CIVIL PROCEDURE CODE

UNIT I

 Main features
 Concept of law – suit – definitions – decree – order – legal representative – mesne
profit – parties to suit – non-joinder – mis joinder – representative suit.

INTRODUCTION

The Civil Procedure Code was passed in 1908 and came into force from 1st January 1909.
The Civil Procedure Code neither creates nor takes away any right. It is intended to regulate
the procedures followed by the civil court. Law is divided into two parts,1. Procedural law
2,sunstantive law. The 'Code of Civil Procedure' is a procedure law, i.e., an adjective law.
The Code neither creates nor takes away any right. It only helps in proving or implementing
the 'Substantive Law'. The Code contains 158 Sections and 51 Orders. The object of the
Code is to consolidate (all the laws relating to the procedure to be adopted by the Civil
Courts) and amend the law relating to the procedure of Courts of Civil Procedure. The
procedural laws are always retrospective in operation unless there are good reasons to the
contrary. The reason is that no one can have a vested right in forms of procedure. The Code
of Civil Procedure is not retrospective in operation.- The Code is not exhaustive.

HISTORY OF THE CODE

Before 1859, there was no uniform civil procedure applicable for the entire country. Sir
Charles Wood was responsible, then President of the Board for the affairs of India instructed
the Second Law Commission to prepare a simple code for applicability in all Indian courts.
Although it was not applicable in Presidency Supreme Courts and Presidency Small Cause
Courts. This code had several issues and was amended and reacted in 1877. Another
amendment was made in 1892. There existed a conflict of judicial opinion and interpretation
of certain procedures of the Code. In 1908, with the assent of the Governor-General, The
Code of Civil Procedure of 1908 was implemented. The Civil Procedure Code has been
amended several times to meet the needs and requirements which are dynamic and changing
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from time to time. Between 1909 to 1976, the Code has been amended for more than 30
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times. Two important amendments were made in 1951 and 1956. Despite there being some
defects in it, the Code was enforced satisfactorily. The Law Commission submitted several
reports with the requirement of what changes should be made while keeping in mind the
following necessities – 1. The procedure must not be complex and must allow a fair deal to
economically weaker sections of the society. 2. A litigant must get a fair trial in accordance
with the accepted principles of natural justice. In 2002, several considerable changes were
made to the CPC of which some of the changes are listed below – 1. Number of adjournments
to be restricted 2. Provision for outside of court settlement to be introduced 3. Provision for
recording evidence by Court commissioner has been made 4. A provision is made for the
filing of an appeal in the court where the decree has been passed.

DEFINITIONS

Section-2(2) "Decree" means the formal expression of an adjudication which, so far as

regards the court expressing it, conclusively determines the rights of the parties with regard to
all or any of the matters in controversy in the suit and may be either

Preliminary or final. It shall be deemed to include the rejection of a plaint and the
determination of any question within Section-144, but shall not include:- a) any adjudication
from which an appeal lies as an appeal from an order, or b) any order for dismissal for
default.

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

Decree [Section-2 (2)] and Order [Section-2 (14)] Essential Elements of a decree: The
decision of a Court can be termed as a "decree" upon the satisfaction of the following
elements:- I. There must be an adjudication II. Such adjudication must have been given in a
suit III. It must have determined the rights of the parties with regard to all or any of the matter
in controversy in the suit. IV. Such determination must be of a conclusive nature and V.

There must be formal expression of such adjudication.

a) An Adjudication: Adjudication means "the judicial determination of the matter in dispute".

If there is no judicial determination of any matter in dispute or such judicial determination is
not by a Court, it is not a decree; e.g., an order of dismissal of a suit in default for
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nonappearance of parties, or of dismissal of an appeal for want of prosecution are not decrees
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because they do not judicially deal with the matter in dispute.

b) In a Suit: Suit means a Civil proceeding instituted by the presentation of a Plaint. Thus,
every suit is instituted by the presentation of Plaint. Where there is no Civil suit, there is no
decree; e.g., Rejection of an application for leave to sue in forma pauper is is not a decree,
because there cannot be a plaint in such case until the application is granted. Exception: But
where in an enactment specific provisions have been made to treat the applications as suits,
then they are statutory suits and the decision given thereunder are, therefore, decrees; e.g.,
proceeding under the Indian Succession Act, the Hindu Marriage Act, the Land Acquisition
Act, the Arbitration Act, etc.

c) Rights of the parties: The adjudication must have determined the rights i.e., the substantive
rights and not merely procedural rights of the parties with regard to all or any of the matter in
controversy in the suit. "Rights of the parties" under section 2(2). The rights of the parties
inter se (between the parties) relating to status, limitation, jurisdictions, frame of suit.
accounts, etc. "Rights in matters in procedure" are not included in section 2(2); e.g., An order
of dismissal for non-prosecution of an application for execution, or refusing leave to sue in
forma pauperis, or a mere right to sue, are not decrees as they do not determine the rights of
the parties.

d) Conclusive Determination: The determination must be final and conclusive as regards the
Court, which passes it. An interlocutory order which does not finally decide the rights of the
parties is not a decree; e.g., An order refusing an adjournment, or of striking out defence of a
tenant under the relevant Rent Act, or an order passed by the appellate Court under Order 41,
rule 23 to decide some issues and remitting other issues to the trial Court for determination
are not decrees because they do not decide the rights of the parties conclusively.

e) Formal Expression: There must be a formal expression of such adjudication. The formal
expression must be deliberate and given in the manner provided by law.

Types of Decrees Decree Preliminary Decree Final Decree Partly Preliminary & Partly Final
Decree

I. Preliminary Decree: Where an adjudication decides the rights of the parties with
regard to all or any of the matters in controversy in the suit, but does not completely
dispose of the suit, it is a Preliminary Decree. A preliminary decree is only a stage in
working out the rights of the parties, which are to be finally adjudicated by a final
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decree.
II. II. Final Decree : A decree may be final in two ways- a. When no appeal is filled
against the decree within the prescribed period or the matter has been decided by the
decree of the highest Court; b. When the decree so far as regards the Court passing it,
completely dispose of the suit. "A final decree is one which completely disposes of
the suit and finally settles all the questions in controversy between the patties and
nothing further remains to be decided thereafter. Under the special circumstances,
more than one final decrees can be passed in the same suit, e.g. Where two or more
causes of actions are joined together, there can be more than one final decree.
III.Partly Preliminary and Partly Final Decree: For example, in a suit for possession
of immoveable property with mesnes profits, the Court- a) decrees possession of the
property, and b) directs an enquiry into the mesne profits. The former part of the
decree is finally while the later part is only preliminary because the Final Decree for
mesne profits can be drawn only after enquiry and ascertainment of the due amount.
In such a case, even though the decree is only one, it is Partly Preliminary and Partly
Final.

Order: Section -2 (14)

An order means the formal expression of any decision of a Civil Court which is not a decree.
The adjudication of a court of law may be either Decree or Order; and cannot be both.

Difference Between Decree and Order Decree Order

A decree can only be passed in a suit which commenced by presentation of plaint. An order
may originate from a suit, by presentation of a plaint or may arise from a proceeding
commenced by a petition or an application.

2(3) "Decree-Holder" means any person in whose favour a decree has been passed or an
order capable of execution has been made.

2(5) "Foreign Court" means a Court situate outside India and not established or continued
by the authority of the Central Government;

2(6) "Foreign Judgment" means the judgment of a foreign Court;

2(8) "Judge" Means the presiding officer of a Civil Court;

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2(9) "Judgment" means the statement given by the Judge on the grounds of a decree or
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order.
2(10) "Judgment-Debtor" means any person against whom a decree has been passed or an
order capable of execution has been made.

2(11) "Legal Representative" means a person who in law represents the estate of a deceased
person, and includes any person who intermediates with the estate of the deceased and where
a party sues or is sued in a representative character the person on whom the estate devolves
on the death of the party so suing or sued.

of property means those profits which the person in wrongful possession of such property
actually received or might with ordinary diligence have received therefrom, together with
interest on such profits, but shall not include profits due to improvements made by the person
in wrongful possession; The owner of property or any other person who is entitled to have
possession of property has a right to the possession of his property and when such person is
deprived of such a right by any other person, person, then he is entitled not only to receive
back possession of that property but also to damages for wrongful possession from that
person. "Mesne Profits" of property means those profits which the person in wrongful
possession of such property actually received therefrom, together with interest on such
profits, But shall not include profits due to improvements made by the person in wrongful
possession. The mesne profits are compensation, which is penal in nature. A decree for
mesne profits is to compensate the person who has been kept out of possession even though
he was entitled to possession thereof.

The person against whom Mesne profits can be claimed

1. The mesne profits can be claimed with regard to immoveable property only. Generally,
person in wrongful possession and enjoyment of immoveable property is liable for mesne
profits.

2. A decree for mesne profit can be passed against a)a tresspasser or a person against whom
a decree for possession is passed, or b)against a mortgagee in possession of property even
after a decree for redemption is passed or c)against a tenant holding over at will after a notice
to quit has been served him. To ascertain and provide mesne profits it is not what the plaintiff
has lost by being out of possession but what the defendant gained or might reasonably and
with ordinary prudence have gained by such wrongful possession. Since interest is an integral
part of mesne profits, it has to be allowed in the computation of mesne profits itself.
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2(14) "order" means the formal expression of any decision of a Civil Court which is not a
decree;

2(16) "prescribed" means prescribed by rules;

2(18) "rules" means rules and forms contained .in the First Schedule or made under section
122 or section 125.

Parties to Suit – Order 1, Rules 1 to 13

A person who is not a party in the proceeding is not bound by any judgment or decree as the
order against him is in violation of the principles of natural justice. There may be a party
necessary, proper and/or improper, therefore the concept of joinder, non-joinder and
misjoinder of parties has always been very relevant. Nearly a Constitution Bench of the
Supreme Court in Udit Narain Singh Malpaharia Vs Member, Board of Revenue Bihar, AIR
1963 SC 786, has explained as to who are the necessary parties and without whom the suit
shall not be party is one whose presence is necessary for a complete and final decision. Suit
fails for non-joinder of necessary parties. A Constitution Bench in U.P. Awas Evam Vikas
Parishad V. Gyan Devi, AIR 1995 SC 724 reiterated the same view. In Iswar B.C. Patel V.
Harihar Behera, AIR 1999 SC 1341, the Apex Court observed that question of joinder of
parties involves joinder of causes of action. Objection should be taken before trial court in
order to provide opportunity to plaintiff to rectify the defect and despite such objection if
plaintiff persists in not impleading the party, consequences on non-joinder may follow -
Church of Christ Charitable Trust and Educational Charitable Society represented by its
Chairman v. Ponniamman Educational Trust represented by its Chairperson/Managing
Trustee (2012) 8 SCC 706. Under Rule 1 of Order 1 several persons may join as plaintiffs in
one suit, though their causes of action are separate and distinct, provided that (i) (ii) the right
to relief, alleged to exist in them, arises out of the same act or transaction or series of acts or
transactions - Hari Ram Fatan Das v. Kanhaiya Lal, 1975 A Raj 23; and the case is of such a
character that, if such persons brought separate suits, any common question of law or fact
would arise. Both these conditions must be fulfilled to enable two or more persons to join as
plaintiffs in one suit. The two conditions are not alternative - Stroud v. Lawson, (1898) 2 QB
44.A suit by a number of shareholders of a company for avoiding the contracts of allotment
of shares and for refund of money paid does not fall within the purview of this rule or r 8 as
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the facts relating to each contract must be different and there is no identity of interest among
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the several plaintiffs - Mansukhlal v. Jupiter Airways Ltd., (1953) AB 112.But it is not
necessary that all the questions arising in the case should be common to all the parties. It is
sufficient even if one of them is common to them - Sitaram v. Rajendra Chandra, AIR 1956
Ass 7.

ILLUSTRATIONS

(1) A publishes a series of books under the title of The Oxford and Cambridge
Publications so as to induce the belief that the books are publications of the Oxford
and Cambridge Universities or either of them. The two Universities may join as
plaintiffs in one suit to restrain A from using the title, because the publication and the
belief induced are common questions of fact arising out of the same series of
transactions - The Universities of Oxford and Cambridge v. George Gill & Sons,
(1899) 1 Ch 55.
(2) A, a shareholder in a company, sues B, C and D, the directors, to recover damages on
his own behalf for fraudulently inducing him to purchase shares by declaring an
illegal dividend; and he joins in the same suit a claim on behalf of himself and all
other shareholders (see r. 8 below) for repayment by the defendants to the company of
the amount of the dividend paid out by them. A is not entitled to join both causes of
action in one suit, because the right to relief claimed in his personal capacity and the
right to relief claimed by him as representing the shareholders do not arise out of the
same transaction or series of transactions - Stroud v. Lawson, (1898) 2 QB 44
(3) Four persons, each of whom separately took debentures on the faith of certain
statements in a prospectus issued by the directors of a company, joined as co-plaintiffs
in one suit against the directors, claiming damages for misrepresentations contained in
the prospectus. Held that as the several causes of action arose out of the same
transaction, and the case would involve common questions of fact the suit was
properly framed - Drinogbier v. Wood, (1899) 1 Ch. 393
(4) In a suit instituted by A, B and C jointly for an injunction against D, E and F, it is
alleged that all three defendants, as officers of several associations of workmen,
conspired to prevent all persons, not belonging to the associations, from obtaining
employment in place of the members of the associations. To constitute the overt acts
alleged to have been committed in furtherance of the conspiracy, it is averred that D,
E and F caused A, B and C to be molested, that E used threatening language to A, and
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that F assaulted C. It is proved that D was not a party to the conspiracy. As the claim
arises out of the same series of the conspiracy, A, B and C may join in the suit,
 notwithstanding that an injunction is granted against E and F only, and involves the
common question of fact and law whether the overt acts were committed in
furtherance of the conspiracy A, B and C may join in the suit, notwithstanding that an
injunction is granted against E and F only - Walters v. Green, (1899)

JOINDER AND MIS JOINDER

Order I Rule 3 provides for the joining of parties as Defendants in a suit. The plaintiff is
dominus litis having domain in his suit. He has a right and the prerogative to choose and
implead in a suit as the defendant, the person against whom he seeks relief. The plaintiff is
not obliged to implead a person as a defendant in the suit, against whom no relief is sought -
Furkan Ahmad v. Sayed Ahmad Raza, AIR 1995 All 337. That is, he cannot be compelled to
implead unwanted and unnecessary parties who are neither necessary nor proper parties for
deciding the dispute in the suit - Canara Bank v. Mettalica Industries Ltd., AIR 1997 Bom
296. The condition precedent is that the court must be satisfied that the presence of the party
to be added, would be necessary in order to enable the court to effectually and completely
adjudicate upon and settle all questions involved in the suit. To bring a person as party-
defendant is not a substantive right but one of procedure and the court has discretion in its
proper exercise. The object of the rule is to bring on record all the persons who are parties to
the disputes relating to the subject-matter so that the dispute may be determined in their
presence at the same time without any protraction, inconvenience and the multiplicity of the
proceedings may be avoided - Anil Kumar Singh v. Shiv Nath Mishra, (1995) 3 SCC 147. In
order that a party may be added as a defendant in the suit, the party should have a legal
interest in the subject-matter of the litigation, i.e., legal interest not as distinguished from an
equitable interest, but an interest which the law recognises A person who would be indirectly
or commercially effected by the result of the litigation cannot be impleaded as a party - State
Bank of India v. Krishna Pottery Udyog Assn, AIR 1994 HP 90. A necessary party may still
be declined the right to be impleaded in the suit if it appears to the court that the same shall
result in the abuse of the process of the court. Thus, in a case where the municipality as well
as the state machinery actively assisting a party to stall the reconstruction and ensuring that
the order of the court granting the right to reconstruction is flouted, the court would be
justified in not allowing the application of the state and the municipality to be included as a
party - State of Kerela v. Thressia (1995) Supp 2 SCC 449. However, where the original
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defendants are not impleaded in the special leave petition, the petition is liable to be
dismissed - Ram Kishan Ghosh v. Roop Chand Molla, (1997) 10 SCC 307. It cannot be
gainsaid that no decree in a suit can bind a person if he is not a party thereto or duly
represented therein. However, if there is a technical error in the drafting of the petition by a
lawyer, the litigant must not be made to suffer. An oral request to correct the description
would satisfy the procedural requirement in this case. However, in a case, an objection about
the petition being incompetent in absence of Union of India as a party, could not be allowed
to be raised after a lapse of six years, where inadvertently the case title describes the Union of
India as the Government of India - Murari Mohan Dev v. Secretary to the Government of
India, (1985) 3 SCC 120.

Order 1, r 8, Code of Civil Procedure, is an enabling provision and does not compel anyone
to represent many, if, by himself, he has a right of suit. This rule does not vest a right of suit
in a person and if he, by himself, has no right to sue, he cannot proceed to sue on behalf of
others by invoking the aid of O 1, r 8, Code of Civil Procedure.

MISJOINDER OF PARTIES

Order I, Rules 9 and 10 provide that in view of mis-joinder and non-joinder of parties, court
may proceed and decide the case. However, the judgment/decree shall not be binding upon a
non-party. A person claiming an independent title and possession adversely to the vendor is
not a necessary party as a proper decree can be passed in his absence - Kasturi V.
Iyyamperumal & Ors., AIR 2005 SC 2813. There would be misjoinder of parties if person
having a separate cause of act ion file a suit jointly - Premchand v. State of Madhya Pradesh,
AIR 1978 MP 173,but it would not be so in a case where a plaintiff files a suit against more
than one person and a common question of law or fact would arise if separate suits were filed
- Nagamalai Thevar v. Pandaram, AIR 1977 Mad 347.There is also no question of misjoinder
where the suit is in respect of the entire land, though the defendants are in possession of
separate portions of such land - Suresh Chandra v. Durlav Chandra, AIR 1968 Nag 36. In a
particular case, an application for the correction of misdescription of the defendant in the
plaint was allowed, the correction could not be incorporated in the plaint. However, the
misdescription did not mislead any party. Infact, the written statement and the documents in
appeal carried the correct name. It was held that the decree was valid - Patasibai v. Ratanlal,
(1990) 2 SCC 42. A misjoinder or non-joinder of parties is not fatal to the suit - Janokinath v.
Ramrunjan, (1879) ILR 4 Cal 949.Where there is a misjoinder of parties, the name of the
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plaintiff or the defendant who has been improperly joined may be struck out under r 10, sub-r
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(2) below, and the case may be proceeded with. However, misjoinder and non-joinder of
parties can sometimes lead to fatal consequences. In a proceeding for removal of trustees
appointed by the registrar under the Madhya Pradesh Public Trusts Act 1951, it was held that
the proceedings and order passed therein ought to have been dismissed for non-impleadment
of either trust or trustees whose removal was sought for - Ghanshyam Prasad Kurmi Patel v.
Yashwant Singh, AIR 2001 MP 68.Suppression of material facts is another aspect which is
taken very seriously by the courts. In one case, the respondent was granted occupancy rights
under the Karnataka Land Reforms Act 1962 and the order became final and writ petition
filed against it was dismissed. Subsequently, the appellant claiming occupancy right under
Karnataka Certain Imams Abolition Act 1978 in respect of the same land filed a writ petition
without impleading the respondent and without disclosing about the earlier order. It was held
by the Supreme Court that the appellant cannot claim any bona fide's in not impleading the
respondents or about nondisclosure of earlier order - Dattatreya v. Mahaveer, AIR 2004 SC
3362.In an application for temporary injunction, the plea of injunction was based upon
agreement between applicant and respondent which in its turn was based on representation
made by a third. It was held that joining of the third respondent, who was a necessary party,
would not make the suit bad for mis-joinder and the application cannot be dismissed on that
account rendering the claim of other parties invalid - Manoharamma Hotels and Investments
Pvt. Ltd. v. Aruna Hotels Ltd., AIR 2004 Mad 344.

UNIT II

 Jurisdiction – bars and suits – res sub judice – res judicata – bar to further suit –
foreign judgement conclusive of.

SUITS OF CIVIL NATURE

Meaning: Jurisdiction means power of a Court to hear and decide a case. Jurisdiction of a
Court means the power or the extent of the authority of a Court to hear and determine a
cause, to adjudicate and exercise any judicial power in relation to it. The Jurisdiction of a
Court means the extent of the authority of a Court to administer justice prescribed with
reference to the subject matter, pecuniary value or local limits. Lack of and illegal exercise of
jurisdiction: "A Court has jurisdiction to decide wrong as well as right. If it decides wrong,
the wronged party can only take the course prescribed by law for setting matters right; and if
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that course is not taken, the decision, however wrong, cannot be disturbed.” A decree passed
in the inherent lack of jurisdiction, is a nullity, and that nullity can be set up in any collateral
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proceedings. But in case, the Court has jurisdiction but it is irregularly exercised, the error
can be remedied with the help of procedures prescribed by law for setting that error right i.e.
in appeal or revision and when there is no such remedy or not availed of, the decision is final.
Where the party aggrieved does not take appropriate steps to have that error corrected, the
erroneous decree will hold good and will not be open to challenge on the basis of being a
nullity. Decision as to jurisdiction: Whenever the jurisdiction of the Court is challenged, the
Court has inherent jurisdiction to decide the said question. The allegations made in plaint
decide the forum and e jurisdiction does not depend upon the defence taken by the defendants
in the Written Statement.

Kinds of jurisdiction: Jurisdiction of a Court may be classified into the following four
categories- i. Territorial jurisdiction or Local jurisdiction: Each Court has vested power to
exercise jurisdiction within its own territorial or local limits beyond which it cannot go. ii.
Pecuniary jurisdiction: The term 'Pecuniary jurisdiction' connotes the value of the subject
matter of the suit. The High Courts and District Courts have no pecuniary limitation but the
other Courts have no such unlimited pecuniary jurisdiction. iii. Jurisdiction as to subject
matter of dispute: The different Courts have power to decide different kinds of suit, like the
Family Courts have jurisdiction to decide the suits/disputes relating to the matrimonial
matters. iv. Original and appellate jurisdiction: In its original jurisdiction, a Court entertains
and adjudicates suits while in its appellate jurisdiction a Court decides appeals.

Suit of Civil Nature

Introduction: A litigant having a grievance of a civil nature has a right to institute a civil suit
in a civil Court competent to hear and decide the matter unless its cognizance is either
expressly or impliedly barred by any statute. It is a fundamental principle of English law that
whenever there is a right, there is a remedy.

Meaning: According to S.9 a Civil Court has jurisdiction to try a suit, when the following two
conditions are satisfied: i. the suit is of a Civil ii. the cognizance of such a suit is neither
expressly nor impliedly barred. nature, and the word "civil" has not been defined in the Code.
The word "civil" means "pertaining to the private rights and remedies of a citizen as
distinguished from Criminal, political, etc." The expression "Civil Nature" is wider than the
expression "Civil Proceedings". Thus, a suit is of a civil nature if the private question therein
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relates to the determination of a civil right and enforcement thereof. It is not the status of
parties to the “suit, but the subject matter of it which determines whether or not the suit is one
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of a civil nature. The expression is "suit of a civil nature will cover private rights and
obligations of a citizen. Political and religious questions are not covered by that expression."

Explanation- 1 of S,9 says that a suit in which the right to property or to an office is
contested is a suit of a Civil Nature, notwithstanding that such right may depend entirely on
the decision of questions as to religious rites or ceremonies. Illustrations of suits of a civil
nature: The followings are the illustrations of the suits of a 'Civil Nature'- Suits relating to
right to property, right to worship, taking out of religious procession, right to share in
offerings, suits for damages for civil wrong, for breach of contract, for a specific relief, for
restitution of conjugal rights, for dissolution of marriage, for rent. for or on accounts; etc.,
etc.

Following are not suits of a civil nature:- Suits involving principally caste questions,
purely religious rights or ceremonies, for upholding mere dignity or honour or for recovery of
voluntarily payments or offerings. Cognizance not barred: Court to try all civil suits unless
barred- 'The Courts shall (subject to the provisions herein contained) have jurisdiction to try
all suits of a civil nature excepting suits of which their cognizance is either expressly or
impliedly barred."

THE COGNIZANCE OF A SUIT MAY BE BARRED EITHER EXPRESSLY OR

IMPLIEDLY.

a. Suits expressly barred: A suit is said to be "expressly barred" when it is barred by any
enactment for the time being in force by a competent Legislature, while keeping itself within
the field of legislation and without contravening any provision of the constitution. Every
presumption should be made in favour of the jurisdiction of the Civil Court and the
provisions of the exclusion of the jurisdiction of a Court must be strictly construed. It is well
settled that a civil court has inherent power to decide its own jurisdiction. The matters falling
within the exclusive jurisdiction of the Revenue Courts or under the Criminal Procedure
Code or the matters dealt with by special tribunals, under the relevant statutes; e.g., Bar
Council, Medical Council, University, etc., are expressly barred from the cognizance of a
civil court.

b. Suits impliedly barred: A suit is said to be "impliedly barred" when it is barred by

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general principle of law. Where an Act creates an obligation and enforces the performance in
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a specified manner, that performance cannot be enforced in any other manner, e.g., certain
suits of a civil nature are barred from the cognizance of a Civil Court on the grounds of
public policy. Thus, no suit shall lie for recovery of costs incurred in Criminal prosecution or
for enforcement of a right upon a contract hit by Section 23 of Indian Contract Act, 1872 or
against any Judge for acts done in the course of his duties. A Civil court has no jurisdiction to
adjudicate upon disputes of political nature.

Exclusion of jurisdiction of civil court: The jurisdiction of a civil court is ambiguous except
to the extent it is excluded by law or arising from such law. In a landmark judgement of
Dhulabhai v. State of M.P (AIR 1969 SC 78 ) Chief Justice Hidayatullah summarised the
following principles relating to the exclusion of jurisdiction of civil courts:  When a tribunal
is constituted through a special enactment, the jurisdiction of civil courts must be held to be
excluded if there is adequate remedy to do what the civil courts would normally do in a suit.
Such a provision, however, does not exclude those cases where the provisions of a particular
Act have not been complied with or the statutory tribunal has not acted in conformity with
fundamental principles of judicial procedure.  Where there is an express bar of jurisdiction
of a court, an examination of the provisions of a specific Act to find the adequacy or
sufficiency of the remedies provided might be relevant however this isn’t decisive for
supporting the jurisdiction of a civil court.

 Challenge to the provisions of a specific Act as ultra vires can’t be brought before tribunals
constituted under that Act. Indeed, even the High Court can’t go into that question on a
revision or reference from decisions of tribunals.

 When a provision is already declared unconstitutional or the constitutionality of any

provision is to be challenged, a suit can be filed. A writ of certiorari may incorporate a course
for a refund if the case is within the time recommended by the Limitation Act however it’s
compulsory but a necessary solution for supplanting a suit.

 Where the specific Act contains no machinery for a refund of tax collected in excess of
constitutional limits or is illegally collected, a suit lies.

 Questions of the accuracy of an assessment, apart from its constitutionality, are for the
decision of the authorities and civil suit doesn’t lie if the orders of the authorities are
pronounced to be conclusive or there is an express prohibition in a specific Act. In either
case, the provisions of a specific Act must be examined for relevant enquiry.
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 The exclusion of the jurisdiction of a civil court isn’t ready to be derived unless the
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conditions above set down apply.

 If a dispute is not an industrial dispute, nor does it relate to enforcement of any other right
under the Act, the remedy lies only in a civil court.

 If a dispute is an industrial dispute emerging out of a right or liability under the general or
common law and not under the Act, the jurisdiction of a civil court is alternative, leaving it to
the election of a suitor or person concerned to choose his remedy for the relief which is
competent to be granted in a particular remedy.

 If an industrial dispute relates to the enforcement of a right or an obligation created under

the Act, then the only remedy available to a suitor is to get an adjudication under the Act.

 If the right which is sought to be enforced is a right created under the Act such as Chapter
V-A then the remedy for its enforcement is either Section 33-C or the raising of an industrial
dispute, as the case may be.

RES SUB JUDICE AND RES-JUDICATA

Section-10: Provides No court shall proceed with the trial' of any suit in which the matter in
issue is also directly and substantially in issue in a previously instituted suit between the same
parties or between parties under whom they or any of them claim, litigating under the same
title, where such suit is pending in the same or any other court in India having jurisdiction to
grant the relief claimed, or in any other Court beyond the limits of India established or
constituted by the Central Government and having like jurisdiction or before he Supreme
Court.”

Explanation: The pendency of a suit in a foreign Court does not preclude the Courts in India
from trying a suit founded on the same cause of action. Object: The object of S.1 0 is to
prevent Courts of concurrent jurisdiction from simultaneously trying two parallel suits
between the same parties in respect of the same matter in issue. The section intends to
prevent a person from multiplicity of proceedings and to avoid a conflict of decisions.

Conditions: This section will apply where the following conditions are satisfied:

1) Presence of Two Suits: Where there are two suits, one previously instituted and the other
subsequently instituted.
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2) Matter in Issue: The matter in issue in the subsequent suit must be directly and
substantially in issue in the previous suit.
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3) Same Parties: Both the suits must be between the same parties or between their
representatives.

4) Pendency of Suit:

The previously instituted suit must be pending:- a. in the same Court in which the subsequent
suit is brought, or b. in any other Court in India, or c. in any Court beyond the limits of India
established or empowered by the Central Government, or d. before the Supreme Court. e.
Jurisdiction: The Court in which the previous suit is instituted must have jurisdiction to grant
the relief claimed in the subsequent suit. f. Same Title: Such parties must be litigating under
the same title in both the suits. Decree passed in contravention of S.10: It is the trial and not
the institution of the subsequent suit which is barred under this section and therefore, a decree
passed in contravention of S.10 is not a nullity, and the same can be executed.

Res-Judicata

"Res-judicata" consists of two Latin Words, 'Res' means a thing or a matter or a question and
'Judicata' means adjudicated, adjudged or decided. Therefore, the expression 'Res-judicata''
means "a thing or matter already adjudged or adjudicated or decided". Res-judicata means "a
final judicial decision pronounced by a judicial tribunal having competent jurisdiction over
the cause or matter in litigation, and over the parties thereto." The principal of Res judicata is
based on the need of giving finality to judicial decisions. When a matter- whether on a
question of fact or a question of Law-has been decided between two parties in one suit or
proceeding and the decision is final, either because no appeal was taken to a higher Court or
because the appeal was dismissed or no appeal lies, neither party will be allowed in a future
suit or proceeding between the same parties to canvass the matter again.

Section 11:"No court shall try any suit or issue in which the matter directly and substantially
in issue has been directly and substantially in issue in a former suit between the same parties
or between parties under whom they or any of them claim, litigating under the same title, in a
court competent to try such subsequent suit or the suit in which such issue has been
subsequently raised and has been heard and finally decided by such court.
15

Explanation-I: The expression "Former Suit" shall denote a suit which has been decided prior
to the suit in question whether or not it was instituted prior thereto.
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Explanation-II: For the purposes of this section the competence of Court shall be determined
irrespective of any provisions as to a right of appeal from the decision of such court.

Explanation-III: The mater above referred to must in the former suit have been alleged by one
party and either denied or admitted, expressly or impliedly, by the other.

Explanation-IV: Any matter which might and ought to have been made ground of defence or
attack in such former suit shall be deemed to have been a matter directly and substantially in
issue in suit.

Explanation-V: Any relief claimed in the plaint, which is not expressly granted by the degree,
shall, for the purposes of this section be deemed to have been refused.

Explanation- VI: Where persons litigate bona fide in respect of a public right or of a private
right claimed, in common for themselves and others, all persons interested in such right shall,
for the purpose of this section, be deemed to claim under the persons so litigating.
Explanation-

VII: The provisions of this section shall apply to a proceeding for the execution of a decree
and references in this section to any suit, issue or former suit shall be construed as references,
respectively, to a proceeding for the execution of the decree" question arising in such
proceeding and a former proceeding for the execution of that decree.

Explanation-VIII: An issue heard and finally decided by a Court of limited jurisdiction,

competent to decide such issue, shall operate as res judicata in a subsequent suit,
notwithstanding that such Court of limited jurisdiction was not competent to try such
subsequent suit in which such issue has been subsequently raised,"

Object: The doctrine of Res Judicata is based upon the following four maxims-

a. Nemo debet lis vexari pro una et eadem causa: no man should be vexed twice over for the
same cause;

b. Interest republicae ut sit finis Iitium: it is in the interest of the State that there should be an
end to a litigation;
16

c. Res judicata pro veritate occipitur: an judicial decision must be accepted as correct.
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d. Res judicata pro veritate habetur: an adjudicated matter shall be deemed correct.
To understand the doctrine of Res-judicata, it is essential to know the meaning of the
following terms- Matters in Issue: The expression 'matter in issue' means the right litigated
between the parties. The matters in issue may be Directly and substantially in issue: "A
matter is 'directly and substantially in issue' if it is necessary to decide it in order to adjudicate
the principal issue and if the judgment is based upon at decision." Directly: A matter cannot
be said to be directly in issue if the judgment stands whether the fact exists or does not exist.
Substantially: means essentially, materially or in a substantial manner. A matter can be said
to be substantially in issue if it is of importance for the decision of a case. been directly In
order that a matter decided in a former suit may operate as res judicata in a subsequent suit, it
must have and Actually in issue: subsequently in issue in the former suit. A matter is actually
in issue when it is in issue directly and substantially and a competent Court decides it on
merit. A matter is actually in issue when it is alleged by one party and denied or admitted by
the other Constructively in issue : A matter can be said be constructively in issue when it
"might and ought" to have been made a ground of defence or attack in the former suit. A.
matter is constructively in issue when it might and ought to have been made a ground of
defence or attack in the former suit. Collaterally or incidentally in issue:"A matter is
'collaterally or incidentally in issue' if it is necessary to decide it in order to grant relief to a
plaintiff or to a defendant and the decision on such issue either way does not affect the final
judgment. A collateral or incidental issue means an issue which is ancillary to the direct and
substantive issue. It refers to a matter in respect of which no relief is claimed and yet it is put
in issue to enable the Court to adjudicate upon the matter which is directly and substantially
in issue. Decisions on the matters collateral and incidental to the main issues in the case will
not operate as res-judicata.

To constitute a matter as Res judicata U/s 11, the following conditions must be satisfied –

a. Matter in Issue : The matter directly and substantially in issue in the subsequent suit or
issue must be the same matter which was directly and substantially in issue either actually or
constructively in the former suit.

b. Same Parties: The former suit must have been a suit between the same parties or between
parties under whom they or any of them claim.
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c. Same Title: Such parties must have been litigating under the same title in the former suit. d.
Competent Court: The court which decides of the former suit must be a court competent to
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try the subsequent suit or the suit in which such issue is subsequent raised. e. Final decision
of former suit: The matter directly and substantially in issue in the subsequent suit must have
been heard and finally decided by the court in the former suit.

CONSTRUCTIVE RES-JUDICATA

The doctrine of constructive Res-judicata is provided in the Explanation IV of section 11

which explains that where the parties have had an opportunity of controverting a matter, that
should be taken to be the same thing as if the matter has been actually controverted and
decided. The object of Expl. IV is to compel the plaintiff or the defendant to take all the
grounds of attack or defence which were open to him. The rule of Constructive res judicata is
an artificial form of res judicata, and provides that if a plea could have been taken by a party
in a proceeding between him and his opponent, he should not be permitted to take that plea
against the same party in a subsequent proceeding with reference to the same subject matter.
The principle underlying Expl. IV is that where the parties have had an opportunity of
controverting a matter that should be taken to be the same thing as if the matter had been
actually controverted and decided. It is true that where a matter has been constructively in
issue it cannot be said to have beer actually heard and decided. It could only be deemed to
have been heard and decided.

Distinction between Res Sub – Judice (S.10) and Res- Judicata (S.11)

The principle of res- judicata applies in between two stages in the same Litigation ". It is well
settled that principle of res-judicata can be invoked not only in separate subsequent
proceedings, they also get attracted in subsequent stage of the same proceedings. Once an
order made in the course of a proceeding becomes final, it would be binding at the
subsequent stage of that proceeding ….”

FOREIGN JUDGMENT

Meaning: S.2(6) defines the foreign judgment as the "judgment of a foreign Court". The term
foreign Court has been defined in s. 2(5) as a Court situate outside India and not established
or continued by the authority of the Central Government. Object: The judgment of a foreign
Court is enforced on the principle that where a Court of Competent Jurisdiction has
adjudicated upon a claim, a legal obligation arises to satisfy that claim. Section 13 embodies
the principle of res-judicata in foreign judgments. This provision embodies the principle of
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private International Law that a judgment delivered by a foreign Court of competent

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jurisdiction can be enforced in India. Example: A sues B in a foreign Court. The suit is
dismissed. The judgment will operate as a bar to a fresh suit by A against B in India on the
same cause of action. Conclusive Nature: Section 13 of the Code provides that a foreign
judgment shall be conclusive as to any matter thereby directly adjudicated upon between the
same parties or between- parties under whom they or any of them claim litigating under the
same title except as specified in clauses (a) to (f) of Sec. 13. When Foreign Judgment Not
Binding: According to Section 13 under the following six cases, a foreign judgment shall not
be conclusive - 1) 2) 3) Foreign Foreign Judgment not Judgment against by International a
not Competent on or Indian Court; merits; Law; 4) Foreign Judgment opposed to Natural
Justice; Foreign Judgment obtained by fraud; 5) Foreign Judgment founded on a breach of
Indian Law; Foreign Judgment Not by Competent Court: A foreign judgment must be
pronounced by a Court of competent jurisdiction and must be by a Court competent both by
the law of the State which has constituted it and in an International sense and it must have
directly adjudicated upon the 'matter' which pleaded as res- judicata. Only the judgment and
not the reasons for the judgment is conclusive. Foreign Judgment Not on Merits: A judgment
is said to be given on merits when, after taking evidence and application of mind, the Judges
decide the case one-way or the other. The dismissal of suit for default of appearance or non-
production of the document by the plaintiff or passing of decree due to default of defendant in
furnishing security are not on merits and cannot be conclusive. Foreign Judgment Against
International or Indian Law: The mistake of International or Indian Law must be apparent on
the face of the proceedings. when a foreign judgment is founded on a jurisdiction or on a
ground not recognized by International or Indian Law, it is a judgment which is in defiance of
the law. Hence, it is not conclusive of the matter adjudicated therein and, therefore, not
enforceable in this country. Foreign Judgment Opposed to Natural Justice: The judgment
pronounced by a Foreign Court must be after the observation of the judicial process, i.e., the
Court rendering the Judgment must observe the minimum requirements of Natural Justice.
The judgment to be conclusive must be composed of impartial persons, act fairly, without
bias, and in good faith; it must give reasonable notice to the parties to the dispute and to
afford each party adequate opportunity of presenting his case. Foreign Judgment Obtained by
Fraud: It is the fundamental Principle of Private international Law that a Foreign Judgment is
obtained by fraud, it will not operate as res-judicata. It is the settled preposition of law that a
judgment or decree obtained by playing fraud on the Court is a nullity and non-est in the eye
19

of law. Such a judgment/decree by the first Court or by the highest Court has to be treated as
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a nullity by every Court, whether superior or inferior. It can be challenged in any Court even
in collateral proceedings. Foreign Judgment Founded On Breach of Indian Law: It is implicit
that the foreign law and foreign judgment would not offend against our public policy. Thus, a
foreign judgment .for a gambling debt or on a claim which is barred under the Law of
Limitation in India is not conclusive. Presumption as to Foreign Judgments: Section 14
provides that "the Court shall presume, upon the reduction of any document purporting to be
certified copy of the foreign judgment, that such judgment pronounced by a Court of
Competent jurisdiction unless the contrary appears on the record; but such presumption may
be displaced by proving want of jurisdiction."

Enforcement of Foreign Judgments: A conclusive judgment U/s 13 can be enforced in India

in the following two ways:-

1) By Instituting a suit on such Foreign Judgment: A foreign judgment may be enforced by

institution of a suit within a period of 3 years from the date of the foreign judgment.

2) By Institution of Executing Proceedings: A foreign judgment may be enforced by way of

execution proceedings as per specified U/s 44-A of the Code and where all the conditions of
S. 13 (a) to (f) are satisfied. Effect of death, marriage and insolvency of parties i. ii. iii. iv.
Death of a party (rule 1 to 6, 10A) Marriage of a party (rule 7) Insolvency of a party (rule 8)
or; Assignment of interest (rule 10).

UNIT 3

SUMMONS AND PLEADING

Meaning: The word summons has not been defined in the Code, but according to the
dictionary meaning; "A summons is a document issued from the office of a court of justice,
calling upon the person to whom it is directed to attend before a judge or office of the court
for a certain purpose."

Essentials of summons: Every summons shall be signed by the judge or such officer
appointed by him and shall be sealed with the seal of the court [Rule1 (3)] and every
summons shall be accompanied by a plaint or if so permitted, by a concise statement thereof.
[Rule 2]

Contents of Valid Summons:

20

a. The summons must contain a direction whether the date fixed is for settlement of issues
only or for final disposal of the suit (Rule 5).
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b. In cases of summons for final disposal of the suit, the defendant shall be directed to
produce his witnesses (Rule 8).

c. The Court must give sufficient time to the defendant to enable him to appear and answer
the claim of the Plaintiff on the day fixed (Rule 6).

d. The summons shall contain an order to the defendant to produce all documents in his
possession or power upon which he intends to rely on in support of his case (Rule 7).

Summons to Defendant: Section 27: Where a suit has been duly instituted, a summon may
be issued to the defendant to appear and answer the claim and may be served in the manner
prescribed on such day not beyond 30 days from the date of the institution of the plaint.

Order V: Rule 1 (1) Rule 1(1): When a suit has been duly instituted, a summon may be issued
to the defendant to appear and answer the claim and to file the written statement of his
defence, if any, within thirty days from the date of the service of the summons on that
defendant; Provided that no such summon shall be issued when a defendant has appeared at
the presentation of Plaint and admitted the plaintiff's claim; Provided further that where the
defendant fails to file the written statement within the said period of thirty days, he shall be
allowed to file the same on such other day as may be specified by the Court, for reasons to be
recorded in writing, but which shall not be later that ninety days from the date of service of
summons.

Appearance of Defendant [Order V Rule 1 (2)]

Rule 1(2) - A defendant to whom a summons has been issued under sub-rule (1) may appear
a. in person, or b. by a pleader duly instructed and able to answer all material questions
relating to the suit, or c. by a pleader accompanied by some person able to answer all such
questions. The Court, however, may order the defendant or plaintiff to appear in person (Rule
3). Rule 1 (3): Every such summons shall be signed by the judge or such officer as he
appoints, and shall be sealed with the seal of the Court.

Exemption from Personal Appearance :

Order V Rule 4 No party shall be ordered to appear in person 1. unless he resides- a. within
the local limits of the Court's ordinary original jurisdiction, or b. without such limits but at a
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place less than fifty or (where there is railway or steamer communication or other established
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public conveyance for five- sixths of the distance between the place where he resides and the
place where the Court is situating) less than two hundred miles distance from the Court-
house. Or 2. Who is a woman not appearing in person (Section 132), or 3. Who is entitled to
exemption under the Code (Section 132).

Mode of service of summons: Service of summons shall be made by delivering or tendering a

copy thereof signed by the Judge or such officer as he appoints in this behalf and sealed with
the seal of the court. Personal The Code prescribes four principal modes of serving a
summons to a defendant: i) or ii) iii) Substituted Service direct Service; by iv) Service by
Plaintiff. (Rule 9-A).

SUMMONING AND ATTENDANCE OF WITNESSES (S.31 AND ORDER XVI)

Summons to Witnesses: According to section 31, the provisions in sections 27,28 and 29
shall apply to summonses to give evidence or to produce documents or other material objects.
Rule 8 of Order VXI states that every summons under Order VXI, except under rule 7-A,
shall be served in the same manner as a summons to a defendant, and the rules of Order V
shall apply.

Attendance of Witnesses: On or before such date, which may be fixed by the Court and shall
not be later than 15 days from the date on which issues are settled, a list of proposed
witnesses to give evidence or to produce document and obtain summonses to such persons for
their attendance in Court, shall be presented in the Court by the parties. A party shall file an
application stating therein the purpose for which the witness is proposed to be summoned to
the Court or to such officer as may be appointed by the Court in this behalf within five days
of presenting the list of witnesses under rule 1(1). On being shown sufficient cause for not
mentioning that name of the witness in the list produced U/rule 1 (1), a party may be
permitted by the Court, to call any witness whose name has not been mentioned in the list of
evidence. Expenses of witness shall be paid into Court by a party applying for summons,
within a period to be fixed which shall not be later than 7 days18 from the date of making
application under Rule 1 (4). Where the summons is served directly by the party on a witness,
the party or his agent shall pay the expenses referred to in rule 2(1) to the witness. Summons
given to Party for Service: (Rule 7 -A) On an application of any party for the issue of
summons the Court may permit and then, shall deliver the summons to such party for service,
22

and such summons shall be affected by or on behalf of such party by delivering or tendering
to the witness personally a copy thereof. The provisions of Rule 6 shall apply to summons to
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produce documents while the procedure provided in rue 10 shall be applicable where witness
fails to comply With summons and rule 12 where the witness fails to appear. Where any party
to a suit is required to give evidence or to produce a document, the provisions as to witnesses
shall apply to him so far as they are applicable. Witnesses not to be Ordered to attend in
Person: As per rule 19 of Order XVI, no one shall be ordered to attend in person to give
evidence unless he resides:- a. within the local limits of the Court's Ordinary Original
Jurisdiction, or b. without such limits but at a place less than one hundred or (where there is a
railway or steamer communication or other established public conveyance for five-sixths of
the distance between' the place where he resides and the place where the Court is situate) less
than five hundred kilometres distances from the Court house: Provided that where transport
by air is available between the two places mentioned in this rule and the Witness is paid the
fare by air, he may be ordered to attend in person.

PLEADING (ORDER VI)

Meaning: According to order VI Rule 1, pleading shall mean plaint or written statement.
"Pleadings are statements in writing drawn up and filled by each party to a case, stating what
his contentions will be at the trial and giving all such details as his opponent needs to know in
order to prepare his case in answer. In proceedings before a Civil Court pleading may include
a petition and reply thereto by the respondent whether to the form of an affidavit or
otherwise. Plaintiff's pleading is called a plaint while the defendant's pleading is called a
Written Statement

Object: The object of pleading is to bring parties to definite issues and to diminish expense
and delay and to prevent surprise at the hearing. "The object of the rule is twofold. First is to
afford the other side intimation regarding the particular facts of his case so that they may be
met by the other side. Second is to enable the Court to determine what is really the issue
between the parties." "Provisions relating to pleadings in civil cases are meant to give to each
side intimation of the case of the other so that it may be met to enable Courts to determine
what is really at issue between parties, and to prevent deviations from the course which
litigation on particular causes of action must lie.

The entire law governing the "Pleading" is contained in the provisions of Order VI
(Pleading), Order VII (Plaint) and Order VIII (Written Statement) of the Code. Apart from
23

this some important fundamental procedural matters relating to the practice are the provisions
of Order I (Parties to suit), as to the manner in which a suit should be framed Order II (Frame
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of suit), as to who should sign the pleading Order III and Order IV (Institution of suit) and as
to taking out of summons and their services Order V.

Fundamental Rules of Pleading: The general rule regarding the pleadings is as under:

1) Pleading must state facts and not law;

2) Only the material facts must be stated;

3) Pleading should not include the evidence, and

4) The facts stated must be in concise form.

PLAINT (ORDER VII)

Every civil suit shall be instituted by presenting a plaint to the Court or such officer as it
appoints in that behalf. Plaint is a pleading of the plaintiff. The word has not been defined is
the code but it can be said to be a statement of claim, a document, by presentation of which
the suit is instituted.

Particulars of Plaint:

1) the a) the name of the Court in which the suit if brought; b) name, description and
place of residence of c) the name, description and place of residence of the defendant,
so far as they can be ascertained; the d) where the plaintiff or the defendant is a minor
or a person of unsound mind, a statement to that affect; e) the facts constituting the
cause of action and when it arose; f) the facts showing that the Court has jurisdiction;
g) the relief which the plaintiff claims; plaintiff; h) where the plaintiff has allowed a
set off or relinquished a portion of his claim the amount so allowed or relinquished,
and i) a statement of the value of the subject matter of the suit for the purposes of
jurisdiction and of Court fees, so far as the case admits.
2) In case of recovery suit the precise amount claimed or where it is for the accounts or
mesne profits or for moveable in the possession of the defendant or for debts, which
cannot be determined, the approximate amount or value thereof.
3) The description of the immovable property.
4) The interest and liability of the defendant.
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5) If the suit is filed in the representative character it must state the facts about an actual
existing interest of the plaintiff in the subject matter and that all steps necessary have
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been taken by him to institute such suit.

6) The grounds upon which the exemption from the law of limitation where the suit is
time barred.

RETURN OF PLAINT RULE 10:

1) Subject to the provisions of Rule 1, the plaint shall at any stage of the suit be returned
to be presented to the Court in which it should have been instituted.

2) Explanation: For the removal of doubts, it is hereby declared that a Court of Appeal or
Revision may direct, after setting aside the decree passed in a suit, the return of the plaint
under this sub-rule.

3) Procedure on returning plaint: On returning a plaint the judge shall endorse thereon the
date of its presentation and return, the name of the party representing it, and a brief
statement of the reasons for returning it.

Rule 10-A: Power of Court to fix a date of appearance in the Court where plaint is to be
filed after its return - 1) Where, in any suit, after the defendant has appeared, the Court is
of opinion that the plaint should be returned, it shall, before doing so, intimate its decision
to the plaintiff. 2) Where an intimation is given to the plaintiff under sub-rule (1), the
plaintiff may make an application to the Court - a. specifying the Court in which he
proposes to present the plaint after its return, b. praying that the Court may fix a date for
the appearance' of the parties in the said Court, and c. requesting that the notice of the
date so fixed may be given to him and to the defendant. 3) Where an application is made
by the plaintiff under sub-rule (2), the Court shall, before returning the plaint and
notwithstanding that the order for return of plaint was made by it on the ground that it has
no jurisdiction to try the suit,- a. fix a date for appearance of the parties in the court in
which the plaint is proposed to be presented, and b. give to the plaintiff and to the
defendant notice of such date for appearance. Where notice of the date for appearances is
given under Sub-rule (3),- 4) Where notice of the date for appearances is given under
Sub-rule (3) – a. It shall not be necessary for the Court in which the Plaint is presented
after its return, to serve the defendant with a summon for appearance in the suit, unless
that court, for reasons to be recorded, otherwise directs, and b. the said notice shall be
deemed to be a summons for the appearance of the defendant in the suit in which the
25

plaint is presented on the date so fixed by the Court by which the plaint was returned. 5)
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Where the application made by the plaintiff under Sub-rule (2) is allowed by the Court,
the plaintiff shall not be entitled to appeal against the order returning the plaint.
Rejection of Plaint (Order 7 Rule 11)

Rule 11: The Plaint shall be rejected in the following cases:- a. Where it does not disclose
a cause of action. b. Where the relief claimed is undervalued, and the plaintiff on being
required by the Court to correct the valuation within the time to be fixed by the Court
fails to do so. c. Where the relief claimed is properly valued, but the plaint is written upon
paper insufficiently stamped, and the plaintiff on being required by the Court to supply
the requisite stamp- paper within the time to be fixed by the Court, fails to do so. d.
Where the suit appears from the statement in the plaint to be barred by any law. e. Where
it is not filed in duplicate. f. Where the plaintiff fails to comply with the provisions of
Rule-9. Provided that the time fixed by the Court for the correction of the valuation or for
the supply of the requisite stamp- papers shall not be extended unless the Court, for
reasons to be recorded, is satisfied that the plaintiff was prevented by the cause of an
exceptional nature from correcting the valuation or supplying the requisite stamp-papers,
as the case may be, within the time fixed by the Court and that refusal to extend such time
would cause grave injustice to the plaintiff. Rule 12: Procedure on rejecting plaint: Where
a plaint is rejected the judge shall record an order to that effect with the reasons for such
order. Rule 13: Where rejection of plaint does not preclude presentation of fresh plaint:
The rejection of the plaint on any of the grounds hereinbefore mentioned shall not of its
own force preclude the plaintiff from presenting a fresh plaint in respect of the same
cause of action.

Procedure on Admitting Plaint : Where the plaint of plaintiff has been admitted and the
Court directs that the summons be served on the defendant as provided in Order V, Rule
9, the Court will direct the plaintiff to present as many copies of the plaint on plain paper
as there are defendants within 7 days from the date of such order along with requisite fee
for service of summons on the defendants. Production of Documents on Which Plaintiff
Sues or Relies : 1. Where a plaintiff sues upon a document or relies upon document in his
possession or power in support of his claim, he shall enter such documents in a list, and
shall produce it in Court when the plaint is presented by him and shall, at the same time
deliver the document and a copy thereof, to be filed with the plaint. 2. Where any such
document is not in the possession or power of the plaintiff, he shall, wherever possible,
26

state in whose possession or power it is. 3. A document which ought to be produced in

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Court by the plaintiff when the plaint is presented, or to be entered in the list to be added
or annexed to the plaint but is not produced or entered accordingly, shall not, without the
leave of the Court, be received in evidence on his behalf at the hearing of the suit. But,
the provision of Rule 14 shall not apply to the following documents : i) the document
produced for the cross examination of the plaintiff witness, or ii) handed over to a witness
merely to refresh his memory.

WRITTEN STATEMENT (ORDER VIII)

Meaning: A Written Statement is a pleading of the defendant for submission of every

material fact to answer the allegation made by the plaintiff in his plaint. The word has not
been defined in the code, but the same may be defined as under: A Written Statement is
the pleading of the defendant wherein he deals with every material fact alleged by the
plaintiff in his plaint and also states any new facts in his favour or takes legal objections
against the claim of the plaintiff. Preparation of Written Statement: All relevant rules of
pleading apply to a Written Statement and it should be prepared with great caution. In the
Written Statement firstly, the defendant should mention the name of the Court trying the
suit, then-1the names of the parties. It is not necessary to mention the names, directions
and place of residence of all the parties in the title of the Written Statement, but
mentioning the name of the 1st plaintiff and 1st defendant is enough. The number of suits
may be mentioned thereafter. The defendant thereupon replies to each Para of the plaint
except where any preliminary objection like maintainability of the suit, locus standi of the
plaintiff to file suit, the non-joinder or misjoinder of parties as to the jurisdiction of the
Court or as to limitation, for consideration which is necessary in the 1 'instance before the
suit is tried on merits. Rules of Defence: The denial in a Written Statement must be
specific and not general. The grounds alleged by the plaintiff must be denied by a
defendant specifically with each allegation of fact of which he does not admit the truth,
except damages. The denial should not be vague or evasive. Every allegation of fact in
the plaint, if not denied specifically or by necessary implication, or stated to be not
admitted in the pleading of the defendant, shall be taken o be admitted except as regards a
person under disability. In cases where the defendant has not filed a pleading, it shall be
lawful for the Court to pronounce judgment on the basis of the facts in the plaint except
as against a person under disability, but the Court, in its discretion, may require any such
fact to be proved. Whenever a judgment is pronounced under Rule 2 decree shall be
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drawn up in accordance with such judgment. Time to File Written Statement: The
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defendant shall file his Written Statement of his defence within 30 days from the date of
service of summons on him, but the above time may be extended by the Court further for
a period, which shall not be later than 90 Days from the date of service of summons.
Extension of time to Present Written Statement: Ordinarily the time schedule prescribed
by Order VIII, Rule 1 has to be honoured. The extension of time sought for by the
defendant from the Court whether within 30 days or 90 days, as the case may be, should
not be granted just as a matter of routine and merely for the asking, more so, when the
period of 90 days has expired. The extension of time shall be only by way of exception
and for reasons to be recorded in writing, how sever brief they may be, by the Court.
Subsequent Pleadings : According to Order VIII, Rule 9, no pleading subsequent to the
Written Statement of a defendant other than by way of defence to set off or counter -
claim shall be presented except by the leave of the Court, but the Court may, at any time
require a Written Statement or additional Written Statement from any of the parties and
fix a time of not more than 30 days for presenting the same. Failure to present Written
Statement: Where a party fails to file a Written Statement as required under Rule 1 or
Rule 9 within a time permitted or fixed by the Court, the Court shall pronounce judgment
against him or make such order as it thinks fit and on such judgment a decree shall be
drawn up. The provisions regarding duty of defendant to produce documents upon which
relief is claimed or relied upon by him have been given in Order VIII, Rule 1-A.

SET-OFF (ORDER VIII, RULE 6)

Meaning: Set-off means a claim set up against another. It is a counter claim against the
plaintiff but in essence it is a form of defence in which the defendant while
acknowledging the justice of the plaintiffs claim sets up a demand of his own to counter
balance it either in whole or in part. The doctrine of set – off is included in Order VIII,
Rule 6 and is as under: 1. Where in a suit for recovery of money the defendant claims to
set-off against the plaintiff's demand any ascertained sum of money legally recoverable
by him from the plaintiff, not exceeding the pecuniary limits of the jurisdiction of the
Court, and both parties fill the same character as they fill in the plaintiffs suit, the
defendant may, at the first hearing of the suit, but not afterwards unless permitted by the
Court, present a written statement containing the particulars of the debt sought to be set-
off. 2. Effect of set-off: The written statement shall have the same effect as a plaint in a
cross- suit so as to enable the Court to pronounce a final judgment in respect both of the
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original claim and of the set-off; but this not after the lien, upon the amount decreed, of
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any pleader in respect of the costs payable to him under the decree. 3. The rules relating
to a written statement by a defendant apply to a written statement in answer to a claim of
a set-off. Example : A sues B on a bill of exchange for Rs. 500. B holds a judgment
against A for Rs. 1000. The two claims both definite, pecuniary demands may be set-off.
A sues B for compensation on account of trespass. B holds a promissory- note for Rs.
1,000, from A and claims to set-off that amount against any sum that A may recover in
the suit. B may do so, for as soon as A recovers, both sums are definite pecuniary
demands.

Counter-Claim (Rules 6-A to 6-G)

Meaning: It is a claim made by the defendant in a suit against the plaintiff and can be
enforced by a cross action. Counter claim is a cause of action in favour of the defendant
against the plaintiff. A counter-claim is a weapon in the hands of a defendant to defeat the
relief sought by the plaintiff against him and may be set-up only in respect of a claim for
which the defendant can file a separate suit and therefore, it is substantially a cross action.
The Court has power to treat the counter claim as a cross suit and hear the original suit
and counter claim together if the counter claim is properly stamped. Order VIll, Rule 6-A
deals with the counter claim, which is as under: a. A defendant in a suit may, in addition
to his right of pleading a set-off under rule 6, set up, by way of counter- claim against the
claim of the plaintiff, any right or claim in respect of a cause of action accruing to the
defendant against the plaintiff either before or after the filing of the suit but before the
defendant has delivered defence or before the time limited for delivering his defence has
expired whether such counter claim is in the nature of a claim for damages or not:
Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction
of the Court. b. Such counter claim shall be the same effect as a cross- suit so as to enable
the Court to pronounce a final judgment in the same suit, both on the original claim and
on the counter claim. c. The plaintiff shall be at a liberty to file a written statement in
answer to the counter-claim of the defendant within such period as may be fixed by the
Court. d. The counter-claim shall be treated as a plaint and governed by the rules
applicable to the plaints.

Rule 6 B: Counter Claim to be stated: Where any defendant seeks to reply upon ground as
supporting a right of counter-claim, he shall, in his written statement, state specifically
that he does so by way of counter-claim.
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Rule 6 C : Exclusion of Counter Claim: Where a defendant sets up a counter-claim and

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the plaintiff contends that the claim thereby raised ought not to be disposed of by way of
counter-claim but in an independent suit, the-plaintiff may, at the time before issues are
settled in relation to the counter-claim, apply to the Court which may, on the hearing of
such an application make such an order as it thinks fit.

Rule 6 D: Effect of discontinuance of suit: If in any case in which the defendant sets up a
counter claim, the suit of the plaintiff is stayed, discontinued or dismissed, the counter-
claim may nevertheless be proceeded with.

Rule 6 E : Default of plaintiff to reply Counter- Claim: If the plaintiff makes default in
putting in a reply to the counter claim made by the defendant, the Court may pronounce
judgment against the plaintiff in relation to the counter claim made against him, or make
such order in relation to the counter claim as it thinks fit.

Rule 6 F : Relief to defendant where Counter Claim succeeds: Where in any suit a set-off
or counter- claim is established as a defence against the plaintiff's claim and any balance
is found due to the plaintiff or the defendant, as the case may be, the Court may give
judgment to the party e'1titled to such balance.

Rule 6 G : Rules relating to written statement to apply : The rules relating to a written
statement by a defendant shall apply to a written statement filed in answer to a counter
claim.

Rule 7: Defence or set-off or counter- claim founded upon separate grounds: Where the
defendant relies upon several distinct grounds of defence of set-off or counter - claim
founded upon separate and distinct facts, they shall be stated, as far as may be separately
and distinct.

UNIT IV

Procedure during hearing – appearance and consequence of nonappearance – ex-parte

procedure – discovery and inspection – interrogatories admission – production –
impounding of documents.

The next stage is framing issues. The job of framing issues is assigned to a judge. Issues
are framed considering provisions of order 14 rule 1 of C.P.C. Rule 1 sub rule (1) states,
"Issues arise when a material proposition of fact or law is affirmed by one party and
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denied by the other." Sub rule (2) states, "Material propositions are those propositions of
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law or fact which a plaintiff must allege in order to show a right to sue or a defendant
must allege in order to constitute his defence," Sub rule (3) States "Each material
proposition affirmed by one party denied by other shall form subject of distinct issues."

Hearing and Judgment and Orders : Hearing Of Suits And Examination Of

Witnesses (Order 18)

The plaintiff is entitled to have first right to begin unless the defendant admits the facts
alleged by the plaintiff and contends that either in point of law or on some additional facts
alleged by the defendant the plaintiff is not entitled to any part of relief. In such case
defendant has the right to begin. The plaintiff has to state his case in front of the judge.
The plaintiff has to submit the evidence that was earlier marked. If any evidence was not
marked earlier then it will not be considered by the court. Then the plaintiff will be cross-
examined by the defendant's Advocate. The witnesses from plaintiff's side also have to
appear in the court, who are also cross-examined by the defendant's lawyer. The
defendant also presents his side of the story supported by his witnesses and evidence from
his side. The evidence needs to be be marked earlier by the court, otherwise it will not be
considered by the court. The plaintiff's lawyer will then cross-examine the defendant.
Judgment (Order 20) :-Judgment means the statement given by the judge on ground of
which a decree is passed. The court after the case has been heard shall pronounce
judgment in open court either within one month of completion of arguments or as soon
thereafter as may be practicable, and when the judgment is to be pronounced judge shall
fix a day in advance for that purpose. Examination of parties by court.

ORDER X EXAMINATION OF PARTIES BY THE COURT - RULE 1, 2, 3, 4 OF

CODE OF CIVIL PROCEDURE 1908

Rule 1 Order X of Code of Civil Procedure 1908 "Ascertainment whether allegations in

pleadings are admitted or denied" At the first hearing of the suit the Court shall ascertain
from each party or his pleader whether he admits or denies such allegations of fact as are
made in the plaint or written statement (if any) of the opposite party, and as are not
expressly or by necessary implication admitted or denied by the party against whom they
are made. The Court shall record such admissions and denials. Rule 2 Order X of Code of
Civil Procedure 1908 "Oral examination of party, or companion of party"
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(1) At suit the appearing first hearing of the suit, the Court- (a) shall, with a view to
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elucidating matters in controversy in the suit examine orally such of the parties to the in
person or present in Court, as it deems fit; and (b) may orally examine any person, able to
answer any material question relating to the suit, by whom any party appearing in person
or present in Court or his pleader is accompanied.

(2) At any subsequent hearing, the Court may orally examine any party appearing in
person or present in Court, or any person, able to answer any material question relating to
the suit, by whom such party or his pleader is accompanied.

(3) The Court may, if it thinks fit, put in the course of an examination under this rule
questions suggested by either party. Rule 3 Order X of Code of Civil Procedure 1908
"Substance of examination to be written" The substance of the examination shall be
reduced to writing by the Judge, and shall form part of the record. Rule 4 Order X of
Code of Civil Procedure 1908 "Consequence of refusal or inability of pleader to answer"

(1) Where the pleader of any party who appears by a pleader or any such person
accompanying a pleader as is referred to in rule 2, refuses or is unable to answer any
material question relating to the suit which the Court is of opinion that the party whom he
represents ought to answer, and is likely to be able to answer if interrogated in person, the
Court may postpone the hearing of the suit to a future day and direct that such party shall
appear in person on such day.

(2) If such party fails without lawful excuse to appear in person on the day so appointed,
the Court may pronounce judgment against him, or make such order in relation to the suit
as it thinks fit. Discovery and inspection Discovery and Inspection (Order 11) :- The
purpose of discovery and inspection of document and facts is to enable the parties to
ascertain the facts to be proved. With the leave of the court the plaintiff or defendant may
deliver interrogatories in writing for examination of opposite parties which are required to
be answered and which are related to the matter.

ADMISSIONS – ORDER 12

Admission basically means the voluntary acknowledgement made by the person against
his own interest. It can be an important piece of evidence against a person. It can either be
in oral, electronic form or documentary in nature. Judgment on admissions As per Rule 6
Order 12, Judgment on admissions can be read as- Where admissions are made during:
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1. Facts or pleading or otherwise; 2. May be in oral or in writing; The court at any stage
of the suit- 1. Either on the application or of its own motion; 2. Without waiting for the
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 determination of questions by parties; can give out judgment as it may think fit, with
regard to such admissions

PRODUCTION, IMPOUNDING AND RETURN OF DOCUMENTS ORDER XIII

Evidence of every description in their possession or power, on which they intend to rely, and
which has not already been filed in Court, and all documents which the Court has ordered to
be produced. The Court shall receive the documents so produced: Provided that they are
accompanied by an accurate list thereof prepared in such form as the High Court directs.
Effect of non-production of documents. (1) No documentary evidence in the possession or
power of any party which should have been, but has not been produced in accordance with
the requirements of rule 1 shall be received at any subsequent stage of the proceedings unless
good cause is shown to the satisfaction of the Court for the non-production thereof; and the
Court receiving any such evidence shall record the reasons for so doing. (2) (a) Nothing in
sub-rule (1) shall apply to documents,- produced for the cross-examination of the witness of
the other party, or (b) handed over to a witness merely to refresh his memory. 3. Rejection of
irrelevant or inadmissible documents. The Court may at any stage of the suit reject any
document which it considers irrelevant or otherwise inadmissible, recording the grounds of
such rejection. 4. Endorsements on documents admitted in evidence. the (1) Subject to the
provisions of the next following sub-rule, there shall be endorsed on every document which
has been admitted in evidence in the suit the following particulars, namely- (a) number (b) (c)
(d) a name date statement of and the on of which its person title it having and the
endorsement shall be signed or initialled by the Judge. of producing was been the produced,
so suit, document, and admitted, (2) Where a document so admitted is an entry in a book,
account or record, and a copy thereof has been substituted for the original under the next
following rule, the particulars aforesaid shall be endorsed on the copy and the endorsement
thereon shall be signed or initialled by the Judge. Endorsements on copies of admitted entries
in books, accounts and records. (1) Save in so far as is otherwise provided by the Bankers’
Books Evidence Act, 1891 ( 18 of 1891) where a document admitted in evidence in the suit is
an entry in a letter-book or a shop-book or a or other account in current use, the party on
whose behalf the book or account is produced may furnish a copy of the entry. (2) Where
such a document is an entry in a public record produced from a public office or by a public
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officer, or an entry in a book or account belonging to a person other than a party on whose
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behalf the book or account is produced, the Court may require a copy of the entry to be
furnished- (a) where the record, book or account is produced on behalf of a party, then by that
party, or (b) where the record, book or account is produced in obedience to an order of the
Court acting of its own motion, then by either or any party. (3) Where a copy of an entry is
furnished under the foregoing provisions of this rule, the Court shall, after accusing the copy
to be examined, compared and certified in manner mentioned in rule 17 of Order VII, mark
the entry and cause the book, account or record in which it occurs to be returned to the person
producing it. 6. Endorsements on documents rejected as inadmissible in evidence. Where a
document relied on as evidence by either party is considered by the Court to be inadmissible
in evidence, there shall be endorsed thereon the particulars mentioned in clauses (a), (b), and
(c) of rule 4, sub-rule (1), together with a statement of its having been rejected, and the
endorsement shall be signed or initialled by the Judge. 7. recording of admitted and return or
rejected documents. (1) Every document which has been admitted in evidence or a copy
thereof where a copy has been substituted for the original under rule 5, shall form part of the
record of the suit. (2) Documents not admitted in evidence shall not form part of the record
and shall be returned to the persons respectively producing them. List of witnesses, Summons
to witness, Expenses of witness, Witness to give evidence and production of documents.

SUMMONING AND ATTENDANCE OF WITNESSES- ORDER XVI

On or before such date as the Court may appoint, and not later than fifteen days after the date
on which the issues are settled, the parties shall present in Court a list of witnesses whom
they propose to call either to give evidence or to produce documents and obtain summonses
to such person for their attendance in Court. (2) A party desirous of obtaining any summons
for the attendance of any person shall file in Court an application stating therein the purpose
for which the witness is proposed to be summoned. (3) The Court may, for reasons to be
recorded, permit a party to call, whether by summoning through Court or otherwise, any
witness, other than those whose names appear in the list referred to in sub-rule (1), if such
part shows sufficient cause for the omission to mention the name of such witness in the said
list. . Production of witnesses without summons. party to the suit may, without applying for
summons under rule 1, bring any witness to give evidence or to produce documents.
Expenses of witnesses to be paid into Court on applying for summons. Time, place and
purpose of attendance to be specified in summons. Every summons for the attendance of a
person to give evidence or to produce a document shall specify the time and place at which
34

he is required to attend, and also whether his attendance is required for the purpose of giving
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evidence or to produce a document, or for both purposes; and any particular document, which
the person summoned is called on to produce, shall be described in the summons with
reasonable accuracy. Summons to produce document .Any person may be summoned to
produce a document, without being summoned to give evidence, and any person summoned
merely to produce a document shall be deemed to have complied with the summons if he
causes such document to be produced instead of attending personally to produce the same.
Any person present in Court may be required by the Court to give evidence or to produce any
document then and there in his possession or power. Summons given to party for service. The
Court may, on the application of any party for the issue of a summons for the attendance of
any person, permit such party to effect service of such summons on such person and shall, in
such a case, deliver the summons to such party for service.

UNIT V

Affidavit – judgement – decree – cost – compensatory cost – interest – commissions –

appointment of receiver – power – duty – removal – restitution – caveat – inherent powers –
abatement and withdrawal of suits.

INTEREST

Section 35 of the Code of Civil Procedure provides for the costs. The provision grants right to
the discretion of the court that it may grant order for paying the cost to the winning party for
the expenses incurred in maintaining the suit or to pay for the amount that the winning party
has incurred while drafting legal notices and contracts. Section 35A- Compensation in respect
of false or vexatious claims If any suit or other proceedings including an execution
proceeding but any party objects to the claim of defence on the ground that the claim or
defence or any part of it, as against the objector, false or vexatious to the knowledge of the
party by whom it has been put forward, and if thereafter, as against the objector, such claim
or defence is disallowed, abandoned or withdrawn in whole or in part, the Court may after
recording its reasons for holding such claims defence to be false or vexatious make an order
for the payment to the object or by the party by whom such claim or defence has been put
forward, of cost by way of compensation. Section 35- Costs for Causing Delay- This Section
was inserted via amendment act of 1976. This Section provides for the fines that are imposed
upon the defendant for causing delay. Inherent powers of a court The word “Inherent” is very
wide in itself. It means existing and inseparable from something, a permanent attribute or
35

quality, an essential element, something intrinsic, or essential, vested in or attached to a

person or office as a right of privilege.[i] Hence, inherent powers are such powers which are
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inalienable from courts and may be exercised by a court to do full and complete justice
between the parties before it. There are many sections in the CPC that provides for the same.
Section 148 Enlargement of time:- Where any period is fixed or granted by the Court for the
doing of any act prescribed or allowed by this Code, the Court may, in its discretion, from
time to time, enlarge such period *[not exceeding thirty days in total], even though the period
originally fixed or granted may have expired. Section 148-A:Right to lodge a caveat Section
151 Saving of inherent powers of the code:- Nothing in this code shall be deemed to limit or
otherwise affect the inherent powers of the court to make such orders as may be necessary for
the ends of the justice or to prevent abuse of the process of the court. Section 152
Amendment of judgments, decrees or orders:- Clerical or arithmetical mistakes in judgments,
decrees or orders or errors arising therein from any accidental slip or omission may at any
time be corrected by the Court either of its own motion or on the application of any of the
parties. Section 153 General powers to amend:- The Court may at any time and on such terms
as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a
suit, and all necessary amendments shall be made of the purpose of determining the real
question or issue raised by or depending on such proceeding. Section 153-A Power to amend
decree or order where appeal is summarily dismissed:- Where an Appellate Court dismisses
an appeal under rule 11 of Order XLI, the power of the Court to amend, under section 152,
the decree or order appealed against may be exercised by the Court which had passed the
decree or order in the first instance, notwithstanding that the dismissal of the appeal has the
effect of confirming the decree or order, as the case may be, passed by the Court of the first
instance.

UNIT VI-

Suits in particular cases – suit by/against government – suit by or against minor – suit by
indigent persons – appeal – interpleader suit – arrest and attachment before judgement –
temporary injunction.

SUITS BY INDIGENT PERSONS (ORDER XXXIII)

Introduction: The provision relating to suits by an indigent person is contained in Order

XXXIII, having rules which provide various provisions regarding the purpose, procedure,
examination of applicant, rejection of application etc. The general rule for the institution of a
36

suit is that a plaintiff suing in a Court of law is bound to pay Court-fees prescribed under the
Court Fees Act at the time of presentation of plaint. Order XXXIII is an exception to the
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above rule and exempts some (poor) persons from paying the Court fee at the time of
institution of the suit i.e. at the time of presentation of plaint and allows prosecuting his suit
in forma pauperis, subject to the fulfilment of the conditions laid down in this Order.
Meaning of Indigent Person: An indigent person is one who is not possessed of sufficient
means due bad personal economic condition. The word 'person' includes juristic person.
According to Explanation f Rule 1, Order XXXIII, An indigent person is a person, whoa. if
he is not possessed of sufficient means (other than property exempt from attachment in
execution of a decree and the subject matter of the suit) to enable him to pay the fee
prescribed by law for the plaint in such suit, or b. where no such fee is prescribed, if he is not
entitled to property worth one thousand rupees other than the property exempt from
attachment in execution of a decree, and the Subject matter of the suit. Explanations II and III
read as under - Explanation-II: Any property, which is acquired by a person after the
presentation of his application for permission to sue as an indigent person, and before the
decision of the application, shall be considered in considering the question whether or not the
applicant is an indigent person. Explanation III: Where the plaintiff sues in a representative
capacity, the question whether he is an indigent person shall be determined with reference to
the means possessed by him in such capacity. Procedure to sue as Indigent Person: Before an
indigent person can institute a suit, permission of Court to sue as an indigent person is
required. As per rule 3, the application for permission to sue as an indigent person, shall be
presented to the Court by the applicant in person, unless he is exempted from appearing in
court, in which case the application may be presented by an authorized agent who can answer
all material questions relating to the application, and who may be examined in the same
manner as the party represented by him might have been examined had such party attended in
person: PROVIDED that, where there are more plaintiffs than one, it shall be sufficient if the
application is presented by one of the plaintiffs.

Contents of Application: Every such application shall contain the following particulars:- a.
the particulars required in regard to plaints in suits; b. a schedule of any moveable or
immoveable property belonging to the applicant, with the estimated value thereof; and c. it
shall be signed and verified as provided in Order VI rules 14 and 15. The suit commences
from the moment an application to sue in forma pauperis is presented According to Rule 1-A,
an inquiry to ascertain whether or not a person is an indigent person shall be made. Rule 1-
A : Every inquiry into the question whether or not a person is an indigent person shall be
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made, in the first instance, by the chief ministerial officer of the court, unless the court
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otherwise directs, and the court may adopt the report of such officer as its own finding or may
itself make an inquiry into the question.

Examination: (Rule 4) of Applicant and Rejection of Application: 1. Where the application is

in proper form and duly presented, the court may if it thinks fit, examine the applicant, or his
agent when the applicant is allowed to appear by agent, regarding the merits of the claim and
the property of the applicant. 2. If presented by agent, court may order applicant to be
examined by commission - Where the application is presented by an agent, the court may, if
it thinks fit, order that the applicant be examined by a commission in the manner in which the
examination of an absent witness may be taken.

Rejection of Application: Rule 5: The court shall reject an application for permission to sue
as an indigent person – 1. Where it is not framed and presented in the manner prescribed by
rules 2 and 3, or 2. Where the applicant is not an indigent person, or 3. Where he has, within
two months next before the presentation of the application, disposed of any property
fraudulently or in order to be able to apply for permission to sue as an indigent person:
PROVIDED that no application shall be rejected if, even after the value of the property
disposed of by the applicant is taken into account, the applicant would be entitled to sue as an
indigent person, or 4. Where his allegations do not show a cause of action, or 5. Where he has
entered into any agreement with reference to the subject matter of the proposed suit under
which any other person has obtained an interest in such subject matter, or 6. Where the
allegations made by the applicant in the application show that the suit would be barred by any
law for the time being in force, or 7. Where any other person has entered into an agreement
with him to finance the litigation.

Fixing of Date and Notice to the opposite Party and the Government Pleader:- being of
Where there is ground as stated in rule 5, to reject the application the Court shall fix a day (of
which at least ten days' ear notice shall be given to the opposite party and the government
pleader) for receiving such evidence as the applicant may adduce in proof of his indigency,
and for hearing any evidence which may be adduced in disproof thereof. Procedure at
Hearing : On the date fixed, the Court shall examine the witness (if any) produced by either
38

party to the matters specified in clause (b), clause (c) and clause (e) of rule 5, and may
examine the applicant or his agent to any of the matters specified in Rule 5 the Court after
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hearing the argument hall either allow or refuse to allow the applicant to sue as an indigent
person. Procedure if Application Admitted : Where the application is granted, it shall be
deemed the plaint in the suit and the suit shall proceed in all other respects as a suit instituted
in the ordinary manner, except at the of any petition, appointment of a pleader or other
proceedings connected with the suit. Withdrawal of Permission : The Court may, on the
application of the defendant, or of the government pleader and after giving seven days’ notice
in writing to the plaintiff, withdraw the permission granted to the plaintiff to sue as an
indigent person on the following conditions: 1. if he is guilty of vexatious or improper
conduct in the course of the suit; 2. if it appears that his means are such that he ought not to
continue to sue as an indigent person; or 3. if he has entered into any agreement with
reference to the subject matter of the suit under which any other person has obtained an
interest in such subject matter.

REALIZATION OF COURT FEES: (RULE 14)

Where Indigent person succeeds: (Rule 10) Where the plaintiff succeeds in the suit, the court
shall calculate the amount of court fees which would have been paid by the plaintiff if he had
not been permitted to sue as an indigent person; such amount shall be recoverable by the
State Government from any party ordered by the decree to pay the same, and shall be a first
charge on the subject matter of the suit. b. Where Indigent person fails: (Rule 11) Where the
plaintiff fails in the suit or the permission granted to him to sue as an indigent person has
been withdrawn, or where the suit is withdrawn or dismissed,- I. because the summons for the
defendant to appear and answer has not been served upon him in consequence of the failure
of the plaintiff to pay the court fee or postal charges (if any) chargeable for such service or to
present copies of the plaint or concise statement, or II. because the plaintiff does not appear
when the suit is called on for hearing, the court shall order the plaintiff, or any person added
as a co-plaintiff to the suit, to pay the court fees which would have been paid by the plaintiff
if he had not been permitted to sue as an indigent person. c. Where an indigent person's suit
abates :(Rule 11.A) Where the suit abates by reason of the death of the plaintiff or of any
person added as a co-plaintiff, the court shall order that the amount of court fees which would
have been paid by the plaintiff if he had not been permitted to sue as an indigent person shall
be recoverable by the State government from the estate of the deceased plaintiff. According
to rule 15, where the application to sue as an indigent person is refused, it shall be a bar to
39

any subsequent application of the like nature by him in respect of the same right to sue; but
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the applicant shall be at liberty to institute a suit in the ordinary manner in respect of such
right, provided he pays the costs incurred by the Government Pleader and the opposite party
in opposing in application. When an application is either rejected under rule 5 or refused
under rule 7, the Court will grant time to the applicant to pay the requisite Court fee within
the specified time or within time extended by the Court from time to time, and upon payment
of such Court fee and on payment of the costs referred to in rule 15 within that time, the suit
shall be deemed to have been instituted on the date on which the application for permission to
sue as an indigent person was presented. The costs of an application for permission to sue as
an indigent person and of an inquiry into indigence shall be costs in the suit. Defence by an
indigent person: Rule 17: Any defendant, who desires to plead a set off or counter claim, may
be allowed to set up such claim as an indigent person, and the rules contained in this Order
shall, so far as may be, apply to him as if he were a plaintiff and his written statement were a
plaint. Subject to the provisions of this order, the Central or State Government may make
such supplementary provisions for free legal services to those Who have been permitted to
sue as indigent persons,60 and where an indigent person is not represented by a pleader, the
Court may, if the circumstances of the case so require, assign a pleader to him. Indigent
Person : A person unable to pay Court fees on memorandum of appeal may apply to allow
him to appeal as an indigent person. The necessary inquiry as prescribed in Ord.er XXXIII
will be made before granting or refusing the prayer. But where the applicant was allowed to
sue as an indigent person in the trial Court, no fresh inquiry will be necessary if he files an
affidavit that he continues to be an indigent person.

SUITS IN PARTICULAR CASES

Suits by or Against the Government or the Public Officers

The authority to be named as a plaintiff or defendant, in any suit by or against Government

shall be. 1. the Union of India: Where the suit is by or against the Central Government, or 2.
the State: Where the suit is by or against the State Government. Requirement of Notice: No
suit shall be instituted, except as provided in sub-section (2) of section 80 against the
Government or against a public officer in respect of any act purporting to be done by such
public officer in his official capacity unless a Notice in writing has been issued and until the
expiration of two months’ Notice to whom: next after notice. a. Against Government: The
Notice issued under section 80(1) shall be delivered to, or left at the office of – 1) In the case
of a suit against Central Government - i) a Secretary to that Government : when it does not
40

relate to a railway, and ii) the General Manager of Railway : when it relates to a railway. 2)
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In the case of a suit against the State Government of Jammu and Kashmir - i) a Chief
Secretary to that Government; or ii) any other person authorized in this behalf by the State
Government. 3) In the case of a suit against any other State Government - i) a Secretary to
that Government; or ii) the collector of the district. b) Against Public Officer : In the case of a
suit against Public Officer notice shall be delivered to him or left at his office. Contents of
Notice: The notice shall contain the following particulars - i) the name, description and place
of residence of the plaintiff; ii) the cause of action; and iii) the relief, which the plaintiff
claims. Exemption from Notice : A suit may, with the leave of the Court, be instituted to
obtain an urgent or immediate relief without serving any notice as required under section
80(1). But, in such suit, the Court shall not grant any relief, whether interim or otherwise;
except after giving to the Government or Public Officer, as the case may be, a reasonable
opportunity of showing cause in respect of the relief prayed in the suit. It is also provided that
the Court shall return the plaint for presentation to it after complying with the requirements of
section 80(1), if after hearing the parties, the Court is satisfied that no urgent or immediate
relief need to be granted.

No Dismissal of suit: Any suit instituted against the Government or such public officer shall
not be dismissed, by reason of any error or defect in the notice, if such notice contains-

I. The name, description and residence of the plaintiff, so as to enable the

Government or such public officer to identify the person serving the notice;
II. Notice has been delivered or left at the offices of the appropriate authority
specified U/s 80(1); and
III. The cause of action and the relief claimed have been substantially indicated.
Procedure in Suit: Signature and Verification of Plaint Or Written Statement
Agent and Authorized Agent: The Court shall allow a reasonable time in fixing a
day for the Government to answer the plaint, for the purpose of necessary
communication with the Government through proper channel and for the issue of
instructions to the Government pleader to appear and answer on behalf of the
Government. The time so allowed may, at the discretion of the Court, be extended
but the time so extended shall not exceed two months in the aggregate. Where in
any case the Government Pleader is not accompanied by any person on the part of
the Government, who may be able to answer any material. questions relating to
41

the suit, the Court may, direct the attendance of such a person. Duty of Court: It
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shall be the duty of the Court to make every endeavour, if possible to do so

consistently with the nature and circumstances of the case, to assists the parties in
 arriving at a settlement in respect of the subject-matter of the suit and in every
such suit or proceeding, at any stage, if it appears to the Court that there is a
reasonable opportunity of settlement between the parties, the Court may adjourn
the proceeding for such period, as it thinks fit, to enable attempts to be made to
effect such a settlement The power to adjourn proceeding under sub-rule (2) shall
be in addition to any other power of the Court to adjourn proceedings. Procedure
in Suit against Public Officer: The defendant (public officer) on receiving the
summons may apply to the Court to grant the extension of time fixed in the
summons, to enable to him to refer to the Government, and to receive orders
thereon through the proper channeF6 and the Court shall, on such application
extend the time for so long as it appears to it to be necessary. The Government
shall be joined as a party to the suit, where the suit is instituted against the public
officer for damages or for any other relief in respect of any act alleged to have
been done by him in his official capacity. Where the government undertakes the
defence of a suit against a public officer, the government pleader, upon being
furnished with authority to appear and answer the plaint, shall apply to the Court,
and upon such application the Court shall cause a note of his authority to be
entered in the register of civil suits. Where no application under sub-rule (1) is
made by the government pleader on or before the day fixed in the notice for the
defendant to appear and answer, the case shall proceed as in a suit between private
parties. No need of security from government or a public officer in certain cases:
No such security as is mentioned in rules 5 and 6 of order XLI shall be required
from the government or, where the government has undertaken the defence of the
suit, from any public officer sued in respect of an act alleged to be done by him in
his official capacity. Exemption from Arrest, Personal Appearance and
Attachment of Properly : According to section 81 of the Code, if the suit is against
a public officer in respect of any act purporting to be done by him in his official
capacity – a. the defendant shall not be liable to arrest nor his property to
attachment otherwise than in execution of a decree, and b. where the court is
satisfied that the defendant cannot absent himself from his duty without detriment
to the public service, it shall exempt him from appearing in person.
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Definition of 'Government' and 'Government Pleader': Rule 8-8 of Order XXVII provides that
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in Order XXVII 'Government' and 'Government Pleader' mean respectively" i. in relation to

any suit by or against the Central Government or against a public officer in the service of that
Government- the Central Government and such pleader as that Government may appoint . ii.
in relation to any suit by or against a State Government or against a public officer in the
service of a State- the State Government and such Government pleader as defined in Section
2(7), or such other pleader as the State Government may ,appoint.

INTER PLEADER SUIT (SECTION 88 AND ORDER XXXV)

Meaning: An interpleader suit is a suit in which the real dispute is not between the plaintiff
and the defendant but between the defendants only and the plaintiff is not really interested in.
the subject matter of the suit. Object: The primary object of instituting an interpleader suit is
to get claim of rival defendants adjudicated Principle: According to Section- "Where two or
more persons claim adversely to one another the same debts, sum of money or other property,
moveable or immoveable, from another person, who claims no interest therein other than for
charges and costs and who is ready to pay or deliver it to the rightful claimant, such other
person may institute a suit of interpleader against all the claimants for the purpose of
obtaining a decision as to the person to whom the payment or delivery shall be made and of
obtaining indemnity for himself: Provided that where any suit is pending in which the -rights
of the parties can properly be decided, no such suit of interpleader shall be instituted.
Conditions for Application: Before the institution of an interpleader suit, the following
conditions must be satisfied: a. Existence of some Debt, Money or Moveable or Immoveable
Property: there must be some debt, sum of money or other moveable or immoveable property
in dispute; b. Adverse Claim by two or more persons: two or more persons must be claiming
the above debt, money or property, adversely to one another; c. The person from whom the
debt, money or property is being claimed should not be interested in it: the person from
whom such debt, money or property is claimed, must not be claiming any interest therein
other than the charges and costs: d. The above person must be ready to deliver it: The above
person must be ready to pay or deliver it to the rightful claimant; and e. No Pendency of Suit:
there must be no suit pending in which the rights of the rival claimants can be properly
decided. Who may An Agent or Tenant: not institute an interpleader suit? An agent cannot
sue his principal or a tenant his landlord for the purpose of compelling them to interplead
with persons claiming through such principals or landlords, because ordinarily, an agent
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cannot dispute the title of his principal and a tenant cannot dispute the title of his landlord
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during the subsistence of tenancy.

Illustrations: A deposited a box of jewels with 8 as his agent: a. C alleges that the jewels were
wrongfully obtained from him by A, and claims them from B. 8 cannot institute an inter
pleader suit against A and C. (C claims adversely to A, and therefore, no inter pleader suit
can file.) b. He then writes to C for the purpose of making the jewels a security for a debt due
from himself to C. A afterwards alleges that C's debt is satisfied, and C alleges the contrary.
80th claim the jewels from B. B may institute an interpleader suit against A and C. (C claims
through A and , therefore, it can file.)

PROCEDURE IN INTER PLEADER SUIT:

Order XXXV provides the procedure for the institution of an interpleader suit. Plaint in
Interpleader Suit : In every interpleader suit the plaint in addition to other statements
necessary for plaint, state – a. that the plaintiff claims no interest in the subject matter in
dispute other than the charges or costs; b. the claims made by the defendants c. there is no
collusion between the plaintiff and any of the defendants. severally; and Payment of thing
claimed into Court: The Court may order the plaintiff to place the thing claimed in the
custody of the Court when the thing is capable of being paid into Court or placed in the
custody of Court and provide his costs by giving him a charge on the thing claimed.
Procedure where defendant is suing plaintiff (Stay of Proceedings): Where any of the
defendants in an interpleader suit is actually suing the plaintiff in respect of the subject matter
of such suit, the Court in which the suit against the plaintiff is pending shall, on being
informed by the Court in which the interpleader suit has been instituted, stay the proceeding
as against him; and his cost in the suit so stayed may be provided for in such suit; but if, and
in so far as, they are not provided for in that suit, they may be added to his costs incurred in
the interpleader suit.

Procedure of First Hearing: 1. At the first hearing, the Court may- a. Declare that the plaintiff
is discharged from ale liabilities to the defendants in respect of the thing claimed, award him
his costs and dismiss him from the suit; or b. if it thinks that justice or convenience so
require, retains all parties until the final disposal of the suit. 2. Where the Court finds that the
admission of the parties or other evidence enable the Court to do so, it may adjudicate the
title to the thing claimed. 3. Where the admissions of the parties do not enable the Court so to
adjudicate the Court may direct - a) that an issue or issues between the parties be framed and
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tried, and b) that any claimant be made a plaintiff in lieu of or in addition to the original
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plaintiff, and shall proceed to try the suit in the ordinary manner.
TEMPORARY INJUNCTION (ORDER XXXIX RULES 1 TO 5)

Meaning of Injunction: An injunction is an order by the Court to a party to the effect that he
shall do or refrain from doing a particular act. “A judicial process, by which one, who has
invaded or is threatening to invade the rights (legal or suitable) of another, is restrained from
continuing or commencing such wrongful act." Characteristic of Injunction: An injunction
has three characteristics - 1. It is a judicial process, 2. The object thereby is restraint or
prevention, and 3. The thing restrained or prevented is a wrongful act. Classification of
Injunction: The law relating to injunction is laid down in the Specific Relief Act, 1963
( Section 36 to 42 ) An injunction may be classified according to the relief granted or
according to its nature or according to the operation of Time As regards the "time" of their
operation the injunction may be divided into two categories- i) Perpetual or (Permanent), and
ii) Interlocutory Or (Temporary)

i. Perpetual or (Permanent): A perpetual injunction restrains a party for ever from

doing the specific act and can be granted only on merits at the conclusion of the
trial after hearing both the parties to the suits. Section 37(2) of the Specific-Relief
Act, 1963
ii. Interlocutory or (Temporary) : Definition: A temporary injunction or interim
injunction, restrains a party temporarily from doing the specified act and can be
granted only until the disposal of the suit or until the _ further orders of the
Courts. It is regulated by Order 39 rule 1 to 5 of the C.P.C. and may be granted at
any stage of the suit. Section 37(1) of the Specific Relief Act, 1963 Object: The
primary object of granting temporary injunction is to maintain and preserve status
quo at the time of institution of the proceedings and to prevent any change in it
until the final determination of the suit. Grounds: [Order 39 Rule 1, 2 and also
Sec. 94 (c)]

A temporary injunction may be granted by the Court under the following cases: 1. Where in
any suit it is proved by affidavit or otherwise: a. that any property in dispute in a suit ,is in
danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in
execution of a decree; or Rule 1 (a) b. the defendant threatens, or intends to remove or
dispose of his property with a view to defrauding his creditors, or Rule 1 (b) c. the defendant
45

threatens to disposes the plaintiff in relation to any property in dispute in the suit, or Rule 1
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(c) The Court may by order grant a temporary injunction to restrain such act, or make such
other order for the purposes of staying and preventing the wasting, damaging, alienation, sale,
removal or dispossession of the property or dispossession of the plaintiff, or otherwise
causing injury to the plaintiff in relation to any property in dispute in the suit as the Court
thinks fit, until the disposal of the suit or until further orders. 2. Where the defendant is about
to commit a breach of contract, or other injury of any kind, or Rule 2(1) 3.

Where the Court is of the opinion that the interest of justice so requires: Section 94(c)
Principles: The power to grant a temporary injunction is in the discretion of the Court, but
this discretion, should be exercised reasonably, judiciously and on sound legal principles.
Generally, before granting the injunction, the Court must be satisfied about the following
conditions: i) ii) iii)

Balance of convenience Prima Irreparable facie Injury; case; and i) Prima facie case: The
applicant must make out a prima facie case in support of the right claimed by him. The Court
must be satisfied that there is a bona fide dispute raised by the applicant and on the facts
before the Court there is a probability of the applicant being entitled to the relief claimed by
him. In deciding prima facie case; the Court is to be guided by the Plaintiffs case as revealed
in the plaint, affidavits or other materials produced by him... and "while determining whether
a prima facie case had been made out, the relevant consideration is, whether' on the evidence
led, it was possible to arrive at the conclusion in question and not whether that was the only
conclusion which could be arrived at that evidence."? himself ii) Irreparable Injury: The
applicant must further satisfy the Court that he will suffer irreparable injury if the injunction
as prayed is not granted, and there is no other remedy open to him by which he can protect
from the consequences of apprehended injury.

The expression "irreparable injury" means that the injury must be material one, Le. which
cannot be adequately compensated by damages. iii) Balance of Convenience: The balance of
convenience must be in favour of the applicant. In other words, the Court must be satisfied
that the compensation, mischief or inconvenience which is likely to be caused to the applicant
by withholding the injunction will be greater than that which is likely to be caused to the
opposite party by granting it.

Discretionary Remedy: Since grant of injunction is discretionary and an equitable relief, even
46

if all the conditions are satisfied, the Court may refuse to grant it for some other reasons e.g.,
on the ground of delay, latches or acquiescence or where the applicant has not come with
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clean hands or has suppressed material facts, or where monetary compensation is adequate
relief. Notice: The Court shall before grant an injunction, give notice to the opposite party,
except where it appears that the object of granting the injunction would be defeated by the
delay. According to proviso to Rule 3, when an ex parte injunction is proposed to be given
the Court has to record the reasons for coming to the conclusion that the object of granting
the injunction would be defeated by the delay and the Court shall order the applicant - a. to
deliver or to send by registered post a copy of the application for injunction together with - i)
copy ii) a of affidavit copy filed of iii) copies of documents on which the applicant relies, and
in support the of Plaint, application, and b) to file, on the day on which injunction is granted
or on the day immediately following that day, an affidavit stating that the copies aforesaid
have been so delivered or sent immediately to the opposite party. In case of ex-parte
injunction, the Court shall make an endeavour to finally dispose of the application within 30
days from the date on which the ex-parte injunction was granted. Where the Court finds it
difficult to dispose of the application within the period of 30 days, the reasons are required to
be recorded. (Rule 3-A) An order of injunction may be discharged, varied or set aside by the
Court on application being made by any party dissatisfied with such order;9 or where such
discharged, variation or set aside has been necessitated by the change in the circumstances, or
where the Court is satisfied that such order has caused undue hardship to the other side.
Provided that if an application for temporary injunction or in any affidavit supporting such
application, a party has knowingly made a false or misleading statement in relation to a
material particular and the injunction was granted without "giving" nonce to the opposite
party, the Court shall vacate the injunction unless, for reasons to be recorded, it considers that
it is not necessary to do in the interest of justice.

UNIT VII

General principles of execution – executing court – powers of – modes of – precepts, rateable

distribution – garnishee order – arrest – detention – release – exemption – attachment –
exemptions – sale – setting aside – proclamation.

1. Execution in the popular sense of the term means enforcement of the decree or order of a
court. 2. Execution means enforcement or giving effect to decrees or orders through the
process of court. 3. It is the medium through which decree-holder compels the judgment-
debtor to carry out the mandate of the decree or order as the case may be. 4. It enables the
47

decree-holder to recover the fruits of the judgment. 5. Main rules of procedure are to be found
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in Part II of the Code (Sections 36-74) and minor rules are to be found in Order 21 of the
Code. Case 1. - The Supreme Court of India in Ghanshyam Das Gupta Anant Kumar Singh,
AIR 1991 SC 2251 opined that "So far as the question of executability of a decree is
concerned, the Civil Procedure Code contains elaborate and exhaustive provisions for dealing
with it in all its aspects. The numerous rules of Order 21 of the Code taken care of different
situations providing effective remedies not only to judgment-debtors and decree-holder but
also to claimant objectors as the case may be. In an exceptional case, where provisions are
rendered incapable of giving relief to an aggrieved party in adequate measure and appropriate
time, the answer is a regular suit in the Civil Court." To take a simple example, where a court
passes a decree in favour of 'A' for the payment of Rs. 10,000/- and against 'B', there 'A' is
decree-holder and 'B', the judgment-debtor and the sum of Rs. 10,000/- is judgment debt or
decretal debt. In view of this decree for Rs. 10,000/- in favour of 'A', 'B' should pay this sum
to him. But despite this decree if 'B' refuses to pay the amount to W. 'A' will initiate steps to
get the payment of Rs. 10,000/- through the medium of court or through the process of court.
In other words, 'A' will compel 'B' through the process of court to make payment of Rs.
10,000/-. So, the entire procedure (through the process of court) with the help of which 'A'
will realise the amount of Rs. 10,000/- from 'B' is known as execution.

MODES OF EXECUTION

Proceedings of execution are generally carried out in following ways Section 51: i. Execution
against the person of the judgment debtor Execution against the person of the judgment-
debtor implies arrest and detention of the judgment-debtor in civil prison. By detaining the
judgment-debtor in civil prison pressure will be brought about on him to comply with the
mandate of the decree or order. Section 51(c) ii. Execution against the property of the
judgment debtor *Execution against the property of the judgment-debtor consists in attaching
and selling his property and paying out of the sole proceeds to decree-holder his decretal
debt. Thus, there are three stages in execution against property: (i) Attachment of property,
(ii) Sale of the attached property, and (iii) Payment of decretal debt to decree-holder out of
sale proceeds that is distribution of assets. Section 51(e) *When the decree is for any specific
movable property, it may be executed by seizure and delivery of the property; Section 51a.-
iii.

Appointment of Receiver. iv. In any other manner depending on the nature of relief. [Section
48

51(e)] Which Decree may be executed? 1. It is the decree of the court of first instance (if no
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appeal has been preferred against it) that will be executed. However, if the appeal has been
preferred against the decree of the court of first instance, then the decree of the court of the
last instance will be executed, because the decree of the court of first instance is merged into
the decree of the Superior Court. 2. In V.N. Shreedharan v. Bhaskaran, AIR 1986 Ker 49, a
compromise decree like any other decree may be executed and it is not necessary that the
compromise decree should state that in the event of non-satisfaction of the decree or non-
fulfilment of any condition therein, execution proceedings may be initiated.

Who may execute a Decree? i. The decree-holder is the proper person who may apply for
execution of a decree. ii. However, if the decree is transferred, the transferee may apply for
execution. Order 21, Rule 16. iii. Where a decree has been passed jointly in favour of more
persons than one, any one or more of such persons may, unless the decree imposes arty
condition contrary, may apply for execution. Order 21, Rule 15. to the iv. Lastly, where the
decree holder is dead, his legal representative may apply for execution.

Section 146 Against whom Decree may be executed? i. In case the judgment-debtor is alive
execution would lie against him. ii. If he is dead execution would lie against his legal
representative. However, if the decree is sought to be executed against legal representative it
may not be executed against his person. It can be executed only against his property and that
took to the extent of the property of the deceased which has come to his hands and has not
been duly disposed of. Section 50 of the Code An eviction order was passed against tenant
and his one of five sons under Section 7 of Orissa House Rent Control Act. Execution
proceedings were initiated against the tenant and his one son who has been a co-judgment-
debtor also. Tenant died during execution proceedings. Maintenance of execution
proceedings challenged on the ground that other legal representatives were not brought on
record. In Radheysham Modi v. Jadunath Mohapatra, AIR 1991 Orissa 88. that since one of
five sons of the deceased tenant was already on record, other sons need not be brought on
record for he represented all the brothers who would be similarly situated.

NOTICE BEFORE EXECUTION

Normally no notice is required to be issued to the party against whom execution is applied
for. But notice is required in the following cases: i. where an application for execution is
made more than two years after the date of the decree or more than two years after the date of
49

the last order made on any previous application for execution; Order 21, Rule 22 (1) (a). In
cases where an application for execution is made more than two years after the date of the
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decree no process in execution can issue unless a notice to show cause is served on the
judgment debtor or the service of such notice is dispensed with in accordance with law. ii.

Where an application is made against a legal representative of a party to the decree; Order 21,
Rule 22 (1) (b). iii. Where an application is made for execution of a decree filed under the
provisions of Section 44 A; that is a decree passed by a Superior Court of any reciprocating
territory; Order 21, Rule 22 (1) (b). iv. Where an application is made against the assignee or
receiver in insolvency in case the party to the decree (judgment-debtor) has been adjudged to
be an insolvent; Order 21, Rule 22 (1) (c). v. where the decree is for the payment of money
and the decree is sought to be executed against the person of the judgment-debtor. But issuing
of notice here is discretionary; Order 21, Rule 37 or vi. While an application is by the
transferee of the decree-holder. Order 21, Rule 16. Application for execution See provisions
of Order 21, Rules 10, 11 (1), 11 (2), 11-A, 12, 13, 14, 1 5 & 16 for an application for
execution. 37.

Definition of Court which passed a decree.—The expression "Court which passed a decree",
or words to that effect, shall, in relation to the execution of decrees, unless there is anything
repugnant in the subject or context, be deemed to include,- (a) Where the decree to be
executed has been passed in the exercise of appellate jurisdiction, the Court of first instance,
and (b) Where the Court of first instance has ceased to exist or to have jurisdiction to execute
it, the Court which, if the suit wherein the decree was passed was instituted at the time of
making the application for the execution of the decree, would have jurisdiction to try such
suit.

Explanation.—The Court of first instance does not cease to have jurisdiction to execute a
decree merely on the ground that after the institution of the suit wherein the decree was
passed or after the passing of the decree, any area has been transferred from the jurisdiction
of that Court to the jurisdiction of any other Court ; but in every such case, such they Court
shall also have jurisdiction to execute the decree, if at the me of making the application for
execution of the decree it would have jurisdiction to try the said suit.

COURT BY WHICH DECREE MAY BE EXECUTED

38. Court by which decree may be executed.—A decree may be executed either by the court
50

which passed it, or by the Court to which it is sent for execution.

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39. Transfer of Decree- (1) the Court which passed decree may, on the application of a decree
holder, send it for execution to anther Court of competent jurisdiction- (a) if the person
against whom the decree is passed actually and voluntarily resides and carried on business, or
personally works for gain, within the local limits of the jurisdiction of the other Court, or (b)
if such person has not property within the local limits of the jurisdiction of the Court which
passed the Decree sufficient to satisfy such decree and has property within the local limits of
the jurisdiction of such other Court, or (c) if the decree directs the sale or delivery of
immovable property situate outside the local limits of jurisdiction of the Court which passed
it, or (d) if the Court which passed the decree considers for any other reason, which shall
record in writing, that the decree should be executed by such other Court. (2) The Court
which passed the decree may of its own motion send it for execution to any subordinate Court
of competent jurisdiction. (3) for the purpose of this section, a Court shall be deemed to be a
Court of competent jurisdiction if, at the time of making the application for transfer of decree
to it, such Court would have jurisdiction to try the suit in which such decree was passed. (4)
Nothing in this section shall be deemed to authorize the Court which passed a Decree to
execute such decree against any person or property outside the limits of its jurisdiction. 40.
Transfer of decree to Court in another State- where a decree sent for execution in another
State, it shall be sent to such court and executed in such manner as may be prescribe by rules
in force in that State. 41. Result of execution proceedings to be certified.- the Court to which
a decree is sent for execution shall certified to the Court which passed it the fact of such
execution, or where the former court fails to execute the same the circumstances attending
such failure. 42. Powers of Court in executing transferred decree.[(1)] The Court executing a
decree sent to it shall have the same powers in executing such decree as if it had been passed
by itself. All persons disobeying or obstructing the execution of the decree shall be
punishable by such Court in the same manner as if it had passed the decree. And its order in
executing such decree shall be subject to the same rules in respect of appeal as if the decree
had been passed by itself. 2 [(2) Without prejudice to the generality of the provisions of sub-
section (1) the powers of the Court under that sub-section shall include the following powers
of the Court passed the decree, namely:- (a) power to send the decree for execution to another
Court under section 39; (b) power to execute the decree against the legal representative of the
deceased judgment debtor under section 50; (c) power to order attachment of a decree. (3) A
51

Court passing an order in exercise of the powers specified in sub-section (2) shall send a copy
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thereof to the Court which passed the decree. (4) Nothing in this section shall be deemed to
confer on the Courts to which a decree is sent for execution any of the following powers,
namely- (a) power to order execution at the instance of the transferee of the decree; (b) in the
case of a decree passed against a firm, power to grant leave to execute such decree against
any person other than such a person as is referred to in clause (b), or clause (c), of sub-rule
(1) of rule 50 of Order XXI.] 43. Execution of decrees passed by Civil Courts in places to
which this Code does not extend.-Any decree passed by any Civil Court established in any
part of India to which the provisions of this Code do not extend, or by any Court established
or continued by the authority of the Central Government outside India, may, if it cannot be
executed within the jurisdiction of the Court by which it was passed, be executed in the
manner herein provided within the jurisdiction of any Court in the territories to which this
Code extends. 44. Execution of decrees passed by Revenue Court in places to which this
Code does not extend.-The State Government may, by notification in the Official Gazette,
declare that the decrees of any Revenue Court in any part of India to which the provisions of
this Code do not extend or any class of such decrees, may be executed in the State as if they
had been passed by Courts in that State. 44A. Execution of decrees passed by Courts in
reciprocating territory.-(1) Where a certified copy of decree of any of the superior Courts of
any reciprocating territory has been filed in a District Court, the decree may be executed in
India as if it had been passed by the District Court. (2) Together with the certified copy of the
decree shall be filed a certificate from such superior Court stating the extent, if any, to which
the decree has been satisfied or adjusted and such certificate shall, for the purposes of
proceedings under this section, be conclusive proof of the extent of such satisfaction or
adjustment. (3) The provisions of section 47 shall as from the filing of the certified copy of
the decree apply to the proceedings of a District Court executing a decree under this section,
and the District Court shall refuse execution of any such decree, if it is shown to the
satisfaction of the Court that the decree falls within any of the exceptions specified in clauses
(a) to (f) of section 13. 4 [Explanation 1- "Reciprocating territory" means any country or
territory outside India which the Central Government may, by notification in the Official
Gazette, declare to be a reciprocating territory for the purposes of this section; and "superior
Courts", with reference to any such territory, means such Courts as may be specified in the
said notification. Explanation 2.- "Decree" with reference to a superior Court means any
decree or judgment of such Court under which a sum of money is payable, not being a sum
payable in respect of taxes or other charges of a like nature or in respect to a fine or other
52

penalty, but shall in no case include an arbitration award, even if such an award is
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enforceable as a decree or judgment.

45. Execution of decrees outside India.-So much of the foregoing sections of this Part as
empowers a Court to send a decree for execution to another Court shall be construed as
empowering a Court in any State to send a decree for execution to any Court established by
the authority of the Central Government outside India to which the State Government has by
notification in the Official Gazette declared this section to apply. “45-A. Execution of decrees
etc. passed or made before the Commencement of the Code in Pondicherry- Any Judgment,
decree or order passed or made before the Commencement of this Code by any Civil Court in
the Union Territory of Pondicherry shall for the purpose of execution be deemed to have been
passed or made under this Code. Provided that nothing contained in this section shall be
construed as extending the period of limitation to which any proceeding in respect of such
judgment decree or order may be subject.”

46. Precepts.-(1) Upon the application of the decree-holder the Court which passed the decree
may, whenever it thinks fit, issue a precept to any other Court which would be competent to
execute such decree to attach any property belonging to the judgment-debtor and specified in
the precept. (2) The Court to which a precept is sent shall proceed to attach the property in
the manner prescribed in regard to the attachment of property in execution of a decree:
Provided that no attachment under a precept shall continue for more than two months unless
the period of attachment is extended by an order of the Court which passed the decree or
unless before the determination of such attachment the decree has been transferred to the
Court by which the attachment has been made and the decree-holder has applied for an order
for the sale of such property. Questions to be determined by Court executing decree 47.
Questions to be determined by the Court executing decree.-(1) All questions arising between
the parties to the suit in which the decree was passed, or their representatives, and relating to
the execution, discharge or satisfaction of the decree, shall be determined by the Court
executing the decree and not by a separate suit. (3) Where a question arises as to whether any
person is or is not the representative of a party, such question shall, for the purposes of this
section, be determined by the Court. Explanation I.-For the purposes of this section, a
plaintiff whose suit has been dismissed and a defendant against whom a suit has been
dismissed are parties to the suit. Explanation II.-(a) For the purposes of this section, a
purchaser of property at a sale in execution of a decree shall be deemed to be a party to the
suit in which the decree is passed; and (b) all questions relating to the delivery of possession
53

of such property to such purchaser or his representative shall be deemed to be questions

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relating to the execution, discharge or satisfaction of the decree within the meaning of this
section.

PROCEDURE IN EXECUTION

51. Powers of Court to enforce execution.—Subject to such conditions and limitations as may
be prescribed; the Court may, on the application of the decree-holder, order execution of the
decree- (a) (b) (c) (d) (e) by delivery of any property specifically decreed; by attachment and
sale or by the sale without attachment of any property ; by arrest and detention in prison for
such period not exceeding the period specified in Section 58, where arrest and detention is
permissible under that section by appointing a receiver ; or in such other manner as the nature
of the relief granted may require : Provided that, where the decree is for the payment of
money, execution by detention in prison shall not be ordered unless, after giving the
judgment-debtor an opportunity of showing cause why he should not be committed to prison,
the Court, for reasons recorded in writing, is satisfied (a) that the judgment-debtor, with the
object or effect of obstructing or delaying the execution of the decree,— (i) (ii) is likely to
abscond or leave the local limits of the jurisdiction of the Court, or has, after the institution of
the suit in which the decree was passed, dishonestly transferred, concealed, or removed any
part of his property, or committed any other act of bad faith in relation to his property, or (b)
that the judgment-debtor has, or has had since the date of the decree, the means to pay the
amount of the decree or some substantial part thereof and refuses or neglects or has refused or
neglected to pay the same, or (c) that the decree is for a sum for which the judgment-debtor
was bound in a fiduciary capacity to account. Explanation.—In the calculation of the means
of the judgment-debtor for the purposes of clause (b), there shall be left out of account any
property which, by or under any law or custom having the force of law for the time being in
force, is exempt from attachment in execution of the decree. 52. Enforcement of decree
against legal representative.—(1) Where a decree is passed against a party as the legal
representative of a deceased person, and the decree is for the payment of money out of the
property of the deceased it may be executed by the attachment and sale of any such property.
(2) Where no such property remains in the possession of the judgment-debtor and he fails to
satisfy the court that he has duly applied such property of the deceased as is proved to have
come into his possession, the decree may be executed against the judgment-debtor to the
54

extent of the property in respect of which he has failed so to satisfy the court in the same
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manner as if the decree had been against him personally.

53. Liability of ancestral property.—For the purposes of Section 50 and Section 52, property
in the hands of a son or other descendant which is liable under Hindu law for the payment of
the debt of a deceased ancestor, in respect of which a decree has been passed, shall be
deemed to be property of the deceased which has come to the hands of the son or other
descendant as his legal representative. 54. Partition of estate or separation of share.—Where
the decree is for the partition of an undivided estate assessed to the payment of revenue to the
Government, or for the separate possession of a share of such an estate, the partition of the
estate or the separation of the share shall be made by the Collector or any gazette subordinate
of the Collector deputed by him in this behalf, in accordance with the law (if any) for the time
being in force relating to the partition, or the separate possession of shares, of such estates.

55. Arrest and detention.

-(1) A judgment-debtor may be arrested in execution of a decree at any hour and on any day,
and shall, as soon as practicable, be brought before the Court, and his detention may be in the
civil prison of the district in which the Court ordering the detention is situate, or, where such
civil prison does not afford suitable accommodation, in any other place which the State
Government may appoint for the detention of persons ordered by the Courts of such district
to be detained: Provided, firstly, that, for the purpose of making an arrest under this section,
no dwelling house shall be entered after sunset and before sunrise: Provided, secondly, that
no outer door of a dwelling-house shall be broken open unless such dwelling-house is in the
occupancy of the judgment-debtor and he refuses or in any way prevents access thereto, but
when the officer authorised to make the arrest has duly gained access to any dwelling-house,
he may break open the door of any room in which he has reason to believe the judgment-
debtor is to be found: Provided, thirdly, that, if the room is in the actual occupancy of a
woman who is not the judgment-debtor and who according to the customs of the country does
not appear in public, the officer authorised to make the arrest shall give notice to her that she
is at liberty to withdraw, and, after allowing a reasonable time for her to withdraw and giving
her reasonable facility for withdrawing, may enter the room for the purpose of making the
arrest: Provided, fourthly, that, where the decree in execution of which a judgment-debtor is
arrested, is a decree for the payment of money and the judgment-debtor pays the amount of
the decree and the costs of the arrest to the officer arresting him, such officer shall at once
55

release him. (2) The State Government may, by notification in the Official Gazette, declare
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that any person or class of persons whose arrest might be attended with danger or
inconvenience to the public shall not be liable to arrest in execution of a decree otherwise
than in accordance with such procedure as may be prescribed by the State Government in this
behalf. (3) Where a judgment-debtor is arrested in execution of a decree for the payment of
money and brought before the Court, the Court shall inform him that he may apply to be
declared an insolvent, and that he 1[may be discharged], if he has not committed any act of
bad faith regarding the subject of the application and if he complies with provisions of the
law of insolvency for the time being in force. (4) Where a judgment-debtor expresses his
intention to apply to be declared an insolvent and furnishes security, to the satisfaction of the
Court, that he will within one month so apply, and that he will appear, when called upon, in
any proceeding upon the application or upon the decree in execution of which he was
arrested, the Court 2[may release] him from arrest, and, if he fails so to apply and to appear,
the Court may either direct the security to be realised or commit him to the civil prison in
execution of the decree.

Attachment of Property And Sale in Execution

Section 60 CPC – Property liable to attachment and sale in execution of decree

All saleable property, whether movable or immovable, belonging to the judgment-debtor (JD)
and over which he has disposing power (whether in his own right or on behalf of someone
else), is liable to attachment and sale in execution of a decree.

This includes:

 Lands, houses, buildings, goods, money.

 Bank notes, cheques, bills of exchange, promissory notes.
 Government securities, bonds, debts, shares in corporations.
 Other saleable interests of the JD.

Certain categories of property cannot be attached or sold, such as:

1. Necessary wearing apparel, cooking vessels, beds, bedding of the JD, spouse and
children.
2. Tools of artisans and instruments used for personal labour or livelihood.
3. Houses and buildings occupied by agriculturists, laborers, or domestic servants.
56

4. Books of account.
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5. A mere right to sue for damages.

6. Stipends and gratuities allowed to Government pensioners, political pensions.
 7. Wages of laborers and domestic servants, and a portion of salary (up to a specified
exempt limit, generally the first ₹1,000 and 2/3 of the remainder, subject to rules).
8. Provident Fund, Insurance money, Endowment funds protected by law.
9. Agricultural produce in certain cases, until removed from land.

 Salary Attachment:
o Salary can be attached only to a limited extent (as explained above).
o Attachment cannot continue beyond 24 months for the same decree.
 Pensions & Provident Fund:
o Fully exempt from attachment, both before and after payment.
 Agriculturists’ Protection:
o Certain properties like houses, implements of husbandry, cattle, seed grain are
protected.

UNIT VIII

Appeals from original decrees – preliminary decree – second appeal – appeals to SC – stay
proceedings – form of appeals – powers of the appellate court – reference – review –
revision.

APPEALS (SECTION 96 TO 112, ORDER 41-45)

Introduction: The provisions relating to appeals are contained in Sections 96 to 112 and
Orders XLI to XLV of the Code of Civil Procedure and can be summarized as under: a. First
Appeal, Sections 96 to 99-A, 107 and Order XLI b. Second Appeal, Sections 100 to 103, 108
and Order XUI c. Appeals from Orders Sections 104, 108 and Order XLIII d. Appeals by
Indigent persons Order XLIV e. Appeals to Supreme Court Section 109 and Order 45
Meaning: The appeal means " the Judicial examination of the decisions by a higher Court of
the. decisions of an inferior Court" Right to Appeal: The right to appeal is a vested right. The
right to appeal is a substantive right and an appeal is a creature of statute and there is no right
of appeal unless it is given clearly in express terms by a statute. Appeal is a vested right and
accrues to the litigant and exists as on and from the date the lis commences and although it
may be actually exercised when the adverse judgment is pronounced. The right of appeal is to
57

be governed by the law prevailing at the date of the institution of the suit or proceeding and
not by the law that prevails at the date of its decision or at the date of the filing of the appeal.
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This vested right can be taken away only by a subsequent enactment if it so provides
expressly or by necessary implication, and not otherwise.

First Appeal : (Sections 96 – 99-A, 107 and Order XLI)

Appeal from Original Decree: S. 96 of the Code provides as: 1. Save where otherwise
expressly provided in the body of this Code or by any other law for the time being in force,
an appeal shall lie from every decree passed by any Court exercising original jurisdiction to
the Court authorized. to hear appeals from the decision of such Court. 2. An appeal may le
from an original decree passed ex parte. 3. No appeal shall lie from a decree passed by the
Court with the consent of parties. 4. No appeal shall lie, except on a question of law, from a
decree in any suit of the nature cognizable by Courts of small causes, when the amount or
value of the subject- matter of the original suit does not exceed ten thousand rupees. Who
may Appeal: The following persons are entitled to prefer an appeal : 1. A party to the suit
who is adversely affected by the decree {Section 96(1)}, or his legal representative. (Section
146) 2. A person claiming under a title party to the suit or a transferee of interests of such
party, who, so far as interest is concerned, is bound by the decree, provided his name is
entered on the record of the suit. (Section 146) 3. Guardian ad litem appointed by the Court in
a suit by or against a minor. (Section 147, Order 32, Rule 5) 4. Any other person, with the
leave of the Court, if he is adversely affected by the decree. An appeal may lie against an ex-
parte decree {S- 96(2)}and no appeal shall lie from a decree passed with consent of parties
{S- 96(3)}. The provision of S-96(3) is based upon principle of Estoppels. Once the decree is
shown to have been passed with the consent of parties, Section 96(3) becomes operative and
binds them. It creates and Estoppels between the parties as a judgment on consent. There
shall be no appeal in petty cases as provided in Section 96(4) and an appeal lies against
preliminary decree as in the case of all decrees, unless a final decree has been passed before
the date of filing an appeal, but there shall be no appeal against final decree when there was
no appeal against preliminary decree. In fact, final decree owes its existence to the
preliminary decree. The Conditions before filing an appeal: An appeal can be filed against
every decree passed by any Court in exercise of original jurisdiction upon the satisfaction of
the following two conditions: i) subject matter of the appeal must be ii) The party appealing
must. have been adversely affected by such determination.
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Order XLI - Appeal from Original Decrees. Form of Appeal: Rule 1 to 4

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Form of Appeal: Rule 1 to 4: a "decree", and Memorandum of Appeal: Contains the grounds
on which the judicial examination is invited. In order that an appeal may be validly presented,
the following requirements must be compiled with: a. It must be in the form of memorandum
setting forth the grounds of objections to the decree appealed from. It must It be must signed
by be the appellant presented Court to or the pleader. Court. The memorandum must be
accompanied by a certified copy of the decree. e. The memorandum must be accompanied by
a certified copy of the judgment unless the Court dispenses with it; and f. Where the appeal is
against a money decree, the appellant must deposit-the decretal amount or furnish the security
in respect thereof as per the direction of the Court.

Appeals From Appellate Decrees (Second Appeal Sections 100 to 103 and Order 42)
Section-100 Second Appeal:

Save as otherwise provided in the body of this Code or by any other law for the time being in
force, an appeal shall lie to the High Court from every decree passed in appeal by any Court
subordinate to the High Court, if the High Court is, satisfied that the case involves a
substantial question of law. 2. An appeal may lie under this section from an appellate decree
passed ex- parte. 3. In an appeal under this section, the memorandum of appeal shall precisely
state the substantial question of law involved in the appeal. 4. Where the High Court is
satisfied that a substantial question of law is involved in any case, it shall formulate such
question. 5. The appeal shall be heard on the question so formulated and the respondent shall,
after hearing of the appeal, be allowed to argue that the case does not involve such question:
Provided that nothing in this sub-section shall be deemed to take away or abridge the power
of the Court to hear, for reasons to be recorded, the appeal on any other substantial question
of law, not formulated by it, if it is satisfied that the case involves such question.

Substantial Question of Law: Means a substantial question of law as between the parties in
the case involved. A question of law is a substantial as between the parties if the decision
turns one way or the other on the particular view of law. If it does not affect the decision, it
cannot be said to be a substantial question of law.

Form of Second Appeal; A memorandum of second appeal precisely states the substantial
question of law involved, but, unlike the memorandum of 1st appeal, it need not set out the
59

ground of objections to the decree appealed from. Order 41 Rule 1.

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Appeal From Orders (Section 104 and Order 43)

Section 104: Orders from which appeal lies- 1. An appeal shall lie from the following orders,
and save as otherwise expressly provided in the body of this Code or by any law for the time
being in force, from no other orders: I. An order under Section 35 A; [Sec. 104(1) (ff)] II. an
order under Section 91 or Section 92 refusing leave to institute a suit of the nature referred to
in Section 91 or Section 92 , as the case may be; [Sec. 104(1) (ffa)] III. an order under
Section 95 ; [Sec.1 04(1) (g)] IV. an order under any of the provisions of the Code imposing a
fine or directing the arrest or detention in the Civil prison of any person except where such
arrest or detention is in execution of a decree; [Sec.104 (1) (h)] V. an order made under rules
from which an appeal is expressly allowed by rules; [Sec. 104(1) (i)] Provided that no appeal
shall lie against any order specified in clause (ff) save on the ground that no order, or an order
for the payment of a less amount, ought to have been made. {Proviso to, Section 1 04( 1 )} 2.
No appeal shall lie from any order passed in appeal under this Section. Section 105: a. Save
as otherwise expressly provided, no appeal shall lie from any order made by a Court in the
exercise of its original or appellate jurisdiction but, where a decree is appealed from, any
error defect or irregularity in any order, affecting the decision of the case may be set forth as
a ground of objection in the memorandum of appeal. b. Notwithstanding anything contained
in sub-section (1) where any party aggrieved by an order of remand from which an appeal lies
does not appeal there from, he shall thereafter be precluded from disputing its correctness.
Section 106 : What Courts to hear appeals: Where an appeal from any order is allowed it
shall lie to the Court to which an appeal would lie from the decree in the suit in which such
order was made, or where such order is made by a Court ( not being a High Court) in the
exercise of appellate jurisdiction then to the High court.

Appeals from Orders (Order XLIII)

Rule-1:Appeals from Orders: An appeal shall lie to the following orders under the provisions
of Section 104, namely: 1. An order returning a plaint to be presented to the proper Court . 2.
An order rejecting an application for an order to set aside the dismissal of a suit; 3. An order
rejecting an application for an order to set aside a decree passed ex parte; 4. An order under
rule 21 of Order XI; 5An order on an objection to the draft of a document or of endorsement;
6. setting aside or refusing to set aside a sale; 7, An order refusing to set aside the abatement
or dismissal of a suit; etc. 1. Where any order is made under this Code against a party and
60

thereupon any judgment is pronounced against such party and a decree is drawn up, such
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party may, in an appeal against the decree, contend that such order should not have been
made and the judgment should not have been pronounced. 2. In an appeal against a decree
passed In a suit after recording a compromise or refusing to record a compromise, it shall be
open to the appellant to contest the decree on the ground that the compromise should, or
should not have been recorded.

REFERENCE (Section - 113 and Order XIII)

Section 113 provides provisions relating to reference and empowers any Court (subordinate
Court) to state a case and refer the same for the opinion of the High Court. Such an opinion
can be sought when the Court itself feels some doubt about a question of law. The provisions
are subject to such conditions and limitations as may be prescribed.

Object: The object for reference is to enable the subordinate Courts to obtain in non-
appealable cases the opinion of the High Court, on a question of law and thereby avoid the
commission of an error which could not be remedied later on.

Conditions for Applications: (Order 46 Rule 1) The following conditions must be fulfilled,
before High Court entertains a reference from a sub-ordinate Court, i.e. 1. Pendency: There
must be pendency of a suit or appeal in which the decree is not the subject to appeal or a
pending proceeding in execution of such decree. 2. Question of law: A question of law or
usage having the force of law must arise in the course of such suit, appeal or proceeding ; and
3. Doubt in mind of Court: The Court trying the suit, appeal or executing the decree must
entertain a reasonable doubt on such question.

Questions of law: The subordinate Court may be in doubt relating to the questions of law,
which may be- 1. Those which relate to the validity of any Act, Ordinance or Regulation and
the reference upon such questions of law are obligatory upon the fulfilment of the following
conditions : 1. It is necessary to decide such question in order to dispose of the case; 2. The
Sub- ordinate Court is of the view that the impugned Act, Ordinance or Regulation is ultra
vires; and 3. That there is no determination by the Supreme Court or by the High Court, to
which such Court is Subordinate that such Act, Ordinance or Regulation is ultra vires. 2.
Other Questions: In this case the reference is optional. Procedure: Who can refer: A reference
can be made by the Court suo-motu or on application of any party. until Rule 1: The
Referring Court must formulate the question of law and give its opinion thereon. Rule 2: The
Court may either stay the proceeding or may pass a decree or order, which cannot be
61

executed receipt of judgment of High court on reference. Rule 3: The High Court after
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hearing the parties, if it so desires, shall decide the point of reference and the Subordinate
Court shall dispose of the case in accordance with the said decision.
Section 113:Reference to High Court:

Subject to such conditions and limitations as may be prescribed, any court may state a case
and refer the same for the opinion of the High Court, and the High Court may make such
order thereon as it thinks fit: PROVIDED that where the court is satisfied that a case pending
before it involves a question 9S to the validity of any Act, Ordinance or Regulation or of any
provision contained in an Act, Ordinance or Regulation, the determination of which is
necessary for the disposal of the case, and is of opinion that such Act, Ordinance, Regulation
or provision is invalid or inoperative, but has not been so declared by the High Court to
which that Court is subordinate or by the Supreme Court, the Court shall state a case setting
out its opinion and the reasons therefor, and refer the same for the opinion of, the High Court.
Powers and Duty of Referencing Court: A reference can be made on a question of law arisen
between the parties litigating, in a suit, appeal or execution proceeding, during the pendency
of such suit, appeal or proceeding and the Court is in doubt on such question of law. Powers
and Duty of High Court: The High Court entertains the consulting jurisdiction in cases of
reference and can neither make any order on merits nor can it make suggestions. In case of
reference the High Court may answer the question referred to it and send back the case to the
referring Court for disposal in accordance with law.33 Where a case is referred to the High
Court under Rule 1 of Order XLVI or under the proviso to section 113, the High Court may
return the case for amendment, and may alter, cancel or set- aside any decree or order which
the Court making reference has passed or made in the case out of which the reference arose,
and make such order as it thinks fit.

REVIEW (SECTION 114 AND ORDER XLVII)

Review (Section 114 and Order XLVII) Meaning: Review means re-examination or
reconsideration of the case by the same judge. It is a judicial re-examination of the case by
the same Court and by the same Judge. In it, a Judge, who has disposed of the matter, reviews
his earlier order in certain circumstances. Section 114 and Order XLVII: The provisions
relating to review are provided in S. 114 (substantive right) and Order XLVII (procedure).
The general rule is that once the judgment is signed and pronounced or an order is made by
the Court, it has no jurisdiction to alter it. Review is an exception to this general rule. Section
114: Review: Subject as aforesaid, any person considering himself aggrieved a. by a decree
62

or order from which an appeal is allowed by this Code, but from which no appeal has been
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preferred; b. by a decree or order from which no appeal is allowed by this Code, or c. by a

decision on a reference from a Court of Small Causes, may apply for a review of judgment to
the Court which passed the decree or made the order and the Court may make such order
thereon as it thinks fit. Who may apply to Review: Any person aggrieved by a decree or order
may apply for a review of Judgment where no appeal is allowed or where an appeal is
allowed but no appeal has been filed against such decree or order or by a decision on a
reference from a small cause. An 'aggrieved person'. means a person who has suffered a legal
grievance or against whom a decision has been pronounced which has wrongfully deprived
him of something or wrongfully refused in something or wrongfully affected his title to
something.

A person who is not a party to the decree or order cannot apply for review since on general
principle of B.W, such decree or order is not binding on him and therefore he cannot be said
to be an aggrieved person within the meaning of section 114 and order 47 Rule (1). A party
who has a right to appeal but does not file an appeal, may apply for a review of judgment,
even if notwithstanding the pendency of an appeal by some other party, excepts? i. Where the
ground of such appeal is common to the applicant and the appellant, or ii. When, being
respondent, he can present to the Appellate Court the case on which he applies for the review.

Grounds of Review: Order XLVII, Rule (1) provides the following grounds:

Discovery of new and important matter or evidence, which after the exercise of due diligence,
was not within his (aggrieved person's) knowledge or could not be produced by him
(aggrieved person) at the time when the decree was passed or order made; or ii. on account of
some mistake or error appear on the face of the record; or iii. for any other sufficient reason.
Explanation to section 114 specifically provides that "the fact that the decision on a question
of law or which the judgment of the Court is based has been reserved or modified by the
subsequent decision or a superior court in any other case, shall not be a ground for review of
such judgment".

Procedure: Where the Court is of the opinion that there is not sufficient ground for a review,
it shall reject the application otherwise it shall grant the same but no such application shall be
grantee without previous notice to the opposite party; to enable him to appear and be heard in
support of the decree or order, a review of which is applied for. Where more than one Judge
63

hears a review application and the Court is equally divided the application shall be rejected.
Appeal Against Order on application U/s 114: An order of the Court rejecting the application
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shall not be appealable, but an order granting the application may be objected to at once by an
appeal from the order granting the application or in an appeal from the decree or order finally
passed or made in the suit. Bar of Certain Application: No application to review an order
made on an application for a review or decree or order passed or made on a review shall be
entertained.

REVISION (SECTION 115)

Meaning: 'Revision' means "the action of revising, especially critical or careful examination
or perusal with a view to correcting or improving". Revision is "the act of examining action
in order to remove an defect or grant relief against the irregular or improper exercise or non-
exercise of jurisdiction by a lower Court".

Object: The object of Section 115 is to prevent the subordinate Courts from acting arbitrarily,
capricious and illegally or irregularly in the exercise of their jurisdiction. It enables the Court
to correct, when necessary, errors of jurisdiction 'committed by the subordinate Courts and
provides the means to aggrieved party to obtain rectification of a non- appealable order. The
powers U/s 115 are intended to meet the ends of justice and where substantial justice has
been rendered by the order of the lower Court the High Court will not interfere. Provision U/s
115: to have 1. The High Court may call for the record of any case which has been decided
by any COl subordinate to such High Court and in which no appeal lies thereto, and if such
subordinate court appears- a. exercised a jurisdiction b. to have failed to exercise a
jurisdiction so vested, or not vested in it by law, or c. to have acted in the exercise of its
jurisdiction illegally or with material irregularity, The High Court may make such order in
the case as it thinks fit : PROVIDED that the High Court shall not, under this section, vary or
reverse any order made, or any order deciding an issue, in the course of a suit or other
proceeding, except where the order, if it had been made in favour of the party applying for
revision, would have finally disposed of the suit or other proceedings. 2. The High Court
shall not, under this section vary or reverse any decree or order against Which an appeal lies
either to the High Court or to any court subordinate thereto. 3. A revision shall not operate as
a stay of suit or other proceeding before the court except where such suit or other proceeding
is stayed by the High Court. Explanation: In this section, the expression "any case which has
been decided" includes any order made, or any order deciding an issue, in the course of a suit
or other proceeding. Provision relating to Revision in Uttar Pradesh: For S. 115, the
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following section shall be substituted and be deemed to have been substituted with effect
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from July 1, 2002, namely: "

115. Revision - exercised 1. A superior Court may revise an order passed in a case decided in
an original suit or other proceeding by a subordinate Court where no appeal lies against' the'
order and where the subordinate Court has : a) a b) failed to jurisdiction exercise not a vested
in jurisdiction c) acted in exercise of its jurisdiction illegally or with material irregularity. it
so by law; vested; or 2. A revision application under sub-section (1 ),.when filed in the High
Court. shall contain a certificate on the first page of such application, below the title, to the
effect that no revision in the case lies to the district Court but lies only to the High Court
either because of valuation or because the order sought to be revised was passed by the
district Court. 3. The superior Court shall not, under this section, vary or reverse any order
made except where-, a. the order, if it had been made in favour of the party applying for
revision, would have finally disposed of the suit or other proceeding; or b. the order, if
allowed to stand, would occasion a failure of justice or cause irreparable injury to the party
against whom it is made. 4. A revision shall not operate as a stay of suit or other proceeding
before the Court except where such suit or other proceeding is stayed by the superior Court.

Conditions: The following conditions must be satisfied before the revisional power can be
exercised: a. a case must have been decided; b. the Court deciding the case must be one
which is a Court sub-ordinate to the High Court or the Session Courts, as the case may be; c.
the order should be one in which no appeal lies; and d. the sub-ordinate Court must have i.
exercised jurisdiction not vested in it by law; or ii. failed to exercise jurisdiction vested in it;
or iii. acted in the exercise of its jurisdiction illegally or with material irregularity.

Application of S. 115: “…….While exercising its jurisdiction U/s 115, it is not competent to
the High Court to correct errors of fact, however gross they may be, or even errors of law,
unless the said errors have relations to the jurisdiction of the Court to try the dispute itself. As
cis. (a), (b) and (c) of section 115 indicate, it is only in cases where the sub-ordinate Court
has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction
illegally or with material irregularity that the revisional jurisdiction of the High Court can be
properly invoked...." It was decided by the Supreme Court in re Smt. Vidyavati Vs Shri
Devidas AIR 1977 S. C. 397, that a revision against order on review application by sub-judge
to High Court directly without going into appeal to District Court, is maintainable. Meaning
of Expression "case Decided": Apex Court in Baldevdas v. Filmistan Distributors AIR 1970
65

SC, held that a case may be said to have been decided if the Court adjudicates for the purpose
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of the suit some right or obligation of the parties in controversy. Every order in the suit
cannot be regarded as a case decided within the meaning of S. 115. Explanation to S.115,
which was added by the Amendment Act of 1976, makes it clear that the expression "case
decided" includes any order made, or any order deciding an issue, in the course of a suit or
proceeding. The expression 'any case which has been decided', now, after the Amendment
Act means "each decision which terminates a part of the controversy involving the question
of jurisdiction. Interlocutory Orders: Section 115 applies even to interlocutory orders.
Interlocutory Orders which are not appealable are subject to revision U/s 115 of the Code, if
the conditions laid down in the section are fulfilled. Limitation for Revision: The period of
limitation for revision application is 90 da s ... ecree or order sought to be revised.
Abatement: The provisions of Order XXII do not apply to revision application and such
application does of abate on the death of the applicant or on account of failure to bring legal
heirs of deceased applicant record. No letters patent appeal lies from an order made in the
exercise of revisional jurisdiction and no revision lies against an order passed by a single
judge of a High Court.

UNIT IX

LIMITATION ACT

LIMITATION OF SUITS, APPEALS AND APPLICATIONS

Section 3 (1) Subject to the provisions contained in Sections 4 to 24, every suit instituted,
appeal preferred, and application made after the prescribed period shall be dismissed
although limitation has not been set up as a defence. (2)

For the purpose of this Act-- a suit is instituted ---

• in an ordinary course, when the plaint is presented to the proper officer;

• in case of a pauper , when the application for leave to sue as a pauper is made; and

• in the case of a claim against a company which is being wound up by the court, when
claimant first sends in his claim to the official liquidator;

• any claim by way of set off or counter claim, shall be treated as a separate suit and shall be
deemed to have been instituted—

• in the case of set-off, on the same date as the suit in which the set off is pleaded • in case of
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counter-claim, on the date on which the counter claim is made in the court. Section 3 of the
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Limitation Act enjoins a court to dismiss any suit instituted, appeal preferred and application
made, after the period of limitation prescribed therefore by the Schedule irrespective of the
fact whether the opponent had set up the plea of limitation or not.

It is the duty of the court not to proceed with the application if it is made beyond the period of
limitation prescribed. The court had no choice and if in construing the necessary provision of
the Limitation Act or in determining which provision of the Limitation Act applies, the
subordinate court comes to an erroneous decision, it is open to the court in revision to
interfere with that conclusion as that conclusion led the court to assume or not to assume the
jurisdiction to proceed with the determination of that matter. Section 3 limits the time after
which a suit or other proceeding would be barred. The right to sue and the commencement of
the running of time for purpose of the limitation depend on the date when the cause of action
arose. Cause of action is a fact or combination of facts that gives a person the right to seek
judicial redress or relief against another. Section 3 bars only the institution of suits,
application and appeals, and the period within which the same has to be filed. But so far the
defense is concerned there is no such limitation. There can be no period of limitation for acts
which the courts are bound to perform. Section 2 (j) Prescribed Period- “period of limitation”
means the period of limitation prescribed for any suit, appeal or application by the Schedule,
and “prescribed period” means the period of limitation computed in accordance with the
provisions of this Act. The limitation Act does not extinguish a right but it only bars the
remedy. It is, therefore, manifest that the Limitation Act does not extinguish a defence, but
only bars the remedy. Since the period of limitation bars a suit for specific performance of a
contract, if brought after the period of limitation, it is open to a defendant in a suit for
recovery of possession brought by a transferor to take a plea in defence of part-performance
of the contract to protect his possession, though he may not be able to enforce that right
through a suit or action.

Section 4 –

Expiry of prescribed period when court is closed -- Where the prescribed period for any suit,
appeal or application expires on a day when the court is closed, the suit, appeal or application
may be Instituted, preferred or made on the day when the court reopens.

Section 4 has nothing to do with period of limitation. It does not add to the period of
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Limitation. It only extends the concession that is notwithstanding that the period of limitation
expires on a day when the court is closed suit appeal or application may be filed on the day
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on which the court reopens.

Section 5- Extension of prescribed period in certain cases-- Any appeal or any application
other than an application under any of the provisions of order 21 of the CPC,may be admitted
after the prescribed period, if the appellant or applicant satisfies the court that he had
sufficient cause for not preferring the appeal or making the application within such period.
This Section applies to Criminal Appeal as well. Delay in filing Criminal Appeal should be
excused when where it was erroneously filed in another court. Criminal Procedure Code is
not a special law within the meaning of Section 29 but it is a general law relating to
procedure. Appeal under Criminal Procedure Code – The delay in filing appeal against
acquittal can be condoned under section 5.

But sufficient cause must be established to condone the delay by the appellate court.
Application for setting aside ex-parte decree cannot be allowed without condoning the delay.
In this case no application was filed for condonation of delay in filing a petition under Order
9 R 13 of CPC. Condonation of delay in filing appeal can be decided only after hearing both
the parties. Order 22, Rule 9 (3) the consideration of condonation of delay under section 5 of
the Limitation Act and for setting aside abetment under order 22 CPC are entirely different
and the court always liberally considers the latter though in some cases the court may refuse
to condone the delay in filing the appeal. A competent civil court has power to pass an
interim order of injunction pending hearing of application under Section 5 of the Limitation
Act. Examination of witnesses not necessary- The application for condonation of the delay is
not required to be considered on the basis of the evidence of witnesses. The application is to
be decided on affidavits. Application for condonation of the delay under S.5 ought not to be
dismissed by a non-speaking order. Section 5 of the Limitation Act empowers the court to
admit an application, to which its provisions are made applicable, even when presented after
the expiry of the specified period of limitation if it is satisfied that the applicant had sufficient
cause for not presenting it within time. The court therefore had jurisdiction to determine
whether there was sufficient cause for the appellants not making the application for the
setting aside of the abatement of the suit in time and, if so satisfied, to admit it.

Section 5 of the Limitation Act provides for extension of prescribed period of limitation in
certain cases and confers jurisdiction upon the court to admit any application or any appeal
after the prescribed period if it is satisfied that the appellant or applicant had sufficient cause
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for not preferring such appeal or application within the prescribed period. It was also held
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that even if the sufficient cause has been shown a party is not entitled to the condonation of
delay in question as a matter of right. The proof of a sufficient cause is a condition precedent
for the exercise of the discretionary jurisdiction vested in the court by section 5. This aspect
of the matter naturally introduces the consideration of all facts and it is at this stage the
diligence of the party of its bona fides may fall for consideration.

SECTION 6-INDICATES LEGAL DISABILITY-

Where a person entitled to institute a suit or make an application for the execution of a decree
is, at the time from which the prescribed period is to be reckoned, a minor or insane, or an
idiot, he may institute the suit or make the application within the same period after the
disability has ceases, as would otherwise have been allowed from the time specified therefore
in the third column of the Schedule. (2) Where such person is, at the time from which the
prescribed period it to be reckoned,affected by two such disabilities, or where, before his
disability has ceased, he is affected by another disability, he may institute the suit or make the
application within the same period after both disabilities have ceased, as would otherwise
have been allowed from the time so specified. (3) Where the disability continues up to the
death of that person, his legal representative may institute the suit or make the application
within the same period after the death, as would otherwise have been allowed from the time
so specified. (4) Where the legal representative referred to in sub-section (3) is, at the date of
the death of the person whom he represents. affected by any such disability, the rules
contained in sub- sections (1) and (2) shall apply. (5) Where a person under disability dies
after the disability ceases but within the period allowed to him under this section, his legal
representative may institute the suit or make the application within the same period after the
death, as would otherwise have been available to that person had he not died.

Explanation - For the purposes of this section 'minor' includes a child in the womb. This
section will not grant indulgence to a minor entitled to prefer an appeal; it provides only for
suits or applications for execution of decree. Section 6 does not cover a case of an application
under O 21 R 90 CPC to set aside a sale held in execution of a decree. Nor does it apply to an
application for the readmission of an appeal under O 41 R 10 of the CPC. Sections 6,7 and 8
from a group, they supplement each other and are not exclusive. Section 7-- Disability of one
of several persons— Where one of several persons jointly entitled to institute a suit or make
an application for the execution of a decree is under any such disability, and a discharge can
be given without the concurrence of such person, time will run against them all; but when no
69

such discharge can be given, time will not run as against any of them until one of them
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becomes capable of giving such discharge without the concurrence of the others or until the
disability has ceased.

Limitation cannot run unless the cause of action has arisen. A cause of action normally
accrues when there is in existence a person who can sue and another can be sued, and when
all the facts happened which are material to be proved to entitle the plaintiff to succeed.
Where time has begun to run owing to the right to sue having accrued to a person not
laboring under any legal disability, the subsequent disability of himself or his son or other
representative is not a ground of exemption from the operation of the ordinary rule.

8. Special exceptions.— Nothing in section 6 or in section 7 applies to suits to enforce rights

of pre-emption, or shall be deemed to extend, for more than three years from the cessation of
the disability or the death of the person affected thereby, the period of limitation for any suit
or application.

9. Continuous running of time.— Where once time has begun to run, no subsequent disability
or inability to institute a suit or make an application stops it:Provided that where letters of
administration to the estate of a creditor have been granted to his debtor, the running of the
period of limitation for a suit to recover the debt shall be suspended while the administration
continues.

Section 10- Suits against trustees and their representatives- Notwithstanding anything
contained in the foregoing provisions of this Act, no suit against a person in whom property
has become vested if trust for any specific purpose, or against his legal representatives or
assigns (not being assigns for valuable consideration), for the purpose of following in his or
their hands such property, or the proceeds thereof or for an account of such property or
proceeds, shall be barred by any length of time. 1. Suits on contracts entered into outside the
territories to which the Act extends.— (1) Suits instituted in the territories to which this Act
extends on contracts entered into in the State of Jammu and Kashmir or in a foreign country
shall be subject to the rules of limitation contained in this Act. (2) No rule of limitation in
force in the State of Jammu and Kashmir or in a foreign country shall be a defence to a suit
instituted in the said territories on a contract entered into in that State or in a foreign country
unless— (a) the rule has extinguished the contract; and (b) the parties were domiciled in that
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State or in the foreign country during the period prescribed by such rule.
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Section 12 -. Exclusion of time in legal proceedings – (1) In computing the period of

limitation for any suit, appeal or application, the day from which such period is to be
reckoned shall be excluded. (2) In computing the period of limitation for an appeal or an
application for leave to appeal or for revision or for review of a judgment, the day on which
the judgment complained of was pronounced and the time requisite for obtaining a copy of
the decree, sentence or order appealed from or sought to be revised or reviewed shall be
excluded. (3) Where a decree or order is appealed from or sought to be revised or reviewed,
or when an application is made for leave to appeal from a decree or order the time requisite
for obtaining a copy of the judgment on which the decree or order is founded shall also be
excluded. (4) In computing the period of limitation for an application to set aside an award,
the time requisite for obtaining a copy of the award shall be excluded.

Section 13- Exclusion of time in cases where leave to sue or appeal as a pauper is applied for-
In computing the period of limitation prescribed for any suit or appeal in any case where an
application for leave to sue or appeal as a pauper has been made and rejected,the time during
which the applicant has been prosecuting in good faith his application for such leave shall be
excluded, and the court may, on payment of the court-fees prescribed for such suit or appeal,
treat the suit or appeal as having the same force and effect as if the court-fees had been paid
in the first instance.

SECTION 14

Exclusion of time of proceeding bona fide in court without jurisdiction – (1) In computing the
period of limitation for any suit the time during which the plaintiff has been prosecuting with
due diligence another civil proceeding,whether in a court of first instance or of the appeal or
revision, against the defendant shall be excluded, where the proceeding relates to the same
matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or
other cause of a like nature, is unable to entertain it. (2) In computing the period of limitation
for any application, the time during which the applicant has been prosecuting with due
diligence another civil proceeding, whether in a court of first instance or of appeal or
revision,against the same party for the same relief shall be excluded, where such proceeding
is prosecuted in good faith in a count of first instance or of appeal or revision, against the
same party for the same relief shall be excluded, where such proceeding is prosecuted in good
faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to
entertain it. (3) Notwithstanding anything contained in rule 2 of Order XXIII of the Code of
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Civil Procedure, 1908 (5 of 1908), the provisions of sub-section (1) shall apply in relation to
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a fresh suit instituted on permission granted by the court under rule of that Order, where such
permission is granted on the ground that the first suit must fail by reason of a defect in the
jurisdiction of the court of other cause of a like nature.

Explanation - For the purpose of this section, - 1) in excluding the time during which a
former civil proceeding was pending, theday on which that proceeding was instituted and the
day on which it endedshall both be counted; 2) a plaintiff or an applicant resisting an appeal
shall be deemed to be prosecutinga proceeding; 3) misjoinder of parties or of causes of action
shall be deemed to be a cause of alike nature with defect of jurisdiction. The policy of the
section is to afford protection to a litigant against the bar of limitation when he institutes a
proceeding which by reason of some technical defect cannot be decided on merits and is
dismissed. But, when the party seeking the benefit of this section has failed to get the relief in
earlier proceedings not because of any defect in jurisdiction or some other cause of like
nature he cannot get the benefit of section 14. When the plaintiff has concurrent remedies and
has availed one remedy and has become unsuccessful he cannot get the benefit of section 14
when instituting the second alternative remedy though section 14 does apply to appeal, the
principle underlying it can be invoked in aid of sufficient cause contemplated by section 15.
The benefit of this provision is not available in criminal proceeding. Execution proceeding is
a civil proceeding within the meaning of S.14, the primary requirement for seeking exclusion
u/s 14 is that the matter was prosecuted before a court suffering from defect in jurisdiction.
Further it is necessary that the same plaintiff should be in both the suits it is not necessary
that the plaintiff must have been prosecuting the previous proceeding as a plaintiff, it is
sufficient if as a defendant he was urging the same case as he after words prefers as a
plaintiff. It is also necessary that the defendant must be the same in both the proceeding. Due
diligence in good faith needs to be established. The definition of good faith is given under S.
2 (4) of the Limitation Act, which requires the thing to be done with due care and attention.
S.14 will not help a party who is guilty of negligence lapse or in action. This Section also
does not apply where the previous suit was abandoned or withdrawn by the plaintiff and then
a fresh suit has been filed after the period of limitation. There is a fundamental distinction
between discretion to be used under Section 5 of the Limitation Act and exclusion of time
provided under Section 14 of the Limitation Act. Whereas the exclusion under Section 5 is
discretionary, under S/14 it is mandatory. If the initial filing is due to carelessness the
subsequent prosecution of the suit cannot be said in good faith. The benefit of this section can
72

be availed only when there is initial want of jurisdiction. Where the plaintiff chooses to
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withdraw his suit under O 23 R 1 CPC he is not entitled to the benefit of Section 14 of the
Limitation Act in a subsequent suit on the same cause of action. If a suit is withdrawn by the
plaintiff under O 23 R 1 with permission to bring another suit, and a fresh suit is instituted,
the plaintiff is bound by the limitation in the same manner as if the first suit had not been
instituted. This is so even if the court expresses it opinion that Section 14 shall apply. The
policy of the Section is to afford protection against the bar of limitation to a man pursuing his
claim in a wrong forum. The following condition must be satisfied for the application of this
Section-- • Both the prior and subsequent proceeding are civil proceeding prosecuted by the
same party • The prior proceeding had been prosecuted with due diligence • The failure of the
prior proceeding was on account of jurisdiction or subjects of like nature • The prior
proceeding and the later proceeding should be of the like nature. • It applies only to
proceedings before Court For example: First Respondent obtained a decree in a suit and the
said decree was put in execution vide Execution Petition No. 705 of 1977. Respondent no 2
to 6 are the heirs and legal representative of Respondent no.1. The said execution petition
was dismissed by an order dated 8.7.1996.

SECTION 15

Exclusion of time in certain other cases (1) In computing the period of limitation for any suit
or application for the execution of a decree, the institution or execution of which has been
stayed by injunction or order, the time of continuance of the injunction or order, the day on
which it was issued or made, and the day on which it was withdrawn, shall be excluded. (2)
In computing the period of limitation for any suit of which notice has been given,or for which
the previous consent or sanction of the Government or any other authority is required, in
accordance with the requirements of any law for the time being in force, the period of such
notice or, as the case may be, the time required for obtaining such consent or sanction shall
be excluded. Explanation - In excluding the time required for obtaining the consent or
sanction of the Government or any other authority, the date on which the application was
made obtaining the consent or sanction and the date of receipt of the order of the Government
or other authority shall both be counted. (3) In computing the period of limitation for any suit
or application for execution of decree by any receiver of interim receiver appointed in
proceedings for the adjudication of a person as an insolvent or by any liquidator or
provisional liquidator appointment in proceedings for the winding up of a company, the
73

period beginning with the date of institution of such proceeding and ending with the expiry of
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three months from the date of appointment of such receiver or liquidator, as the case maybe,
shall be excluded. (4) In computing the period of limitation for a suit for possession by a
purchaser at a sale in execution of a decree, the time during which a proceeding to set aside
the sale has been prosecuted shall be excluded. (5) In computing the period of limitation for
any suit the time during which the defendant has been absent from India and from the
territories outside India under the administration of the Central Government, shall be
excluded. In computing the period of limitation, where a suit has been filed or an application
for stay has been made, the time during which there was a stay order of the against the filing
of suit or execution application shall be excluded. Where a plaintiff is required to give notice
to the Government u/s 80 Civil Procedure Code he is entitle to exclude the period of notice in
computing the period of limitation prescribed for the suit. A receiver including an interim
receiver or a liquidator including a provisional liquidator appointed in a proceeding for
adjudication of a person as an insolvent or in proceeding for the winding up of a company as
the case may be, is entitled, in view of sub-sec. (3), the exclusion of the period between the
date of application and the date of appointment and also additional period of three months
thereafter in computing the period of limitation for filing suit or execution as such receiver or
liquidator. As such receiver or liquidator needs sufficient time to acquaint himself with the
affairs of the estate or of the company, as the case may be, and its assets and liabilities before
he can take steps for filing a suit or for giving him a period of three months after his
appointment to file a suit or a petition for execution. Two condition have to be fulfilled in
order to obtain the benefit of S. 15 (4) namely : The suit should be one for possession by the
purchaser at a sale in execution of the decree, and it should be a suit and not an application if
this two conditions are fulfilled then the time during which a proceeding for setting aside the
sale deed been prosecuted shall be excluded. For example :: The plaintiff company filed a suit
on 15th November 1965 for recovery of a sum of money from the defendant company on
account of the tax liability of the latter discharged by the plaintiff before 15th November
1962. The defendant, a foreign company, was attending the general meetings of the plaintiff
company through its representatives. Held: Section 15(5) of the Limitation Act, 1963 can be
viewed in one of the two ways i.e. that that provision does not apply to incorporated
companies at all or alternatively that the incorporated companies must be held to reside in
places where they carry on their activities and thus being present in all those places. Hunger
ford is an investment company. It had invested large sums of monies in Turner Morrison. Its
Board of Directors used to meet in India now and then. It was (through its representatives)
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attending the general meeting of the shareholders of Turner Morrison. Under those
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circumstances, it must be held to have been residing in this country and consequently was not
absent from this country. Hence Section 15(5) cannot afford any assistance to Turner
Morrison to save the bar of limitation.

SECTION 16- EFFECT OF DEATH ON OR BEFORE THE ACCRUAL OF RIGHT TO

SUE

(1) Where a person who would, if he were living, have a right to institute a suit or make an
application dies before the right accrues, or where a right to institute a suit or make an
application accrues only on the death of a person, the period of limitation shall be computed
from the time when there is a legal representative of the deceased capable of instituting such
suit or making such application. (2) Where a person against whom, if he were living, a right
to institute a suit or make an application would have accrued dies before the right accrues, or
where a right to institute a suit or make an application against any person accrues on the
death of such person, the period of limitation shall be computed from the time when there is a
legal representative of the deceased against whom the plaintiff may institute such suit or
make such application. (3) Nothing in sub-section (1) or sub-section (2) applies to suits to
enforce rights of preemption or to suit for the possession of immovable property or of a
hereditary office. “Before the right accrues” – The death must occur before the right to sue or
make an application accrues. If the right accrues in the life-time of the deceased, limitation
begins to run from the date of accrual, and it matters not whether by a will proved or by any
other means a legal representative comes into existence or not. The intention of Section 16 is
to limit the time during which an action may be brought and not to take away the rights of a
person who is a possible defendant to an action and it is not intended to accurate any right of
action against such a person. The expression ‘capable of suing’ is the equivalent of ‘not being
under legal disability to sue’. It does not refer to an incapacity arising from want of means or
absence or other physical cause. Section 16 confines to rights of action accruing after death.
It makes it applicable to rights of action accruing either simultaneous on death or thereafter of
the person suing or sued. In order to attract the applicability of Section 16, it is necessary that
the death must occur before the right to institute a suit or make an application accrues. If the
right to institute a suit or make an application accrues in the life time of the deceased the
limitation shall begin to run from the date of the accrual of cause of action and the provisions
of Section 16 would not apply.
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SECTION 17-- EFFECT OF FRAUD OR MISTAKE

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Where, in the case of any suit or application for which a period of limitation is prescribed by
this Act,-- (a) the suit of application is based upon the fraud of the defendant or respondent or
his agent; or (b) the knowledge of the right or title on which the suit or application is founded
is concealed by the fraud of any such person as aforesaid; or (c) the suit or application is for
relief from the consequences of a mistake; or (d) where any document necessary to establish
the right of the plaintiff or applicant has been fraudulently concealed from him;the period of
limitation shall not begin to run until plaintiff or applicant has discovered the fraud or the
mistake or with reasonable diligence could have discovered the it; or in the case of a
concealed document, applicant first had the means of producing the concealed document or
compelling its production; Provided that nothing in this section shall enable any suit to be
instituted or application to be made to recover or enforce any charge against or set aside any
transaction affecting, any property which- i. in the case of fraud, has been purchased for
valuable consideration by a person who was not a party to the fraud and did not at the time of
the purchase know,or have reason to believe, that any fraud had been committed, or ii. in the
case of mistake, has been purchased for valuable consideration subsequently to the
transaction in which the mistake was made, by a person who did not know, or have reason to
believe, that the mistake had been made, or iii. in the case of a concealed document, has been
purchased for valuable consideration by a person who was not a party to the concealment
and, did not at the time of purchase know, or have reason to believe, that the document had
been concealed. (2) Where a judgment-debtor has, by fraud or force, prevented the execution
of a decree or order within the period of limitation, the court may, on the application of the
judgment- creditor made after the expiry of the said period extend the period for execution of
the decree or order: Provided that such application is made within one year from the date of
the discovery of the fraud or the cessation of force, as the case may be.

Note : This section does not apply to criminal cases. According to the Hon’ble Supreme
Court in Pallav Sheth v. Custodian (2001) 7 SCC 549, the provision of this section embodies
fundamental principles of justice and equity, vis., that a party should not be penalized for
failing to adopt legal proceedings when the facts or material necessary for him to do so have
been willfully concealed from him and also that a party who has acted fraudulently should
not gain the benefit of limitation running in his favor by virtue of such fraud. If the plaintiff
claims exemption on the ground of fraud on the part of the defendant he must proof the fraud.
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In such a case it is for the plaintiff to give in the first instance clear proof of the fraud alleged
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by him. The court will not presume it from the mere existence of suspicious circumstances.
Reference : Recently in 2018, the Hon’ble Supreme Court in P. Radha Bai v. P. Ashok
Kumar, examined the applicability of Section 17 of the Limitation Act, 1963 for condonation
of a delay caused on the account of alleged fraud played on the objector (party challenging
the award) beyond the period prescribed under Section 34 (3) of the Arbitration and
Conciliation Act of 1996. According to the Hon’ble Court, Section 17 does not encompass all
kinds of frauds and mistakes. Section 17(1)(b) and (d) only encompasses only those
fraudulent conduct or act of concealment of documents which have the effect of suppressing
the knowledge entitling a party to pursue its legal remedy. Once a party becomes aware of the
antecedent facts necessary to pursue a legal proceeding, the limitation period commences.

SECTION 18- EFFECT OF ACKNOWLEDGMENT IN WRITING (1) Where before the

expiration of the prescribed period for a suit or application in respect or any property or right,
an acknowledgment of liability in respect of such property or right has been made in writing
signed by the party against whom such property or right is claimed, or by any person through
whom he derived his title or liability, a fresh period of limitation shall be computed from the
time when the acknowledgment was so signed. (2) Where the writing containing thee
acknowledgment is undated, oral evidence maybe given of the time when it was signed; but
subject to the provisions of the Indian Evidence Act,1872 ( 1 of 1872), oral evidence of its
contents shall not be received.

Explanation - For the purposes of this section, - a. an acknowledgment may be sufficient

though it omits to specify the exact nature of the property or right, or avers that the time for
payment, delivery, performance or enjoyment has not yet come or is accompanied by refusal
to pay, deliver, perform or permit to enjoy, or is coupled with a claim to set-off, or is
addressed to a person other than a person entitled to the property or right; b. the word
"signed" means signed either personally or by an agent duly Authorized in this behalf; and c.
an application for the execution of a decree or order shall not be deemed to be an application
in respect of any property or right. It is not necessary that an acknowledgment within Section
18 must contain a promise pay or should amount to a promise to pay. The acknowledgment
must be unqualified so as to create fresh cause of action. The acknowledgment must be of
existing liability. It must be an acknowledgment of debt as such and must involve an
admission of a subsisting relationship of debtor and creditor; and an intention to continue it
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until it is lawfully determined must also be evident. The acknowledgment must be made
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before the expiry of the period of limitation. An acknowledgment of barred liability is not
material. Thus where the debt has already become time-barred, acknowledgment cannot
create fresh period of limitation. An acknowledgment without signature is no
acknowledgment. It will be sufficient if the acknowledgment is signed by the agent and not
by the debtor. Acknowledgment should be by a person who has personal liability to pay.
Acknowledgment does not create a new debt it only extends the period of limitation.
Acknowledgment must relate to a definite liability in respect of the right claimed.
Explanation (b) to S.18 has explained that the writing containing the acknowledgment need
not be signed by the debtor himself;it would be sufficient if the signature is that of the agent.
Agents authority may be by way of a power of attorney or it may be gathered from the
surrounding circumstance of the case. An unregistered document, registration of which is
compulsory, can be used for the collateral purpose of proving acknowledgment of liability for
the purpose of extending time under S.18 of the Limitation Act. Application to Execution
Proceedings – Section 18 does not apply to execution of decree. So, even in case of consent
decree for specific performance of contract, the execution has to be filed within 12 years of
the date on which the decree becomes executable.

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