the ends of

justice from being defeated.

Examples:

o Orders for injunctions.

o Appointment of receivers.
o Arrests or attachments before judgment.

Order XXXIX: Deals with temporary injunctions and interlocutory

orders.

Order XL: Provides for the appointment of a receiver to manage or

protect the property during litigation.

Order XI: Allows for orders related to discovery, inspection, and

production of documents.
Section 151: Empowers the court to issue interlocutory orders in the
exercise of its inherent powers to prevent abuse of process or to secure
justice.

Conditions for Granting Interlocutory Orders

The court considers the following factors before granting an interlocutory

order:

1. Prima Facie Case: The applicant must establish a strong case

showing that they have a good chance of succeeding in the main suit.
2. Irreparable Harm: The applicant must demonstrate that failure to
grant the order would result in harm or injury that cannot be
adequately compensated by monetary damages.
3. Balance of Convenience: The court assesses whether the benefit of
granting the order outweighs the potential harm to the opposite
party.
4. Good Faith: The applicant must act in good faith and not misuse the
judicial process.

Examples of Interlocutory Orders

1. Temporary Injunctions: Prevent one party from taking specific

actions, such as alienating property.
2. Attachment Before Judgment: Secures the property to ensure it is
available for execution if the decree is passed.
3. Security for Costs: Orders a party to provide security for costs to
prevent frivolous litigation.
4. Appointment of a Receiver: Appoints a neutral person to manage
or protect property involved in the dispute.
5. Orders for Discovery or Inspection: Directs a party to disclose or
allow inspection of documents relevant to the case.

Advantages of Interlocutory Orders

1. Prevent Irreparable Harm: Protects parties from suffering harm

during the pendency of a suit.
2. Preserve Status Quo: Maintains the subject matter of the dispute
until the case is resolved.
3. Efficient Case Management: Facilitates the smooth conduct of the
trial by resolving procedural or ancillary matters.
Disadvantages of Interlocutory Orders

1. Delays: Multiple interlocutory applications can prolong the litigation

process.
2. Risk of Misuse: Parties may misuse interlocutory orders to harass or
delay the opponent.
3. Additional Costs: Increases the financial burden on litigants.

Arrest and Attachment Before Judgment Under the Code of Civil

Procedure, 1908 (CPC)
The Code of Civil Procedure, 1908 (CPC), contains provisions to
safeguard the interests of a plaintiff by preventing a defendant from
frustrating the execution of a potential decree. Two such protective
measures are arrest before judgment and attachment before judgment.
These measures ensure that the defendant does not evade liability or
transfer assets to avoid satisfying the decree.

Arrest Before Judgment (Order 38, Rules 1-4)

Purpose:
Arrest before judgment ensures that the defendant remains available to
satisfy the decree if the court rules in favor of the plaintiff.
Conditions for Arrest:
Under Order 38, Rule 1, the plaintiff must satisfy the court that:
1. The defendant intends to:
o Leave the jurisdiction of the court to evade legal proceedings,
or
o Delay or obstruct the execution of a decree that may be passed
against them.
2. The defendant’s absence will likely defeat or delay the satisfaction
of the decree.
Procedure:
 1. Application by Plaintiff:
o The plaintiff must file an application supported by an affidavit
outlining the reasons for seeking the arrest of the defendant.
2. Court’s Direction:
o The court may issue a warrant for the arrest of the defendant.
o The defendant will be brought before the court.
3. Security for Appearance:
o The defendant may be released if they provide security to
ensure their presence during the trial.
Key Provisions:
 Release on Security (Rule 2): The court can release the defendant if
they provide security for their appearance or fulfillment of the
decree.
 Procedure for Arrest (Rule 3): The court may order the defendant
to be kept in custody unless security is provided.
 Bond Execution (Rule 4): The defendant may execute a bond to
avoid detention.

Attachment Before Judgment (Order 38, Rules 5-13)

Purpose:
Attachment before judgment prevents the defendant from disposing of
their property to avoid satisfying the decree.
Conditions for Attachment:
Under Order 38, Rule 5, the plaintiff must prove to the court that:
1. The defendant is about to:
o Dispose of their property, or
o Remove their property from the court's jurisdiction.
2. The intention of the defendant is to obstruct or delay the execution
of the decree.
Procedure:
1. Application by Plaintiff:
o The plaintiff must file an application supported by an affidavit
providing sufficient reasons for seeking attachment.
2. Show Cause Notice:
o The court may issue a notice to the defendant to show cause
why their property should not be attached.
3. Conditional Attachment:
o If the court is satisfied with the plaintiff's application, it may
attach the property conditionally, pending the defendant's
response.
Key Provisions:
 Form of Attachment (Rule 6): The manner of attachment is the
same as in the case of execution of decrees.
 Removal or Disposal of Property (Rule 7): Once property is
attached, the defendant is prohibited from transferring or disposing
of it.
 Subsequent Claim (Rule 8): The defendant can later claim that the
attachment was wrongful or unnecessary.
 Protection of Third Parties (Rule 10): Attachment does not affect
the rights of bona fide purchasers or other third parties with a
legitimate claim.

Differences Between Arrest and Attachment Before Judgment

Attachment Before
Aspect Arrest Before Judgment
Judgment
To prevent the defendant from To prevent the defendant
Purpose evading legal proceedings by from transferring or hiding
absconding. assets.
Nature of Personal restriction on the Restriction on the
 Attachment Before
Aspect Arrest Before Judgment
Judgment
Measure defendant. defendant’s property.
The defendant can avoid
The defendant can secure
Remedy attachment by furnishing
release by providing a bond.
security.
Applies to the person of the Applies to the property of
Scope
defendant. the defendant.

Safeguards and Limitations

1. Judicial Discretion:
o The court must ensure that these measures are not misused by
the plaintiff to harass the defendant.
2. Adequate Grounds:
o The plaintiff must provide strong evidence of the defendant’s
intentions to evade or obstruct justice.
3. Protection for Defendant:
o The defendant can challenge the application and seek the
release of property or themselves by furnishing security.

Conclusion
The provisions for arrest and attachment before judgment under the
CPC are preventive in nature. They aim to ensure that the rights of the
plaintiff are protected and the decree of the court is not rendered
ineffective due to the defendant’s actions. These provisions, while
stringent, are accompanied by safeguards to prevent their misuse,
maintaining a balance between the interests of both parties.