Suits by or Against Government (SN 79 To SN 82), Order 27: Code of Civil Procedure (CPC) : Part 2

12/2/2020 CPC-2 - 3 Year LLB Notes: Excellency Club, GLCE Students Union 2018-19
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CPC-2
CODE OF CIVIL PROCEDURE (CPC): PART 2

compiled by Nayab Naseer
Main page A project of Excellency Club, SFI & Students Union 2018-19, Govt. Law College, Ernakulam
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Search SUITS BY OR AGAINST GOVERNMENT (Sn 79 to Sn 82), ORDER 27
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In ordinary suits, ie, suits between individuals and individuals, notice need not be given to the defendant by the plaintiff before filing a suit.
However, to file a civil suit against the government, two months’ notice has to be given. This requirement is as per public policy, since public
new page money is involved.
When there is an urgent (eg: unauthorized construction) suit may be filed without adhering to the two month notice limit, but no relief may be
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granted without hearing the government side of the story. Not even interim orders may be passed without hearing the government side.
glcekm2018
asmiaami To whom notice is to be given:
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page If suit is against Central Government: Notice to be served to the Secretary of the department
If suit is against State government: notice to be served to Secretary to State or District Collector
If suit is against railways: notice to be served to general Manager
If suit is against the state of Jammu & Kashmir: Notice to be served to the Chef Secretary
Where a suit is instituted against any public official: Notice to such public official.
Content of the notice:
1. Name, description and place of residence of the plaintiff

2. Cause of action
3. Relief sought
Provisions under Order 27
1. The government pleader shall be the agent of the government for receiving all court processes. (Rule 4)
2. When fixing the date for the hearing, the court must have due to regard to the communications made to the government, issue of
instructions to the government pleader to appear, etc. (Rule 5) Such time limit may be extended by the court but not beyond 2 months in
aggregate.
3. An extension may also be granted where a public official is a defendant and he takes leave from the court to make a reference to the
government before he answers the allegations in the plaint. (Rule 7).
4. The court also has the duty to assist the parties in arriving at a settlement where it is of the opinion that such settlement is possible. It may
also grant an adjournment for such purpose. (Rule 5-B)
CPC-2 Notes: A project of EXCELLENCY CLUB, SFI & STUDENTS UNION 2018-19, GOVT LAW COLLEGE, EKM(KOCHI)
SUITS BY OR AGAINST MINOR AND PERSONS OF UNSOUND MIND

Since a Minor is not capable of entering into a contract, every suit instituted by a minor will be filed in his name by his "next Friend", i.e. any
other person who has attained majority in some way.
Such "Next Friend" should be closely related to the minor to ascertain the interests of the minor. Some instances of ”next friend” are father,
mother, brother, sister and guardian. The “next friend” does not become a party to the suit but merely represents minor's interest.
Any person can be appointed, as the "Next Friend" as long as he
of sound mind
has attained majority
has no interests adverse to that of the minor's
is not defendant or plaintiff in the suit.
If no one is willing to be a “next friend,” and there is no guardian appointed by a competent Authority, the Court may appoint any of its
officers as a guardian to the suit.
The court may direct the costs incurred by such officer in his capacity as guardian to be borne by :
Any of / or all parties to the suit, or
*Out of property of the minor, or
Out of Any fund in the court in which minor, is interested.
llb3.wikidot.com/wiki:cpc-2 1/16
The courts can order the next friend to give security for payment of all the costs incurred or likely to be incurred by the defendant.
A "Next Friend" is not allowed to enter into any agreement/ compromise on the minor's behalf without the permission of the court
A "next friend" may retire but not before, he first recommends another person to take his place and gives security for all the costs that
have already been incurred in the suit.
Procedure
A minor may bind himself when there is something concerning his benefit.
Where a decree is passed against a minor, it shall be void unless there is a guardian or next friend of such minor. Similar is the case of a
lunatic.
Where a suit is instituted by a minor or on behalf of a minor without a next friend, the defendant may apply to the court to have the plaint
removed from the file. (rule 2)
The person who had presented the plaint shall be notified about the application and he shall have the right to object to the same.
After hearing the objections, the court shall make an order on the matter.
On the minor attaining majority the minor plaintiff has the option to proceed with the suit or opt out.
In case he opts to proceed with the suit, he will have to make an application for discharge of "Next Friend", and permission to proceed on
own name.
In case he opts out, he can apply for an order to dismiss the suit / application on making payment of costs incurred by the opposite party or
which has been paid by his next friend.
SUIT BY INDIGENT PERSONS (Order 33)

Indigent persons are persons too poor to pay court fees.
The Court Fees Act makes it mandatory to pay the prescribed court fees at the time of filing a suit. Order 33 of CPC offers an exemption,
allowing persons who are too poor to pay court fees to file suits “in forma pauperis,” i.e without paying court fees at the first instance.
The object and purpose of Order 33 and Order 44 of the Code of Civil Procedure are to enable a person, who is ridden by poverty, or not
possessed of sufficient means to pay court fee, to seek justice.
In A.A. Haja Muniuddin v. Indian Railways, (1992) the Court observed: Access to justice cannot be denied to an individual merely because
he does not have the means to pay the prescribed fee."
Who is an indigent person?

A person is indigent if the payment of fees would deprive one of basic living expenses, or if the person is in a state of impoverishment that
substantially and effectively impairs or prevents the pursuit of a court remedy.
The court considers two specific yardsticks to determine if a person is indigent:

1. He is not in sufficient means to pay the prescribed court fees
2. Where no court fees is prescribed, he does not have property worth Rs 1000/-
These are excluding property exempt from attachment of decree and the subject matter of suit
Property acquired after getting permission to sue but before a decision is made by court is also included to determine the ”worth” of a person
The burden of establishing indigence is on the person claiming indigent status.
The expression "sufficient means" means the ability or capacity of a person in the ordinary course to raise money by available lawful means
to pay court fee. The court considers the following factors:
1. The applicant’s employment status and income, including income from government sources such as social security and unemployment
benefits
2. The applicant’s ownership of any unencumbered assets, including real or personal property and deposits
3. The applicant’s total indebtedness and any financial assistance received from family or close friends.
It is not necessary the person claiming indigent status should be a destitute. If payment of court fees and costs would put undue hardship to
him or impair his ability to procure basic necessities, that is enough.
Application
An indigent person should make an application to sue as an indigent person. Every application to sue as an indigent person should contain
the same particulars as that of a plaint. It must also contain. In addition, the application should also contain
1. Particulars of the plaint
2. Schedule of all movable and immovable property belonging to the applicant
3. Signature and verification declaration as per Order 6 Rule 14/15
The application should be made in person, unless personal appearance is exempted from court. When there are two or more plaintiffs,
anyone can make a personal appearance
The application to sue as indigent person may be rejected at the first instance itself, if:
1. The application is not framed or presented in the prescribed manner
2. The applicant is not an indigent person
3. Where there is no cause of action
4. Where the suit is barred by law
5. Where another person has agreed to finance the cost of litigation
6. The applicant had disposed off property two month before the presentation of application, with the intention to present the plaint as an
indigent person
7. Applicant entered into an agreement with regards to subject matter of the suit, under which another person has acquired interest
Inquiry
Every question as to whether or not a person is an indigent person shall be determined by the chief ministerial officer of the court or in a
manner in which the court directs. The court may either adopt the report of the officer or may make a separate enquiry.
1. The Chief Magisterial officer of the court makes an enquiry to ascertain the veracity of the application.
2. The court may even issue commissions for examination of the applicant where he is exempted from appearance and the application is
presented by the agent.
3. At the hearing, the court shall examine the parties as well as their witnesses.
4. The Court issues notice to opposite party and Government pleader, and fix a day for adducing evidence as to the applicant’s claim of
being an indigent person. At least 10 days notice must be given to the government pleader and the opposite party
5. On the day fixed, the court shall examine the evidence and witness produced by either party, and approves or disapproves the application
to sue as an indigent person
6. The parties may also put forth any argument as regards the application or the evidence adduced.
7. No fresh enquiry is required in case of appeals, if the indigent person files an affidavit stating he continues to be an indigent person.
Approval / Rejection
When an application to sue as indigent person is granted, the application shall be deemed to be a pliant and the case shall proceed in an
ordinary manner
Court may assign a pleader to the indigent person from the free legal aid scheme of state or central government, if he is not represented by
a pleader
If permission is rejected to sue as an indigent person, the applicant receives time to pay court fees and sue the normal way
An order rejecting application to sue as indigent person is a bar on future application to sue as indigent person in similar case.
The order rejecting application to sue as indigent person is appealable
Mathai v Antony: Court opined access to justics cannot be denied to an individual merely because he doesnt have the means to pay the
prescribed fees. The right to sue "infroma pauperis" is however restricted to indingent persons. The court may allow a person to sue as an
indigent person considering factors such as
employment status
total income including retirement benefits
financial assistance received from family members
Revocation
The court may revoke permission granted to plaintiff to sue as indigent person at any time, if:
1. He is found guilty of vexatious or improper conduct in the course of his suit
2. His means are such he is no longer an indigent person
3. He enters into an agreement with another person to obtain interest in subject matter of the suit
4. The defendant or government pleader has to make an application to revoke permission to sue as indigent person.
Who foots the bill?

The state has the right to court fees, and as such is deemed to be a party to a suit
Order 33 only makes a provision for the deferred payment of the court fees
If the plaintiff ultimately succeeds in the suit, the court would calculate the amount of court fee which would have been paid by the plaintiff if
he had not been permitted to sue as an indigent person and that amount would be recoverable by the State from any party ordered by the
decree to pay the same. The state has first charge on the costs.
Where the plaintiff

(a) fails in the suit or
(b) the permission granted to him to sue as an indigent person is withdrawn or
(c) where the suit is withdrawn or dismissed because the summons on the defendant is not served properly due to the failure of the plaintiff
to pay court fees or postal charges or
(d) the plaintiff does not appear at the time of hearing:
the court shall order the plaintiff or his co-plaintiff to pay the court fees which he would have had to pay had he not been an indigent person.
(rule 11)
When indigent person becomes liable to pay court fees, he may plead set-off with any counter-claim
INTERPLEADER SUIT
What is Interpleader Suit? (Sn 88, Order 35)
“Interplead” =litigate with each other to settle point concerning a third party.
Interpleader suit is a civil procedure that allows a plaintiff or a defendant to initiate a lawsuit in order to compel two or more other parties to
litigate a dispute. An interpleader action originates when the plaintiff holds money/ debt/ property on behalf of another, but does not know to
whom the property should be transferred.
The real dispute in an interpleader suit is not between the plaintiff and the defendant of the specific suit, but between two defendants (who
interplead against each other). The plaintiff in an interpleader suit has no interest other than cost or charges.
Interpleader suit arises when two or more persons claim the same debt/sum of money/property from a person who does not claim any
interest to the same, except charges or costs. The plaintiff calls upon such rival claimants to appear before the court and get their respective
claims decided. The decision of the court indemnifies the plaintiff. It allows the plaintiff to deliver the property/money to the persons whose
claim has been upheld by the court
Conditions to file an interpleader suit

1. There should be a debt / sum of money / property (movable/immovable) in the hands of the plaintiff
2. The sum of money / debt/ property must be in dispute, with two or more persons claiming it adversely against one another
3. There should be more than one defendant
4. The person from whom such debt / money / property is being claimed (plaintiff) should not be claiming interest on the same debt / money /
property, other than charges and cost, and the person must be willing to pay or deliver it to the rightful claimants
5. There should be no suit pending in which the rights of rival claimants can be properly decided or adjudicated.
Examples of interpleader suits

Interpleader suits are commonly used to resolve disputes arising under insurance contracts. Banks also file an interpleader suit against two
claimants of a locker of a deceased person, to recover rent of the locker.
A is in possession of property claimed by both B and C. A is ready to hand over possession to rightful owner, and file an interpleader suit
for this matter
A is in possession of goods as a consignee. A’s only claim is lien on wharfage, demurrage and freight, and not on the actual goods itself.
However, both B and C claim the goods. A files an interpleader suit to identify the rightful owner, to extract charges and hand over goods.
A owes Rs 50,000/- which is claimed by both B and C. A files an interpleader suit making B and C as defendants. A also has option to
deposit the 50,000/- in court and removing his name from suit.
A owes Rs 50,000/- claimed by B and C. A has a secret agreement with B to retain Rs 25,000/- in B wins the suit. Since A has an interest
in the amount, he cannot file an interpleader suit, and if filed, it will be dismissed.
Exemptions:
The following parties cannot file an interpleader suit
An agent cannot file an interpleader suit against his principal

A tenant cannot file an interpleader suit against his landlord compelling them to interplead with persons other than persons claiming
through such principals or landlords
Procedure to file Interpleader Suit (Order 35)

The person filing the interpleader suit files a plaint
Apart from the normal contents of the plaint, it should also contain
A declaration that plaintiff claims no interest in the subject matter of the suit, except charges and costs
Claims have been made by defendant severally
There is no collusion between the plaintiff and any defendants
The court may order defendant to deposit the money or place property under custody of court
Court may, at its discretion, discharge plaintiff from liability, award him costs, and dismiss him from the suit. This is to pare bona-fide plaintiffs
from the travails of a lengthy trial.
The court may also adjudicate the title, or frame issues for further trail
Plaintiff can file an appeal against an order dismissing an interpleader suit

Defendant can file an appeal against the order which adjudicates the claims
ARREST AND ATTACHMENT BEFORE JUDGMENT

Arrest before judgment
Where at any stage of a suit the court is satisfied, by affidavit made by the plaintiff or otherwise, that the defendant, with the intention to
delay or defraud:
Has absconded or left the local limits of the jurisdiction of the court, or
Is about to abscond or leave the local limits of the jurisdiction of the court, or
Has disposed of or removed from the local limits of the jurisdiction of the court his property or any part thereof, or
is about to leave India under circumstances
The court may issue a warrant to arrest the defendant and bring him before the court to show cause why he should not furnish security for
his appearance.
The defendant shall not be arrested if he pays to the officer executing the warrant the sum specified in the warrant (Order XXXVIII, Rule 1)
Where the defendant fails to deposit in court money or other property sufficient to answer the claim against him, the court may commit him to
the civil prison until the decision of the suit or until the decree is satisfied.
The maximum period of such detention is six months (Order XXXVIII, Rule 4).
Arrest before judgment shall be made only if there is reasonable probability that the plaintiff will obstruct or delay the execution of the decree.
The probability has to be decided by the court considering the facts and circumstances of the case.
Attachment before Judgment (Order 38 Rule 5)

An attachment before judgment is to enable the plaintiff to realize the amount of the decree, supposing a decree eventually made, from the
defendant property’
The sole object behind attachment before judgment is to give an assurance to the plaintiff that his decree if made would be satisfied. It is a
sort of a guarantee against decree becoming infructuous for want of property available from which the plaintiff.
Such attachment order is granted if there is a risk of the defendant making away with his property pending suit. Whether such circumstances
exist is a question of fact that must be proved to the satisfaction of the Court.
Order 38, Rule 5 CPC:
If at any stage of the trial the Court is convinced, by affidavit of the plaintiff or otherwise, that the defendant has intent to obstruct or delay the
execution of any decree that may be passed against him,-
(a) is about to dispose of the whole or any part of his property, or
(b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court,
the Court may direct the defendant to
furnish security of any amount or to place at the disposal of the Court property (or part of property) for the same value
appear and show cause why he should not furnish security.
The Court may also in the order direct the conditional attachment of the whole or any portion of the property so specified.
If an order of attachment is made without complying with the above provisions and without giving opportunity for defendant to be heard is
illegal and void.
An attachment before judgment is in the nature of an interlocutory order.
As per Sn 64 of CPC, where an attachment has been made, any private transfer or delivery of the attached property, and any payment to the
judgment debtor of any debt, dividend or other monies contrary to such attachment, shall be void as against all claims enforceable under the
attachment.
If an attachment is ordered before judgment, there is no need to re attach the same property after decree.
Attachment before judgment would come to an end on the suit being dismissed. It will not be revived if the plaintiff makes an appeal.
The attachment may be terminated:

(1) When all the costs and charges of the decretal amount are paid into the Court.
(2) Satisfaction of the decree is otherwise made through the Court or certified to the Court.
(3) The decree is set aside.
(4) On furnishing the required security
(5) By compromise between the parties.
(6) By an express order withdrawing or putting an end to the attachment.
(7) By sale of the attached property in execution of the decree.
(8) By abandonment of the attachment by the decree-holder.
Parur Central Bank Ltd. vs A.C. Chacko (1989): An ‘attachment prior to decree’ is not an attachment for the enforcement of the decree, but it
is a step for preventing the debtor from delaying or obstructing such enforcement when the decree subsequently passed is sought to be
executed
Gurunadha Rao v. Gamini Krishnayya: To be valid an attachment must be specific and clear in its purport.
Raman Tech. & Process Engg. Co. & Anr : SC held power under Order 38 Rule 5 CPC is drastic and extraordinary power. Such power
should not be exercised mechanically or merely for the asking.
DIFFERENCE BETWEEN ‘ATTACHMENT PRIOR TO DECREE’ AND ‘ATTACHMENT AFTER DECREE’:
An attachment after decree is an attachment made for the immediate purpose of arraying the decree into execution, and it includes an
application from the decree holder to have his decree executed.
Attachment prior to decree is a sort of a guarantee against decree becoming infructuous for want of property available from which the plaintiff
can satisfy the decree.
TEMPORARY INJUNCTION (Order 39, Rules 1 to 5)

Injunction = An order from the court whereby a party is required to do, or refrained from doing a particular act. It is a form of remedy available
to any party to a suit.
What is Temporary Injunction?
Temporary injunction is an interim order issued by the court during the pendency of suit proceedings, as ancillary or interim relief, before the
determination final determination of rights and awards.
Temporary injunctions are issued to preserve status-quo. The objective is invariably to preserve the property in dispute until the conflicting
claims of parties are heard and the legal rights established by court.
When is Temporary Injunction Granted?

The court grants temporary injunction when the following instances are proved by affidavit or otherwise (Rule 1 and Rule 2 of Order 39 of
CPC)
1. A property in dispute in a suit is in danger of being wasted , damaged or altered by any party to the suit, or wrongfully sold in execution of
a decree
2. Defendant threatens, or intends to remove or dispose of his property with a view to defrauding his creditors
3. Defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff relating to any property in dispute in the suit;
4. Defendant is about to commit a breach of contract, or other injury of any kind
5. When court deems it necessary in the interest of justice
Granting of temporary injunction is a discretionary power of the court. It is an equitable relief, but cannot be claimed as a matter of right. The
court strike a fine balance between the injury and prejudice caused to plaintiff before granting temporary injunction. Court may also grant
temporary injunction subject to conditions.
Granting or rejecting pleas for injunction IS appealable under Order 43.
In Nawab Mir Barkat Ali vs. Nawab Zulfiquar (1982) the court laid down the following considerations when granting temporary injunction-
The court must be satisfied:
1. The applicant has a prima facie case
2. The plaintiff may suffer from irreparable loss or injury which cannot be adequately compensated by damages if the injunction is not
granted.
3. The balance of convenience is in favour of the applicant – the comparative mischief or inconvenience caused to applicant will be more if
the injunction is not granted.
4. Where a permanent injunction cannot be given the temporary injunction is not allowed.
In Dalpat Kumar v Prahlad Singh (1992), SC held courts should exercise sound judicial discretion to find the substantial mischief or injury
likely to be caused by parties, if injunction is refused, and compare it with the injury caused to other party if injunction is granted.
Some situations where temporary injunctions are usually granted include
Maintain status-quo with regards to ownership or possession of property

Attachment of property
Effecting Recovery of dues
Refraining from making construction
Appointment of receiver or commission
Temporary injunctions are not granted for:
Collection of tax and octroi

Transfer of public officials
Enforcement o contractual rights and obligations
Delaying elections, etc.
Remedy if injunction is granted on insufficient grounds: As pr Sn 95, compensation up to Rs 50,000/- may be allowed. Once remedy under
Sn 95 is claimed, suit for further compensation is barred.
If an injunction is disobeyed by any party, the consequqnces are
civil arrest
attachment of property, which may be sold and proceeds given to affected parties
Dalpat Kumar v Prahlad Singh (1992): SC held temporary injunctions cannot be given against a property owner in favour o a person in lawful
possession of the property
Other facts
Both plaintiff and defendant may apply for an injunction against the other party
An injunction can be issued only against an opposing party, and not against a third party.
An Injunction directed to a corporation is binding on its officers.
Court may impose conditions when granting temporary injunction
Order for injunction may be discharged, varied or set aside by the court, on application made thereto by any party dissatisfied by such
order.
Breach / Quashing Injunction

Intentional disobedience of order of injunction constitutes contempt of court
Penalty for breach of injunction is
arrest and detention in civil prison for max of three months,
attachment of property for maximum of one year, or both
For repeated breach of injunction, the attachment property may be sold and court may award compensation out of the proceeds
If injunction has been obtained on fraudulent grounds, court may order damage up to Rs 50,000/-,
Interim (ex-parte) Injunction v Temporary Injunction

In normal cases, the court shall issue notice to the opposite party before granting injunction (Rule 3). However, at the discretion of the court,
temporary injunction may be granted even “ex parte”, if the court feels the issue is urgent and delay would defeat the purpose of the
injunction. At that stage, the injunction is called interim injunction. Later, when court hears both sides and issues orders the interim injunction
becomes temporary injunction.
In Shiv Kumar v MCD (1993), SC mandated the court to give specific reasons when issuing ex-parte injunctions.
In Morgan Stanley Mutual Fund v Kartik Das (1994), SC indicated the factors which would weigh th court in granting ex-parte inunctions:
1. -Whether irreparable or serious dmage would befall the plaintiff
2. Whether refusal of ex-parte injunction would involve greater injustice than grant of ex-parte injunction
3. Time at which plaintiff had first notice of the act being complained
4. Whether the plaintiff had acquiesced to the act for some time, in which case ex-parte injunction will not be granted
5. Whether application for ex-parte injunction is made in good faith
Temporary Injunction v Permanent Injunction

Temporary Injunction Permanent (Perpetual) Injunction
Restrains a party from doing a specific act, temporarily, until disposal of suit, or
Restrains a party forever from doing an act
until further orders
Granted only at the end of the trial, based on the
Can be granted at any stage of the trial, even based on an affidavit
merits of the case
May be granted ex-parte also Granted only after hearing both parties
Prescribed by Sections 36 to 42 of the Specific Relief
Governed by Sections 94, 95 and Order 39 of CPC
Act
Stay v/s Injunction

INJUNCTION STAY
Stopping arrest or suspension of judicial Restraining any person from doing an action, or making him bound to do a specific
process action
Issued to any party Issued to the court
Effective as soon as it is issued Effective only when order is communicated to the court to which it is issued
EXECUTION : GENERAL PRINCIPLES

Execution is the act of carrying into effect the final judgment of the court.
The decree-holder(s), their legal representatives, or transferees (transferred in assignment by operation of law) can file an application for
execution of the decree against the judgment-debtor, their legal representatives o sureties.
A decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution. (Sn 38)
Territorial jurisdiction is a condition-precedent for court to execute a decree. Lack of jurisdiction nullifies the decree.
A court which passes the decree may transfer execution to another court, either on its own motion, or by application by the decree-holder, in
the following circumstances (Sn 39)
if the person against whom the decree is passed resides or carries on business, or works for gain, within the local limits of the jurisdiction
of such other Court
if such person does not have 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
if the decree directs the sale or delivery of immovable property situate outside the local limits of the jurisdiction of the Court which passed
it
for any other reasons recorded in writing
Where a decree is sent for execution in another State, it shall be sent to such Court and executed in such manner as may be prescribed by
rules in force in that State. 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.
Powers and Limitations of Executing Courts
1. An executing court must execute the decree as it stands, without varying or modifying the terms. It has no power to question the
legality or correctness of the decree
2. When terms of dceree are vague, court can ascertain its precise meaning
3. The executing court can look into the executability of the decree. A decree may become inexecutable due to change in law, and also
vice-versa.
4. The court to which the decree is transferred for execution has the same power as the court which issued the decree
Parbati Devi v Manhandeo Prasad (1979): An valid and executable decree does not become invalid or inexecutable because of death of
decree-holder or judgment-debtor. It can be executed against their legal representatives.
Merla Ramanna v Nallaparaju: Court which passed the decree does not lose jurisdiction by the execution being transferred to another court.
STAY OF EXECUTION
Order XLI Rule 5 deals with stay of proceedings or of execution of a decree or order in case of an appeal.
The executing court may stay the execution if the judgment-debtor makes a application and furnish security.
For stay of execution of decree in both these above mentioned cases, the following must be shown-
That the party asking for stay would suffer substantial loss if such order is not passed.
The application for stay has been made without any unreasonable delay.
Security has been given by the given by the appealant for the cost incurred on appeal and for due performance of such order/decree as
may be binding on him later.
Court can also impose any other condition.
Judgment will not be stayed, if security is not furnished.

An application to restore such appeal even after rejection may be made within a period of 30 days from such rejection.
Granting stay is within the discretionary power of the court,. Court has to ensure decree-holder is not deprived of the fruits of his efforts,
owing to granting of stay.
The court may also stay the execution ex parte pending the hearing of the application for stay.
Stay of order pending suit allow decree-holder and judgment-debtor to adjust claims against each other (cross-claims)
Generally, there shall be no stay on the mere ground that there has been an appeal. The appellate court has to pass a stay order, after
giving sufficient cause for the same.Such decree or order shall be stayed from the date of communication of the order of the appellate court
to the trial court.
MODES OF EXECUTION
The decree may be executed in the following ways
1. by delivery of any property specifically decreed;

2. by attachment and sale or by the sale without attachment of any property;
3. by arrest and detention in prison
4. by appointing a receiver
5. in any such other manner as the nature of the relief granted may require:
Decree-holder has choice to choose any particular mode
P R Sugar Works v Land reforms Commissioner (1969): SC held CPC does not impose an obligation to attach movables or arrest the
judgment-debtor first before attaching immovable property."
Shyam Singh Collector of Harimpur (1933): Simultaneous proceedings for attachment and sale of immovable property was upheld by the
court. This is at the court's discretion, and should be used sparingly.
DELIVERY OF PROPERTY
Decree for any specific movable property may be executed by
1. seizure and delivery of the property

2. arrest and detention of judgment-debtor, to be released on production of property or till max. term of detention allowed
3. attachment and sale of immovable property (Sn 51b)
4. Appointment of receiver
5. Partition of property to satisfy decree
6. by cross-decree and cross-claims: (Rule 18 and 19): If there are decrees against each other, it may be set-off and only the balance, if
any, may be realised through execution.
7. Payment of money
8. Specific performance of contract
9. Injunction (Rule 32) - prohibitive or mandatory permanent injunction
10. Execution of document
11. Endorsement of negotiable instrument
12. Attachment of rent, mesne profit etc
When decree is for joint possession of immovable property, possession is delivered by fixing copy of warrant at a conspicuous place of
property and proclaiming by beat of drums.
Arrest
A judgment-debtor may be arrested in execution of a decree at any hour and on any day, and be brought before the Court. He may be
detained in civil prison.
The arrest shall be subject to the following conditions
1. No dwelling-house shall be entered after sunset and before sunrise :

2. 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
3. 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
4. If the arrest is for 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 release him.
5. The State Government may, by notification in the Official Gazette, desire 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 any procedure as may be prescribed
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. If he wants to do so, he will have one month to comply with formalities.
The Court shall not order the arrest or detention in the civil prison of
1. a woman
2. judicial officers in course of their duty
3. members of legislative bodies
4. judgment-debtors where decretial amount is less than Rs 2000/-
5. Any other class of people notified by state government
Maximum period of detention in civil prison is
Three months - where the decree is for the payment of a sum of money exceeding one thousand rupees
Six weeks - where the decree is for the payment of a sum of money exceeding five hundred rupees
If the amount is paid earlier, he or she shall be released immediately.

If at any time after a warrant for the arrest of a judgment-debtor has been issued the Court may cancel it on the ground of his serious illness.
Judgment-debtor who appears before court and claims his inability to pay may also be released
A judgment-debtor released from detention shall not by reason of his release be discharged from his debt. He shall be liable to be re-
arrested under the decree in execution of which he was detained in the civil prison. However, the period of his detention in the civil prison
shall not in the aggregate exceed that prescribed
Jolly George Varghese v Bank of Cochin (1980): Justice V R Krishna Iyer said to arrest person in civil cases, there should be some element
of bad faith beyond mere indifference to pay. An attitude of refusal verging on dishonesty is required.
ATTACHMENT
The code recognizes the right of the decree-holder to attach the property of the judgement debtor in execution proceeding and lays down the
procedure to effect attachment. Sections 60 to 64 and rules 41 to 57 of Order 21 deals with the subject of attachment of property.
1. Attachment of standing crops, trees and salary (Sn 60-64 and Order XXI, Rules 41-57)
Now in execution of decrees for maintenance only one-third of the salary would be exempt from attachment irrespective of the amount of the
salary.
Attachment of immovable property
Properties that can be attached: Sn 60(1)
All saleable property( movable or immovable) belonging to the judgement-debtor or over which or the portion of which he has a disposing
power which he may exercise for his own benefit may be attached and sold in execution of a decree against him.
This includes
1. Lands, houses or other buildings,

2. Goods,
3. Money, Bank notes, Cheques, Bills of exchange, Hundis, Promissory notes,
4. Government securities, bonds or other securities for money, debts and shares in a corporation.
These are however subject to restrictions. For eg:
1. Sn 44 of Transfer of property Act prevents strangers from acquiring joint possession in a residential house. So such residential house
cannot be attached
2. The quantum of attachment of agricultural product depends upon the quantum of decretal amount (Sn 61).
Property which cannot be attached
Sec. 60(1) (a) to (p) declares that the following properties cannot be attached namely:
1. the necessary wearing-apparel, cooking vessels, beds and bedding of the judgement-debtor, his wife and children
2. personal ornaments as, in accordance with religion usage, cannot be parted with by any women;
3. Tools of artisans, to enable him to earn his livelihood as such (e.g., tools of carpenters, blacksmith, tailors etc.);
4. Houses, sites and other buildings belonging to an agriculturist or a labourer or a domestic servant and occupied by him;
5. Books of account;
6. a mere right to sue for damages;
7. Any right of personal service;
8. Stipends and gratuities allowed to pensioners of the Government;
9. The wages of labourers and domestic servants, whether payable in money or in kind;
10. Salary to the extent of the first four hundred rupees and 2/3 of the remainder in the execution of any decree other than a decree for
maintenance
11. one third of the salary in execution of any decree for maintenance;
12. pay and allowances of persons to whom the Air Force Act, 1950 or the Army Act, 1950 or the Navy Act, 1957
13. Compulsory deposits in Provident Funds Act of 1925
14. all money payable under a policy of insurance on the life of the judgement debtor;
15. the interest of lessee of residential building to which the provisions of law for the time being in force relating to control of rent and
accommodation apply;
16. A right to future maintenance;
17. Any allowance declared by an Indian law to be exempt from liability to attachment or sale in execution of decree;
18. When a movable property is exempt from sale for recovery of land revenue, such property is not liable for attachment and sale under
this section.
Union of India v Jyothi Chit Funds: The list of what can and cannot be attached is a matter of public policy and cannot be waved by the
judgment-debtor.
If two different courts have attached the same property through different decree, then it will be looked, that which court is superior. The value
of the property will determine whether further attachment can be done or not.
Procedure for attachment
1. The first step is to issue a prohibitory order to the judgment debtor and to the public generally.
2. Issue of warrant: The warrant, together with the requisite copies of the prohibitory order shall be delivered to the Nazir who will himself, or
through his subordinates, fix up the copies and proclaim the order, in accordance with the directions given in the warrant.
When the property is land paying revenue to the Government, three copies of the prohibitory order shall be prepared. In the case of other
immovable property, only two copies are necessary.
3 The order, warrant and copies of the prohibitory order is sent to the Collector for execution. The Collector is responsible for executing it in
accordance with the specified legal formalities. he may affix the necessary prohibitory orders, first on the property and then on the Court
house of the Judge issuing the attachment and in his own office. The Collector will return the warrant to the Court concerned when it has
been duly executed, with an endorsement under his signature.
Procedure for attachment and sale, or sale only
A decree may also be executed on the application of the decree-holder by attachment and sale or only sale without attachment of property.
Section 65 to 73 and rules 64 to 94 of Order 21 deals with the subject relating to sale of movable and immovable property.
Proclamation of sale: Rule 66-67:

It is a kind of order or declaration. It operates as a public notice regarding the sale. It’s says that people can participate in auction and sale.
Proclamation can be in writing or by customary mode. It is affixed in a prominent place of the building, and also announcd through beat of
drums.
Contents of proclamation:-
1. Time and place of sale
2. Property to be sold
3. Revenue, if any, assessed upon the property;
4. Encumbrance, if any, to which property is liable;
5. Amount to be recovered;
6. Details relating to property, such as title deed, length etc.
A decree-holder cannot, without the express permission of the court, purchase the property sold in execution of his own decree.
A mortgagee of immovable property cannot, without the leave of the court, purchase the property sold in execution of decree on the
mortgage.
Court may postone the sale to allow judgment-debtor to raise amount by private alienation
Person who purchases have to pay 25% immediately. The deposit is a mandatory condition and sale will be a nullity without it.
The balance amount should be paid wthin 15 days from date of sale. In case of default, the initial deposit is forfeited, and property will be re-
sold
When property under sale is share of an undivided immovable property, the co-owner has a right of pre-emption.
Paruchuru Narasimha Rao v. Nune Pandu Ranga Rao (1994): Immunity from attachment with regard to residential house is not available to
debtor unless he establishes connection between the agricultural operations carried on by him and the house sought to be attached.
Setting aside sale of immovable property (Rules 89-92)
The sale shall be stopped before it is knocked down if the debt and costs are tendered before the officer conducting the sale, or paid to the
court.
Application for setting aside of a completed sale may be made within the period of limitation (60 days from date of purchase) by
depositing the entire amount specified in the proclamation of sale

paying 5% of purchase-money extra to the purchaser
The people entitled to make such an application are
judgment-debtor
co-sharer of the property
member of Hindu Undivided Family
receiver
creditor of judgment-debtor
lessee
mortgagee
person in possession of the property
In case the sale proceedings were illegal, court can intervene suo-motto and set aside the sale, even after explry of limitation period.
Sale may also be set aside for material irregularity of fraud in publishing or coonducting the sale, and applicant has suffered injury as a result
of it (Sn 90).
Material irregularity could mean omission to issue notice, omission to publish sale proclamation, not beating drum, purchasor defaulting on
deposit, not mentioning exact time of sale, omission to mention value of property etc.
Fraud should relate to publishing or conducting the sale. It is enough if the fraud from part of decree-holder is established. It is not essential
auction-purchaser should be part of the fraud.
When no application for setting aside sale is made, the court will confirm the sal and issue a certificate, on which the sale becomes absolute
(Sn 92, 94)
After the auction is complete
PRECEPT (Sn 46)

"Precept” means a command, an order, a writ or a warrant.
A percept is an order or direction given by court which passed the decree to a court which would be competent to execute the decree to
attach any property belonging to the judgement-debtor. It is an interim attachment.
A precept seeks to prevent alienation of property of the judgement-debtor not located within the jurisdiction of the court which passed the
decree so that interest of the decree-holder is safeguarded and protected.
The interim order for attachment is valid for the period of only 2 months. It may be extended in special cases, but a permanent attachment
through precept is illegal.
No attachment under a precept stall continue for more than two months unless the period of attachment is extended by an order of the Court
which passed the decree.
The procedural rules of normal attachment are applicable to precepts also.
GARNISHMENT
The term “garnishee” derives from the French word 'garnir' which means to warn or to prepare.
Garnishment is a court order directing a person to seize the money or property of a third party (usually wages paid by an employer), to
satisfy a debt owed by a debtor to a plaintiff creditor. It is in essence a court order attaching money or goods belonging to a judgment-debtor
in the hands of a third person. The Garnishee is the third party instructed by way of legal notice to surrender money or to settle a debt or
claim.
A common type of garnishment is when an individual owes money but has for a source of income only a salary, the creditor initiating
garnishment proceedings on the employer. If the creditor is successful, the court will order a certain portion of the debtor's salary to be
automatically deducted and sent to the creditor from each paycheck.
In India, the concept of 'Garnishment' has been introduced in Civil Procedure Code by the 1976 amendment, and is now a major remedy
available to the decree-holder.
“Garnishee order” is an order passed by a court ordering a garnishee not to pay money to the judgement-debtor because the latter is
indebted to the garnisher.
Suppose A owes Rs 1000 to B and B owes Rs 1000 to c. By a garnishee order, the court may require A not to pay money owed by him to B,
but instead to pay C, since B owes the said amount to C, who has obtained the order.
The court may order the third-party not to make any payments related to the judgment-debtor until the court authorizes such payment, or the
court may order the garnishee not to deliver the money or property to the judgment-debtor. Under Rule 46A, the courts in India have
discretionary power whether to pass a garnishment order or not. The court may refuse to pass such Order if it is inequitable. Also, if the court
finds there is bonafide dispute against the claim of money or property held with the third-party, it should not take action under the rule.
Conditions
A notice is to be issued to a garnishee before passing the garnishing order (Rule 46A)
The garnishee should be given an opportunity to be heard
If these two essential are not complied with, the order would be null and void.
Garnishee proceedings are the proceedings in rem as well as in personam. It operates on the personam of the garnishee as on the debt.
A notable exception is that cheques cannot be attached under a garnishment order (46A) in CPC. The provisions related to cheques are
covered in Negotiable Instrument Act. Similarly contingent debts can also not be attached under the provisions of Garnishment.
If garnishee does not pay depsite the garnishment order, the court may ask garnishee to comply as if the decree is against him.
DISTRIBUTION OF ASSETS
When proceeds are to be shared by two or more decree-holders, it shall be distributed rateably.
To claim rateability, application should have been made prior to the court receiving property from the judgment-debtor
The following assets are eligible for reateable distribution
1. Sale proceeds from auction-sale

2. Sale proceeds in hand of decree-holder(s)
3. Deposits made by a defaulting purchaser
4. Salary of government servants
5. Money deposits as surety
The following assets are NOT eligible for rateable distribution
1. earnest money deposit

2. money paid for removal of attachment
3. money paid privately by judgment-debtor to decree-holder
4. money paid as surety o security
5. Money paid for a specific purpose, such as to avoid arrest
Government debts have priority over private debts (Sn 73)
APPEAL
“Appeal” is an application or petition to the higher Court for reconsideration of the decision of appeal lower court. It is continuation of the suit.
In Dayawati v Indrajith (1966), the SC defined appeal as "right of entering a superior court and invoking its aid to redress the error of the
court below."
An appeal is appeal creature of statute and right to appeal is neither an inherent nor natural right. However when the right to appeal is there,
it is a substantive right and not merely a procedural right.
An agreement not to appeal is valid as long as it is done within the provisions of law.
Appeal is to be made within the time period as specified in Limitations Act- 90 days from decree for appeal to High Court and 30 days for all
other courts.
When may delay in appeal be condoned?: Every days delay must be explained, in a common sense, pragmatic manner. There is no
presumption that delay is occasion deliberately or on account of culpable negligence or an account of malafide. However it must be
recognized judiciary is respected not on account of its power to legalize injustice on legal grounds, but because it is capable of removing
injustice and is expected to do so.
Different Types of Appeals
Appeal from an original decree (Sn 96)

Appeal from an appellate decree (Second appeal) (Sn 100)
Appeal to the Supreme Court in certain cases (Sn 109)
Appeal from orders as distinguished from appeal from decrees (Sn 104).
APPEALS FROM ORIGINAL DECREES (FIRST APPEAL) (Sn 96)
Appeal from original decrees is to be filed within 30 days of the decree. The first appeal may be filed on a question of fact or on a question of
law or on a mixed question of fact and law
When is an appeal not allowed
No appeal lies from any decree

*passed by the Court with the consent of the parties.
decree passed by small cause court, if the value of the subject-matter does not exceed Rs. 10,000 except on appeal question of law.
against a final decree when there was no appeal against preliminary decree
against any finding, as opposed to decree
An appeal may lie from original decrees passed ex-parte i.e. without hearing of the parties.
Who can file an appeal
The following persons may file an appeal-
1. Any party to the original proceeding or his legal representatives

2. Any person claiming under such party or a transferee of interests of such party
3. Any person who has been appointed by the court as the legal guardian of a minor
4. Any other aggrieved person after taking the leave of the court
Grounds for appeal
Rules 1 and 2 of Order 21 lay down the requirements which must be complied with for a valid memorandum of appeal which are as follows-
(a) It must be in the form of a memorandum stating the grounds for filing the appeal.
(b) It must be signed by the appellant or his pleader.
(c) It must be presented to the court or any other officer appointed on its behalf.
(d) It must be accompanied by a certified copy of the decree.
(e) It must be accompanied by a certified copy of the judgment unless the same is dispensed with.
(f) In case of a money decree, the appellant must deposit the decretal amount or the security, as per the court’s discretion.
As per Rule 2, the appellant shall not except with the leave of the court take any grounds of objection other than those mentioned in the
memorandum. This is so that the opposite party is given notice of the objections raised.
However, the court may suo moto decide to take such objections as it deems fit even though they haven’t been specified in the
memorandum, provided the opposite party is given sufficient opportunity to contest such grounds.
Powers of Appellate Court
An Appellate Court shall have power
to determine a case finally An appeal is a continuation of proceedings. The appellate court can re-examine questions of fact and law
and may even re-appreciate evidence. The powers of the first appellate court are co-extensive with those of the civil court of original
jurisdiction. Unlike revision or review where limited grounds of interference are available, the appellate proceedings offer a much wider
scope in deciding about correctness of the judgments of the courts below.
to remand a case: When trial court has disposed the suit on a preliminary point without recording any findings and the decree has been
reversed in appeal, the appellate court shall send back or remand the case to the trial court to decide other issues and determine the suit.
to frame issues and refer it to trial: Where the appellate court is of the opinion that the lower court has omitted to frame or try any issue
or to determine any question of fact as it deems important for giving the right decision, it may frame such issues and send the case back
to the lower court to try such issues.
to take additional evidence or to require such evidence to be taken : Additional evidence, oral or documentary may be taken by the
appellate court only in the following circumstances-
(a) Where the lower court has refused to admit necessary evidence
(b) Where the party adducing the evidence establishes that such evidence was not within his knowledge even after exercising due diligence
at an earlier point of time
(c) Where such party establishes that even after exercising due diligence he could not produce such evidence when the original decree was
passed
(d) Where the appellate court requires any document or witness to be examined in order to pass a judgment
The appellate court will have to record reasons for the admission.
Additional evidence may be taken either by the appellate court or it may direct the lower court which had passed the decree or any other
subordinate court to take such evidence and send it to the appellate court.
Right of summary dismissal As per Rule 11, a court may dismiss the appeal summarily if it is convinced the case lacks merit.
Power to modify decree Appealite court can pass judgment not just against the appealant, but against all parties to the case
Duties of appealite court
Duty to decide appeal finally

duty to reappreciate evidence
Duty not to interfere with appeal for technical reasons
Duty to record reasons
Judgment
The judgment of the appellate court shall be in writing, and states
the points for determination

the decision
the reasons for the decision
relief, if any, to which the appellant is entitled.
day of the judgment
Number of appeal, name and description of appealant and respondent
Clear specification of relief granted or other abjudication made
Decision on costs, as to whom, and in what proportion it is to be paid
The decree shall be signed by the judge who passed it
Case Laws
Kaleidoscope India Pvt. Ltd. v. Phoolan Devi (1995): the Trial Court judge prohibited the exhibition of film both in India and abroad. Session
Judge permitted the exhibition of film abroad. The order was reversed by division bench saying that the judge entertained the suit on which
party has no locus standi.
State of Bombay v. Supreme General Films and Exchange (1960): Right to appeal cannot be taken away, if available on the date of
institution of suit and subsequently law passed taking away right to appeal.
Delhi Cloth & General Mills v. I T Commissioner (1927): Where right to appeal is created subsequently shall not be available to a litigant if
the suit was instituted prior to such creation.
SECOND APPEAL (Sn 100)

An appeal is allowed 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.
The memorandum of appeal should precisely state the substantial question of law involved in the appeal.
The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue only on
that. The court, my at its discretion, also hear on any other substantial question of law, not formulated
The High Court may also, if the evidence on the record is sufficient, determine any issue (even of fact) necessary for the disposal of the
appeal:
which has not been determined by the lower Appellate Court or both by the Court of first instance and the lower Appellate Court, or
Which has been wrongly determined by such Court or Courts by reason
Restrictions on Second Appeal
When an appellate decree or order is heard and decided by a single Judge of a High Court, no further appeal shall lie from the judgment,
No second appeal shall.lie in any suit tried by Courts of Small Causes, when the amount or value of the subject-matter of the original suit
does not exceed three thousand rupees.
FIRST V SECOND APPEAL

First Appeal Second Appeal
Lies from a decree passed by a court exercising original Lies from a decree passed by a court exercising appealite
jurisdiction jurisdiction
Appeal lies to a superior court Appeal lies only to High Court
Appeal may be on question of facts or question or law Second appeal possible only on question of law
Period of limitation is 30 days Period of limitation is 90 days
High court cannot decide a question of fact in exercise of its High Court can decide on question of fact in second appeal, in
revisional jurisdiction certain circumstances
Appealable Orders (Sn 104)

An appeal is allowed from the following orders directly
An order refusing leave to institute a suit for injunction against public nuisance (Sn 91) or suits related to public charities (Sn 92)
An order under section 95 (Compensation for obtaining arrest, attachment or injunction on insufficient grounds)
Order imposing a fine or directing the arrest or detention in civil prison of any person except where such arrest or detention is in
execution of a decree
order under S. 35-A (award of compensatory costs in respect of false or vexatious claims)
Any other order made under rules from which an appeal is expressly allowed by rules :
Appeals to the Supreme Court

Appeals to Supreme Court may be made when the case, in the opinion of High Court
involves a substantial question of law of general importance

needs to be decided by the Supreme Court.
There is no bar on approaching the supreme court by means of filing a writ petition
Appeal v Reference
APPEAL REFERENCE
Right conferred on person filing the suit/defendant Power vested in the court
Can be filed on any superior court Always made to the High Court
Can only be filed after decree is passed or an appealable order is made Always made when the suit is pending,
is a continuation of the suit is part of the same suit
appeals allowed from suits reference is for suits which are non-appealable
Essential conditions for reference
The should be a pending non-appealable suit or appeal

The court trying the suit must entertain a reasonable doubt on any question of law
Only a court of civil judicature can make a reference. Tribunals cannot make a reference
Reference can only be made to the High Court
The court may eitehr stay the proceedings or pass a decree subject to the reference orders, when reference is pending
APPEAL V REVIEW
APPEAL REVIEW
Lies to the superior court Lies to the same court which passed the judgment
lies only against decre4es and appealable orders lies from any decision of a court
Second appeal lies to a substantial question of law Second review application is not possible
can be for question of fact or question of law is only for glaring omissions or patent errors
may be applied by affected party may be applied by affected party
substantive right discretionary right of the court
The High Courts possess revisional jurisdiction along with their appellate jurisdiction.
In case of an appeal, the court may rehear the case on the basis of both law and fact, unless either of them is barred by statute.
However, in case of a revision, the court can only go into the matters of law and decide as to whether the lower court has followed the
procedure established by law.
In case of revision, the High court cannot re-examine the evidence put before the lower court, unless the same is provided by statute.
The court may exercise its inherent powers to pass appropriate orders under S.151 and allow for conversion of an appeal to a revision and
vice versa provided such revision or appeal has been filed within the time prescribed for filing such proceedings. There is however no
limitation on the application for conversion.
Review can be made for both appealable and non-appealable decrees. But appeal and review cannot be made at the same time. If appeal is
made first, court will not entertain review petition. If appeal is filed later, it does not affect right to review.
Examples of Error apparent on the face of records, which is the grounds for filing review petitions
Error apparent on face of record are self-evident errors or glaring omissions/mistakes.
pronouncement of judgment without considering law which had been amended retrospectively
judgment without considering statutory provisions
not trying a material issue in the vase
court decision against a party is not on the issues framed
Other sufficient reason should be analogous to the above reasons (Rule of Ejusdem Generis)
REFERENCE V REVIEW
REFERENCE REVISION
Subordinate court refers the case to the High Court, aggrieved party cannot Application made by aggrieved party
make a reference
Review is by court which passed the decree or made the
High Court alone decides on terms of reference
order
Application for review made only after decree is passed or
Made pending an appeal or execution
order is made
Case refereed to HC by courts subordinate to it Jurisdiction is made by aggrieved party
In reference, High Court considers only the following factors

1. Whether the court which passed the decree had the jurisdiction to do so
2. Whether that court failed to exercise a jurisdiction so versed
3 Whether the court which passed the decree acted in exercise of its jurisdiction illegally or with material irregularity.
High Court shall not reverse a decree, or issue stay, during course of reference proceedings.
Power of reference is similar to writ of certorai, but much narrower in scope
CODE OF CIVIL PROCEDURE (CPC): PART 2

compiled by Nayab Naseer
A project of Excellency Club, SFI & Students Union 2018-19, Govt. Law College, Ernakulam
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12/2/2020 CPC-2 - 3 Year LLB Notes: Excellency Club, GLCE Students Union 2018-19

CODE OF CIVIL PROCEDURE (CPC): PART 2

Search SUITS BY OR AGAINST GOVERNMENT (Sn 79 to Sn 82), ORDER 27

Print / download as Notice

Content of the notice:

1. Name, description and place of residence of the plaintiff

Provisions under Order 27

SUITS BY OR AGAINST MINOR AND PERSONS OF UNSOUND MIND

Any person can be appointed, as the "Next Friend" as long as he

Any of / or all parties to the suit, or

*Out of property of the minor, or

Out of Any fund in the court in which minor, is interested.

SUIT BY INDIGENT PERSONS (Order 33)

Who is an indigent person?

The court considers two specific yardsticks to determine if a person is indigent:

The burden of establishing indigence is on the person claiming indigent status.

Who foots the bill?

Where the plaintiff

Conditions to file an interpleader suit

Examples of interpleader suits

An agent cannot file an interpleader suit against his principal

Procedure to file Interpleader Suit (Order 35)

Plaintiff can file an appeal against an order dismissing an interpleader suit

ARREST AND ATTACHMENT BEFORE JUDGMENT

Attachment before Judgment (Order 38 Rule 5)

Order 38, Rule 5 CPC:

the Court may direct the defendant to

An attachment before judgment is in the nature of an interlocutory order.

The attachment may be terminated:

DIFFERENCE BETWEEN ‘ATTACHMENT PRIOR TO DECREE’ AND ‘ATTACHMENT AFTER DECREE’:

TEMPORARY INJUNCTION (Order 39, Rules 1 to 5)

What is Temporary Injunction?

When is Temporary Injunction Granted?

Some situations where temporary injunctions are usually granted include

Maintain status-quo with regards to ownership or possession of property

Temporary injunctions are not granted for:

Collection of tax and octroi

If an injunction is disobeyed by any party, the consequqnces are

Breach / Quashing Injunction

Interim (ex-parte) Injunction v Temporary Injunction

Temporary Injunction v Permanent Injunction

Stay v/s Injunction

EXECUTION : GENERAL PRINCIPLES

Powers and Limitations of Executing Courts

Court can also impose any other condition.

Judgment will not be stayed, if security is not furnished.

1. by delivery of any property specifically decreed;

Decree-holder has choice to choose any particular mode

1. seizure and delivery of the property

The arrest shall be subject to the following conditions

1. No dwelling-house shall be entered after sunset and before sunrise :

Maximum period of detention in civil prison is

If the amount is paid earlier, he or she shall be released immediately.

Attachment of immovable property

Properties that can be attached: Sn 60(1)

1. Lands, houses or other buildings,

These are however subject to restrictions. For eg:

Procedure for attachment