Code of Procedure Code 1908,Limitiation Act 1963

Introduction
Code
1. Body – I58 Sec – 12 parts – Amended only by Legislature
2. First Schedule – 54 orders and Rules – Amended by High Court by virtue sec 122
Steps
Plaintiff-> Plaint then court Issue Summons -> Defendant -> then he file a written statement -> court will
frame issues-> evidence->argument->witness-> judgement and decree -> execution application
Order in favour – decree holder , order against- judgement debtor
Aggrieved
1. Appeal- memorandum of appeal
2. Revision petition in HC – court passed has no jurisdiction
3. Review application – error in decree apparent face of record
Essentials of Suit
1. Two parties of the two opposing parties
2. The subject matter in dispute
3. The cause of action
4. The relief claimed
Suit of Civil Nature sec 9
Sec 9- jurisdiction of civil court, before limitation period, pecuniary, territorial
Kanji v Bhika – caste property, civil nature
Shanmugham v T M Chidhambharathanu Mudaliar – prasadam, not civil
Achuthan Nair v Narayanan Nair – boundary , civil case
Shakarappa v Basamma – second marriage , injunction by hindu wife, civil
State of Kerala v Union India – railway damage, art 131(a) rejected if legal right
Saina v Konderi – can suit, municipal building violations
Suits expressly Barred- Dy Sup of Police v Nabeesa sec 84 to establish his title
Stay of Suit- Res Sub judice
Sec 10, Res – Subjudice,” Things or matter under consideration”- pending before a competent court,
second of same question is barred
Mathew & Anr v Sony Cyriac & Others – cheque bounce case and recovery, criminal and civil will
stay.
State of Rajasthan v kalyana Sundaram ltd – civil and negotiable ,criminal exist
Res Judicata- Sec 11 –
Estoppel by Record – “already decided”, Sec 11- Fresh suit same is barred
Daryo v State of UP
Styadhayan v Deorajin Debi - finality to judicial decision
State of maharshtra v national construction – technical round is not considered as res judicata
Susheela v Kuttikrishnan – compromise does not operate res judicata
Constructive Res Judicata - need to mention all facts in the initial case, cannot use that for
subsequent suit.
Horo v Jahan Ara
State of UP v Nawab Hussain- disciplinary and mala fied, action then art 311
Place of Suing -sec 15 to 20
Kerala civil courts act 1957
Sec 15 -Court in which suit to be institute, shall be institute in the lowest court

Jurisdiction of Civil court -Sec 9

Jurisdiction
1. Territorial Jurisdiction -sec 16 to 20
2. Pecuniary Jurisdiction – Consumer forum District- 500,000/- sec 15
3. Jurisdiction over the subject- recover money, partition , injunction, specific performance,
Administrative tribunal
4. Original and Appellate Jurisdiction
 Sec 15-Suit institute in court of Lowest grade ( Pecuniary)
Munsiff’s court < 10 Lakh
Bishop Dr mathews Mar Savarios v Thankachan
Sec -16 where subject matter is Situate ( Territorial ) ,for Immovable property
Sec -17- Suit for immovable situate with the jurisdiction of different court
Sec -18- Place of institution of suit where Local jurisdiction is uncertain
Sec -19-compensation for wrongs to the person or Movable
Sec 20- where defendant resides, or cause of action arises
Cause of Action – Plaintiff’s facts – every facts should be mentioned initially
Shipping Corp v Associate Corp
Consent of the parties and Jurisdiction of court sec 20– can select one jurisdiction
Hakam Singh v Gammon India – any two court which have jurisdiction
Kitex v Sureksha – cannot take a court which don’t have jurisdiction
Objection to Jurisdiction- Sec 21 - cannot argue jurisdiction later
Bar on Suit to set aside decree- Sec 21A- mentioning invalid territorial, Jurisdiction, no bar for
pecuniary
Transfer Of Suits – sec 22 to 25
Transfer of Application by Defendant – sec 22 and 23
General Power of Transfer and withdrawal- sec 24
Power of SC to transfer suit . Appeal etc – Sec 25
Different Stages of Suit
Essentials of Suit
1. Two parties
2. Subject matter in dispute
3. Cause of action
4. Relief claimed
Stages of Suit
1 Institution of suit sec 26 7 Arguments
2 Issue Summons 8 Judgement
3 Written statement – reply 9 Decree
4 Discovery 10 Execution
5 First hearing and Framing of issue
6 Evidence
Institution of Suit – Plaint – Sec 26 – Order IV – Rule 1, Register Rule 2
Particulars contained in Plaint – Order VII – Rule 1
Some general Principle of Drafting Plaint
Amount Sued mentioned in plaint - Order VII – Rule 2

Sita Sidramappa v Rajacherry – mesne profit, not in appeal if its not mentioned first
Ammukutty Amma v Viswanathan Iyer- mesne profit higher rate can awarded from
George v Koshy – Limitation claimed , should claim reason in plaint
United India Insurance v Andrew Viveral – list full details of fraud not vague list
Relinquishes claim cannot be sued later – Order II Rule 2(2)
Immovable Plaint should mention boundaries – Order VII Rule 3
Return of Plaint Order VII Rule 10
10-A- Power of court to fix date of appearance where plaint to file after return
10-B- Power to transfer suit to proper court
Raghavan v Soloman-after limitation period, Not Fatal
Rejection of Plaint Order VII Rule 11
1. No cause of action
2. Relief claimed undervalued, within time not fixed
3. Insufficient stamped paper, within time not fixed
4. Barred by any law
5. No duplicate filed
 6. Does not comply rule 9- many copies
Delhi Wakf Board v Jagadheesh Kumar Narang- fresh suit not barred if,rejected by Rule 11
Procedure on Rejection Plaint – Order VII Rule 12
Rejection doesn’t Preclude presentation of fresh plaint – Order VII Rule 13
Parties of Suit – Order I
a. Joinder of Parties
i. Joinder parties Rule 1
ii. Joinder Defendants Rule 3
b. Necessary and Proper Parties
Kasturi v Iyyamperumal – cannot decide if no necessary part
c. Non-Joinder and Misjoinder of parties Rule 9
Necessary or proper may not joined as a party of suit- Non Joinder
Neither Necessary nor proper party joined as- Mis joinder
Improperly joined Struck down or add parties by court – Rule 10
Amit Kumar Shaw v Farida Khatoon – at any time or proceedings , strike out
Multifariousness – Misjoinder of parties or cause of action
Representative Suit Order I Rule 8
Conditions
1. Numerous persons
2. Same Interest
3. Permission or Direction by court
4. Notice
Issue Summons- Sec 27 Order V Rule 1 – Substituted Service
Written Statement – 30 days, after consideration 90 days
1. Personal or Direct Service
2. Substituted Service ( Affixture and Advertisement) Order V Rule 20
3. Service by Post 19-A
Service in particular cases Rule 21- 29
Substitution of letter of summons Rule 30
Written Statement – Order VIII
Kailash v Nanhku – beyond 90 days valid reason
Rachappa V Gurusidappa – 1989- replay to plaint by defendant – pleading of def..
Subsequent pleading of plaint- replication- Dutta v Savitri AIR 1977
Defences which Defendant can take
1. Admission and Denials
2. Dilatory Pleas or Pleas - court fee not paid
3. Objection in point of law
4. Special defences (confession and avoidance)
Rule 3- Limitation, Estoppel, payment, Res judicata, justification etc
5. Set-off
Plea of Set OFF – Order VIII – Rule 6
Two Kinds
1. Legal Setoff
2. Equitable Setoff
Legal Set Off Equitable Set Off
Sum must be ascertained. Sum need not be ascertained.
Claim need not originate from the
Claim must origination from the same transaction.
same transaction.
Legal set off can be claimed as a
right by the defendant and the Equitable set off cannot be claimed as a right but
court is bound to adjudicate upon by court’s discretion.
the claim.
Court fee must be paid on set off
No court fee is required.
amount.
 The amount may be time barred. However, if the
The amount must not be time defendant’s claim is time barred, he can claim
barred. only as much amount as is given in the plaintiff’s
claim.
Order VIII, Rule 6 Rule-19 (3) of Order XX
Counter Claim – Cross Suit- Order VIII 6A-6G
Defendant-> Counter claim -> Plaint
Plaintiff ->Written Statement -> Replication ( answer to counter claim)

Legal Set Off Counter Claim

Order VII Rule 6 6-A to 6-G of Order-8
Set-off is a statutory defence Counter-claim is substantially a cross-action.
Defendant demands in a plaintiff’s suit In a counter-claim, the defendant demands for a
an amount below or up to the suit large amount. The claim for excess amount is really
claim. a counter-claim.
Set-off must arise out of the same
need not arise out of the same transaction.
transaction.
The amount must be recoverable at The amount must be recoverable at the date of the
the date of the suit. written statement.
Ground of defence to the plaintiff’s
Counter-claim is a weapon of offence
action
Set-off is a right to adjust the claim of Claim made by the defendant in excess of the right
the plaintiff claimed by the plaintiff.
Set-off must be for an ascertained A Counter-claim can be made for an ascertained
sum. sum, or even for an unascertained sum.
General Rules of Pleading – Order VI
Haris v Mallan – mention undue influence
Amendment Pleading – Order VI Rule 17
1. Real question of controversy
2. Injustice to other side
Haridas v Pillai – Injustice to another

Sarai Rani v Sudarshan – Leave to amend at any time

Pavithran v Narayanan – admission withdrawn by way of amending
BK Narayanan Pillai v Parameswaran Pillai – allow if necessary for determination of real
controversies
Jayanti Roy v Dass Estate – not unduly delayed should be allowed
Failure to Amend after order -Order VI Rule 18
Gomathi Amma v Meenakshi Amma – along with affidavit allowed, 14 days
Appearance and Non Appearance of parties – Order IX
Rule 1: need to attend on fixed date
Rule 2: Summons not server because of Plaintiff default – dismiss
Rule 3: If neither Plaintiff or defendant appear, dismiss
Rule 4: Fresh suit is not barred for 2 and 3.
Rule 5:Summons returned, plaintiff application to re-issue within 7 , or dismissed
Rule 6:summon served, not attend , ex parte decree favour of plaintiff
Haridas v Madhavi Amma- court need t check absent ,at least one proof
Rule 7: adjourned the hearing of suit ex parte, and defendant reach and claim good cause of absent,
then pay the cost or otherwise heard by court
Rule 8: defendant appears and plaintiff not appeared, then dismiss, if defendant admit then plaintiff
claim court will pass decree
Thankappan v Achuthan
Rule 9: dismiss by rule 8 , fresh suit, and notice to parties, if good cause of non appearance
Aboo v Ahammed – straight manner, no prudish
 Vareed Jacob v Sosamma- need to check all injection, IA attachment etc before order of
dismissal set aside
Remedies in case of Ex Parte Decree
1. To set aside decree- Rule 13
Kewal Ran v Smt Ranlubai – two defendant, one served, so other ex parte decree,plea set
aside not maintainable , liable
GO Srivastava v R K Raizada – medical private certificate
2. Appeal against such decree Sec 96(2)
3. Apply for Review Order 47, Rule 1
4. Set aside Ex Parte decree on the ground of fraud ( suit)
Discovery and Inspection – Order 11
Right of party to the suit to Compel other party to disclose all documents
• Discovery of interrogation
• Discovery of Documents
Framing of Issue – Order 14
• Issue of facts
• Issue of law
Summoning and Attendance of Witness- Order 16
Hearing of Suit-- Order 18
Judgement - Sec 2(9)
Balraj Taneza v Sunil mandan – process of reasoning court came into conclusion
Judgement can be reviews by review application sec 114 – order 47
Decree – Sec 2(2) – within 15 days of the Judgment – Partly preliminary and partly final.
Derived -> Decretum- Latin Word .
Kind of Decree
1. Preliminary
2. Final
3. Partly Preliminary and Partly Final

Essential Elements of Decree AFSD CPRR AD

1. Adjudication – Shreedharan v Bhaskaran – compromise petition
2. Formal expression
3. Suit – Hansraj v Dehradun Mussoorie Electric Tramways – define suit
4. Determine rights of parties and controversy
5. Conclusive nature- interlocutory is not a Decree – it must be final
6. Preliminary ( many) or final decree ( only one)
Phool chand v Gopal lal – more than one preliminary decree
Raghavan Pillai v Dhamodharan nair- if dispose it final otherwise it preliminary
Partly Final and Partly Preliminary Decree
Lucky Kochuivareed v Mariappa Goundar- possession of property ( Final)and enquiry mesne profit (
partial)
7. Rejection of plaint shall be deemed to be decree
8. Restitution – sec 144 – received property erroneous decision can retrieve
9. Appealable orders – sec 104 – Order 43- Rule 1
10. Dismissal for default- not a decree
Order - Sec 2(14)
Decree Order
Only presentation of suit presentation of suit or proceedings
can be preliminary or final No preliminary order
Appealable Not appealable ( appealable order sec 104)
second appeal from decree No second
Adjudication right of parties
conclusively May or may not determine such rights
suit only on final decree suit many orders
Cost – 35, Compensatory Cost -35A, Delay Cost 35B

Execution of Decrees and Orders – 36 to 74 - Order 21

Order 21→ Total 106 Section and longest of all orders in code
Court which decree may be executed- Sec 38
Transfer of Decree for Execution – 39
Power of Execution Court – 42 - OBQL DVE AP
1. Cannot execute decree- property outside jurisdiction
2. Cannot go behind decree
State of Punjab v Krishna Dayal Sharma
3. No power to question correctness of decree
SBI v Indexport Registered
4. Lack of jurisdiction the decree passed is nullity
Surinder v Union of India
5. Executable will not become inexecutable by death of judgement debtor
6. Vague then executing court can ascertain its meaning
Topanmal v Kundomal
7. Executing court can go in to the question of the executability
Bal Dosaba v Naturadas
8. Inexecutable can be executed by amendments
Dularey v Third Add Dist Judg
9. Court executing decree transferred to another has same power
Mahadeo Prasad v Ram Lochan
Application for Execution
Decree holder, legal rep, claiming decree holder
Contents of Application
Signed, attached property details, boundaries, growing corps harvest time, inventory property
Limitation
12 Year for Decree, mandatory Injunction 3 Years
Different Modes of Execution- DRAS
1. Delivery of property
a. Movable – Sec 51 (a), Order XXI- Rule 31
b. Immovable - Order XXI- Rule 35 and 336
2. Appointment of Receiver - Sec 51 (d)
3. Arrest and Detention Sec 55 to 59 , Rule 37 to 41
Issue of Notice – Jogendra v Ramanathan
Reject application for arrest – Jolly George V v Bank of Cochin
Execution of Oral Application – Arrest- Rule 11
Who cannot be arrested – Sec 56, 135, 135 A
Period of Detention – Sec 58
Rs < 2000 No detention, Rs < 5000 Six week, Rs >5000 Not exceeds three months
Release of Judgement Debtor – Sec 58 to 59
4. Attachment of Property Sec 60 to 64 – Rule 41 to 59
Property which can be attached – Sec 60 – Movable and Immovable
Appsaheb v Balachander
Property Cannot be Attached Sec 60 & 61 – Ornaments religious, cooking vessels.
Thankappan v CSB – daily labour carpenter
Chrisostom v Federal Bank – Gratuity cannot
Canara Bank v Palani – LIC as Fixed Deposit can be attached
5. Sale of Property - Sec 65 to 67 and order XXI Rule 64-73
Proclamation of Sale – Rule 66 to 67
Venkatachalam v Zackaria – sale without publication
Time of Sale Sec 68: 15 days Movable, 7 days Immovable
Adjournment of Sale – Sec 69 – Time and date fix by court
 Setting Aside of Sale
1. On Deposit ( Rule 89)- deposit of amount
Thirbhovandas v Ratilal – last chance for Judgement debtor to pay back
Limitation – 60 days from date of sale, Notice should be issued, Appeal for set aside
granted.
2. For Irregularity of Fraud Rule 90
Lakshmi Ratan Eng Work v Ass Comm
a. Material Irregularity
b. Substantial injury has been caused
3. Judgement debtor has no Saleable Interest- Rule 91
Confirmation of Sale – Janaki Raj v Guridial Singh
Certification of Sale by court
Precept – Sec 46
Order or Direction given by court which passed the decree to attach the any property belonging to
Judgement debtor which situated within its Jurisdiction
Radha Shyam v Devandra – interim attachment for security
Katragadda Ramayya v Kolli Nageswararao - attach property of JD of other court Jurisdiction
Mela Mal v Bishan Das – cannot apply before judgement – Order 38 Rule 5
Garnishee order – Order 21 – Rule 46 A to 46 I
Derived from Latin – garnire – to ward
To recover money from third person – debtor’s debtor.
Commissions – Incidental Proceedings – Part III – Sec 75 to 78 Order 26 - WIAPSiSM
1. Commission to examine witness – Order 26 Rule 1-8
Paramahamsa Ramakrishna Maunibaba v Trimbak Rajaram
Vinayakak Trading v Sham Sunder & Co
2. For Local Investigation – Rule 9-10
Debendranath v Natha Bhuyian – evidence from spot
3. To Examine Accounts – Rule 11-12
4. To make partition- Rule 13-14
5. For Scientific Investigation – Rule 10A
6. Sale of Movable property – Rule 10C
7. Performance of Ministerial Act - Rule 10 B
Supplemental Proceedings – Inter Locutory Application-Part IV – Sec 94 to 95 – For Prevent end of Justice
being defeated
1. Warrant of arrest
2. Furnish Security and Attachment
3. Temporary Injunction
4. Appoint Receiver
5. Interlocutory order
Arrest and Attachment Before Judgement – Sec 94 – Order 38
1. Arrest before judgement – sec Rule 1 to 4
2. Attachment Before Judgement – Rule 5 to 13
Temporary Injunction – Sec 94- Order 39 Rule 1-5
1. Temporary - maintain Status Quo
2. Permanent ( Spec Reli Act 1963 sec 30 to 42)- after hearing both parties
Granting – Court Satisfied
1. Prima facie case
2. Irreparable Injury
3. Balance of Convenience
Receiver – Order 94 – Sec 41
Interlocutory order – Sec 94 – Order 39 Rule 6 to 10
Withdrawal Suit – Order 23 Rule 1- and 2
Ramamurthi v Rajeswararao
1. Formal Defect
2. Sufficient Ground – ejusdem generis
Compromise of Suit – Order 23- Rule 3, 3A, SB
KK Chari v Sheshadri
Representative Suit – Rule 3B
Compromise Decree and Res Judicata
Subha Rao v Jaganadha Rao - Not decree by court so not operate Res Judicata
Susheela v Kutti Krishnan – Not decree by court so not operate Res Judicata
Sreedharan v Bhaskaran – Adjudicatory power applied
Death of Party -Abatement of Suit ( Order 22- Rule 1 to 6)
Madan Naik v Hansubala Devi
Silla Singh v Chandgi
Banco National Ultramarini v Nalini – legal representative
Suits in Particular cases
Suit by or Against Government – Sec 79 to 82 – order 27
Bihari Chowdhary v State of Bihar
JS Ajith Kumar v KS Suresh Kumar
Suit by or Against Minor or Lunatic - Order 32
Rule 3A- no decree against minor
Suits by Indigent Person – Forma Pauper Suits – Order 33
Mathew v State of Kerala
Mechnantile Credit Corp v Sathyan
Interpleader Suit – Sec 88 – Order 35 – Dispute between defendants
Summary procedure or Summary Suits – Order 37
• Suit upon bill of exchange
• Suit in which plaintiff seeks only recover a debt or liquidated demand in money payable
Suit to Abate Public Nuisances – Sec 91

Appeal, References, Review and Revision

Section Order
Appeals 96-112 41 to 45
First Appeal 96 -99A , 107 41
Second Appeal 100-103 , 108 42
Appeal from Orders 104 , 108 43
Appeal to SC 109 45
Appeal Indigent Person 109 45

Reference 113 46
Review 114 47
Revision 115
First Appeal ( Appeal from Original Decree)
Lakshmiratan Eng Work v Asst comm sales tax – Judicial examination of decision of inferior
court by higher court
Shanker v Krishnaji – lower court decision unsound
Power of Appellate court – Order 41 – Rule 23 to 29, 33
1. Finale determination
2. Remand – send back – Rama Rao v Vimala Kumari
3. Frame Issue and refer them for trial
4. Additional evidence – Soonda ram v Rameshwarlal
5. Modification of decree Order 41 Rule 33
6. Other Power
Reference
Geevarghese v Abhraham – HC cannot refer Subordinate Court
Review - look once again – judicial re-examination by same judge
 Bharat Singh v Sheo pershad
Sharma v Sharma
• Discovery of evidence
Administrative General WB v Perunad
• Error apparent on Record
Hari Vishnu Kamath v Ahmed Ishaque
• Other sufficient reason
Sharma v Sharma
Revision
Vidya Vati v Devi Das – no appeal in HC
Right to Lodge Caveat – Sec 148A Order
Person who Lodged caveat – caveator
It will prevent a person from obtaining Ex Parte Decree

Inherent Power of Court – Sec 151

Ram Chand v Knahayalal
Manohar lala v Seth Harilal
Mesne profit - Sec 2(12)
Condition to claim mesne profit
• Defendant should be in wrongful possession of property
• Plaintiff should be entitled to actual possession
Wrongful possession is liable for mesne profit
Lucky Kochuivareed v Mariappa Goundar – compensate the person who has kept out of possession
Ammukutty Amma v Viswaanatha Iyer – lease is invalid lessee is bound to account for mesne profit
Mahant Narayanan Dasjee v Thirupathi Devasthanam – interest for mesne profit is right of plaintiff
Purushothaman v Thulasi and others- possession of property is not, so no mesne profit
Legal Representative
Sec 2(11)
• Intermeddles with the estate of the deceased person
• Estate devolves on the death of the party so suing or sued
Chiranjilal Shrilal G v Jasit Singh – executor of a will of deceased person is LR
Mercy v Aisha Ummal – legal heir may be legal representative
Shankarappa v Daniel- legatee of a part of estate is a legal representative, not always

LIMITATION ACT 1963

Limitation Act contains - 32 Sections – One schedule ( 137 Article)

“Law will come to the assistance of the Vigilant and not of the sleepy”
PNB v Surendra Prasad Sinha – doesn’t destroy the right of parties, Fixed deposit taken
1-113 Period of limitation of Institution of different suit
114-117 Period of limitation of preferring appeal
117-137 Period of limitation for making application
Period of Limitation and Prescribed Period Sec 2
Limitation -> period of limitation by schedule to the Act
Prescribed-> period of limitation by computed with provision of Act
Bar of Limitation – Sec 3
Rama Shankar v Shyamlal – SC , expiry limitation period, dismissed
Kerala State Bamboo Corp v P K Ramesen Nair
Expiry of Prescribed period when court closed – Sec 4
Kurian E kalathi v KSEB Tvpm- court right to dismiss, not set off as a defence
Condition of Delay – Sec 5- Doctrine of Sufficient Cause
Extension of period if sufficient cause or reason
State WB v Administrator
 Kumari Amma v kavukutty Amma – erroneous, sickness, distance from court
1. Illness of party
Gauri Shankar v Kashinath
2. Imprisonment
Collector of Balasore v Ashutosh
3. Mistake of the lawyer
South Indian Ltd v Ouseph
Rafiq v Munshilal
Doctrine of Legal Disability - Sec 6
• Minor
• Insane Person
• Idiots
Usha Rani v New premier Insurance – two child and mother
Continuous Running Time- Sec 9-- Once time has begun to run no subsequent disability stop it
Disability – Minority, idiocy, insanity
Inability- lack of Money , Illness
Computation Period of Limitation – Sec 12 – 24
1. Exclusion of Time in legal proceedings – sec 12
2. Exclusion of time in case of Leave to sue or appeal as pauper is applied and rejected – Sec 13
3. Exclusion of time of proceedings Bonafide in court without jurisdiction – Sec 14
4. Exclusion of Time in certain other cases – Sec 15 – injunction etc
5. Effect of Death before accrual of right to sue – Sec 16
6. Effect of Fraud and Mistake – Sec -17
Karthiyani Amma v Sudasundaram
7. Effect of Acknowledgement in Writing - Sec 17
Mannadiar v Tulasi Ammal
Savithri Kunjam v Narayanan
8. Effect of payment on Account of Debt or of Interest on Legacy Sec – 19
9. Effect of substituting in Adding New plaintiff or defendant
James Machintosh co v Sree Yammuna
Acquisition of Easement by prescription- Sec 25
Extinguishment of Right of Property by Adverse Possession – sec 27
Nec vi Nec clam nec precario
Ramdas v Anna
Kodiayn v Karambi