CPC – Paper 1

Q 1. What do you understand by suits by “civil nature “? Explain your answer with the help of decided
cases.
The suit of civil nature
Meaning
‘Civil Suit’ has not been explained in any act. Any suit that is not criminal in nature can be termed as a suit of a
civil nature. Any suit that pertains to determination and implementation of civil rights may be defined as a civil
suit. In the case of Kehar Singh Nihal Singh Vs Custodian General, the court elaborated the concept of Civil
proceeding. It was defined as a grant of private rights to individuals or corporations of society. The objective of the
action is the reward or recovery of private rights. In other words, the civil action may be described as the
proceeding between two parties for implementation or redressal of private rights. 
Suits of Civil Nature
Suits of civil nature is a very wide expression and not exhaustive in any law. However, some light can be casted on
this topic based on The Code of Civil Procedure, 1908 [Hereinafter mentioned as “CPC”]. In CPC suits of civil
nature means a suit that is presented before a Civil Court for adjudication of a civil matter, more specifically
to determine the right of property or office.
Here in both phrases,  “right to property” and “right to office” deserves more clarification. “Right to property”
means and includes movable, immovable,  intellectual, inheritable property and property that arise out of any
contract, agreement, litigation, or out of any other civil rights. As opposed to, “right to office” means a right to
hold a position and exercise the power of that position. It could be a job post, a religious, or any secular post.
Section 9
Provisions relating to “suits of civil nature” have been laid down in section 9 of CPC. It reads “Court shall have the
jurisdiction to try all suits of civil nature except those of which their cognizance is expressly or impliedly barred.”
In the landmark case, Shankar Narayan Potti v K Sreedevi, (1998) 3 SCC 751 the apex court held that ”it is
obvious that in all type of civil dispute civil courts have inherited jurisdiction as per section 9 of the CPC unless a
part of Jurisdiction is carved out from such jurisdiction, expressly or by necessary implication by any statutory
provision conferred on any other tribunal or authority.”
Civil Suit examples
Following are the suits of civil nature
 suit relating to property.
 suit for damage of civil wrong.
 suit for Specific Relief.
 suit for damage for breach of contract.
 suit for rent.
But these are not suits of civil nature,
 A suit for a declaration of a member of caste refrained from invitation to a caste dinner.
 A suit for expulsion of a member from caste.
 Suits involving purely religious ceremonies.
Nature and scope
The expression ‘suit of civil nature’ will cover the private rights and obligations of the citizens. The political and
religious question is not covered by a suit of a civil nature. A suit in which principal question is related to caste or
religion is not of a suit of a civil nature. But if the main question in a suit of civil nature involves the decision
relating to caste question or to religious rites and ceremonies it does not terminate to be a suit of a civil nature. The
court has jurisdiction to decide those questions also, in order to decide the important question which is of civil
nature.
Doctrine explained-
Explaining the concept of jurisdiction of civil courts under section 9, in PMA Metropolitan v. M.M. Marthoma, the
supreme court stated:
“the expensive nature of the section is demonstrated by use of phraseology both positive and negative. The earlier
part opens the door widely and latter debars entry to only those which are expressly or impliedly barred. The two
explanations, one existing from inception and later added in 1976, bring out clearly the legislative intention of
extending operation of the section to religious matters where right to property or office is involved irrespective of
whether any fee is attached to the office or not. The language used is simple but explicit and clear. It is structured
on the basic of a civilized jurisprudence that absence of machinery for enforcement of right renders it nugatory.
Each word and expression casts an obligation on the court to exercise jurisdiction for enforcement of rights. The
word shall makes it mandatory. No court can refuse to entertain a suit if it is of the description mentioned in the
section. That is amplified by the use of the expression. ‘ all suits of civil nature’. The word civil according to the
dictionary means, relating to the citizen as an individual; civil rights.’ In Black’s legal dictionary it is defined as, ‘
relating to provide rights and remedies sought by civil actions as contrasted with criminal proceedings’
The word ‘nature’ has defined as ‘the fundamental qualities of a person or thing; identity or essential character,
sort;kind;charachter’. It is thus wider in content. The word ‘civil nature’ is wider that the word ‘civil proceeding’.
The section would, therefore, be available in every case where the dispute was of the characteristics of affecting
one’s rights which are not only civil but of civil nature.”
iv. Test: 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 a question as to religious rites or ceremonies.
v. Suits of civil nature: illustrations- the following are suits of a civil nature.
1. suits relating to rights to property;
2. suits relating to rights of worship;
3. suits relating to taking out of religious procession;
4. suits relating to right to share in offerings;
5. suits for damages for civil wrongs;
6. suits for specific performance of contracts or for damages for breach of contracts;
7. suits for specific relief’s;
8. suits for restitution of conjugal rights;
9. suits for dissolution of marriages;
10. suits for rent;
11. suits for or on account;
12. suits for rights of franchise;
13. suits for rights to hereditary offices;
14. suits for rights to Yajmanvritis;
15. suits against wrongful dismissal from service and for salaries, etc.
vi. suits not of civil nature- illustrations- the following are not suits of a civil nature:
1. suits involving principally caste questions;
2. suits involving purely religious rites or ceremonies;
3. suits for upholding mere dignity or honor;
4. suits for recovery of voluntary payments or offerings;
5. suits against expulsions from caste, etc.

b. cognizance not barred

as stated above, a litigant having a grievance of a civil nature has a right to institute a civil suit unless its
cognizance is barred, either expressly or impliedly.
i. Suits expressly barred- a suit is said to be ‘expressly barred ’ when it is barred by any enactment for the
time being in force. It is open to a competent legislature to bar jurisdiction of civil courts with respect to a
particular class of suits of a civil nature, provided that, in doing so, it keeps itself within the field of legislation
conferred on it and does not contravene any provision of the constitution.
But every presumption should be made in favor of the jurisdiction of a civil court and the provision of exclusion of
jurisdiction of a court must be strictly construed. If there is any doubt about the ousting of jurisdiction of a civil
court, the court will lean to an interpretation which would maintain the jurisdiction.
ii. Suits impliedly barred- a suit is said to be impliedly barred when it is barred by general principles of law.
Where a specific remedy is given by a statute, it thereby deprives the person who insists upon a remedy of any
other form than that given by the statute. Where an act creates an obligation and enforces its performance in a
specified manner, that performance cannot be enforced in any other manner.
Samir Sajjad Ahmed vs Mohammed Ayub on 19 February, 2018
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil First Appeal No. 113 / 1990
Sageer Sajjad Ahmed S/o Peerzada Karimuddin, by caste Musalman Peerzada, R/o Peerzada Mohall, Nagour.
----Appellant Versus Mohammed Ayub through LR's :-
1. Abdul baaki S/o Mohammed Ayub
2. Abdul Hameed Peer S/o Mohammed Ayub
3. Mohammed Rafiq S/o Mohammed Ayub
4. Sufi Akhtar S/o Mohammed Ayub
5. Mohammed Suleman S/o Mohammed Ayub
6. Shamim D/o Mohammed Ayub W/o Iqramudin All R/o Mohalla Peerzadon ka, Nagour.
7. Nasheem D/o Mohammed Ayub, W/o Saiyad Saeed Ahmad, R/o Mohalla Saeedan, Badi Khaatu, Distt. Nagour.
8. Jamrud W/o Mohammed Ayub R/o Mohalla Peerzadon Ka, Nagour.
----Respondent _____________________________________________________ For Appellant(s) : Mr. Akshay
Nagori Ms. Mamta Gupta Nagori For Respondent(s) : Mr. Rishabh Shrimali
_____________________________________________________ JUSTICE DINESH MEHTA Judgment
Reportable 19/02/2018 The present appeal has been filed by the appellant laying challenge to judgment dated
28.4.1990 passed by learned Additional District Judge, Nagaur whereby the suit registered as Civil Original Suit
No.43/86 filed by him has been dismissed.
(2 of 23) [CFA-113/1990] The facts relevant and necessary for adjudication of the present appeal are that the
appellant - plaintiff had filed a suit for declaration and permanent injunction inter alia contending that the 'Dargah'
known as Hazrat Sufi Hamiduddin Tarkkin Sultan is a wakf property, in which an annual festival known as 'Urs' is
celebrated. The affairs of the said 'Urs' were managed by Rajasthan Wakf Board and during which, a customary
ceremony was being solemnized, according to which, the plaintiff and his side one the one hand and the defendant
and his side on the other hand jointly used to solemnize a ritual, in which the defendant brought 'Sandal Bowl'
(panu dk I;kyk) for handing it over to the plaintiff, who would offer the same to the 'Majaar'. The plaintiff's
assertion in the plaint was that such customs was being observed for past many years, before some dispute arose in
the year 1945, which dispute came to be resolved by way of arbitration. It had ben alleged that during arbitration
between both the groups, it was decided that the defendant group would bring 'Sandal Bowl' (panu dk I;kyk) and
request the plaintiff to offer the same to the Seat 'Majaar'; at such request the plaintiff would offer the 'Sandal
Bowl' to the 'Majar'.
Plaintiff's case has been that despite the long drawn tradition, defendant objected to the same on 21.3.1985 and
during the 'Urs', his group did not permit the plaintiff to offer the 'Sandal Bowl' (panu dk I;kyk) and again on
10.1.1986, they restrained the plaintiff to offer 'Sandal Bowl' (panu dk I;kyk) and instead insisted upon offering the
same by themselves. Faced (3 of 23) [CFA-113/1990] with such situation, the plaintiff filed a suit for mandatory
and permanent injunction with the following prayers :-
Explanation 1.--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.
Explanation I--For the purposes of this section, it is immaterial whether or not any fees are attached to the office
referred to in Explanation I or whether or not such office is attached to a particular place." A bare reading of the
aforesaid provision reveals that in order to ascertain as to whether a civil Court has jurisdiction to try (8 of 23)
[CFA-113/1990] a suit, the first question, which needs to be determined by the Court is, as to whether the suit is of
civil nature.
Q 2. What is an Appeal? Describe the power of the appellate court.
In law, an appeal is the process in which cases are reviewed by a higher authority, where parties request a formal
change to an official decision. Appeals function both as a process for error correction as well as a process of
clarifying and interpreting law.[1] Although appellate courts have existed for thousands of years, common
law countries did not incorporate an affirmative right to appeal into their jurisprudence until the 19th century.
An appeal is a remedial concept determined as an individual’s right to seek justice against an unjust decree/order
via referring it to a Superior Court. Sections 96 to 99A; 107 to 108 & Order 41 of the  Code of Civil Procedure,
1908 deal with appeals from original decrees known as First appeals. 
Essentials of appealing cases
An appeal is a proceeding where a higher forum reconsiders the decision of a lower forum, on questions of law &
fact with jurisdiction to confirm, reverse, modify the decision or remand the matter to the lower forum for fresh
decision in compliance of its directions. The essentials of appealing cases can be narrowed down to 3 elements:
 A decree passed by a judicial/administrative authority;
 An aggrieved person, not necessarily a party to the original proceeding; and
 A reviewing body instituted for the purposes of entertaining such appeals.
Right to appeal
The right to appeal is a statutory & substantive one. The statutory nature of an appeal implies that it has to be
specifically conferred by a statute along with the operative appellate machinery as opposed to the right to institute
a suit, which is an inherent right. It is substantive in the sense that it has to be taken prospectively unless provided
otherwise by any statute. This right could be waived off via an agreement, and if a party accepts the benefits under
a decree, it can be estopped from challenging its legality. However, an appeal accrues to the law as found on the
date of the institution of the original suit.
One right to appeal
Section 96 of the CPC provides that an aggrieved party to any decree, which was passed by a Court while
exercising its original jurisdiction, is conferred with at least one right to appeal to a higher authority designated for
this purpose, unless the provisions of any statute make an exception for it. Section 97, 98 and 102 of the CPC
enumerate certain conditions under which no further appeal is permitted, hence attributing to a single right of
appeal.
No right to appeal
No person has a right to appeal against a decision unless he is a party to the suit, except on special leave of the
Court. An essential element to be taken into account while considering one’s right to appeal is whether such person
is adversely affected by the decision/suit, which is a question of fact to be determined in each case. 
Distinction between suit and appeal
Suit Appeal
Where a cause is created and issues are disputed on questions of An appeal only reviews & corrects the proceedings in a
both facts and law, it is known as a suit. case already constituted but does not create a cause.
A suit is an attempt to achieve an end via a legal procedure As per  Dayawati v. Inderjit, it is the continuation of a suit
instituted in a Court of law for enforcing one’s right/claim. in certain situations.
A suit is filed in the lowest Court in its respective hierarchy for An appeal is filed in an Appellate Court for the purposes of
trial. reviewing the decision of the inferior Court.
Garikapati Veeraya v. Subbiah Chaudhary
In the instant case, it was held that the pre-existing right to appeal to the Federal Court continued to exist and the
old law which created such a right also continued to exist. It construed to the preservation of this right while
recognizing the change in its judicial machinery from the Federal Court to the Supreme Court. However, the
continuance of the old law is subject to the provisions of the Constitution.
The distinction between appeal and revision
Appeal  Revision
An appeal lies to a Superior Court from every original decree A revision to High Court is available only in those cases
unless expressly barred. and against such orders where no appeal lies.
A right of appeal is one of substantive nature conferred by the There is no such right of revision because revisional
statute. power is purely discretionary.
An appellate jurisdiction can be exercised only through a
The revisional jurisdiction can be exercised suo motu as
memorandum of appeal filed before the Appellate Court by the
well.
aggrieved party and cannot be exercised suo motu.
An application for appeal is maintainable on legal grants as well as An application for revision is maintainable on the
on question of fact. ground of jurisdictional error.
An appeal abates if the legal representative of the deceased are not A revision may not abate and the High Court has a right
brought on record within the time allowed by law. to bring the proper parties before the Court at any time.
The High Court or the revisional Court cannot, in the
A Court of appeal can, in the exercise of its powers, set aside the
exercise of its revisional powers, set aside the findings
findings of facts of subordinate Courts.
of facts of subordinate Courts.

What is an Appellate Court?

Appellate Courts are those courts which come under appellate jurisdiction which is nothing but the ability of courts
to rehear or review a case that has been already decided by a lower court. This gives an additional opportunity to
the parties to bring their case in the form of appeal to higher courts if they are not satisfied with the judgement of
the lower court. The appellate courts can either reverse the decision of the lower court or uphold it. Their job is to
make sure that justice is delivered keeping in mind the facts of the case and the relevant laws which apply to those
facts. A simple example is when a person is not satisfied with the judgement of the district court, he/she can take
his/her case before the high court for rehearing.
Right to Appeal under the Code of Civil Procedure
Section 96 of the code says that a right to appeal shall lie in a higher court against any decree or order passed by
any lower court exercising original jurisdiction. Original jurisdiction is the power of a court to hear a case for the
first time, unlike appellate jurisdiction. The above section also proved certain instances where the right to appeal
lies or does not lie, for example, it lies in an ex parte decision when a decree is passed without hearing both the
parties.
Also, according to section 96(3), no appeal can be made against an order or decree which is passed by the consent
of the parties. No appeal exists when a party deliberately waives off its right to appeal i.e., if a party ratifies the
decision of a court by accepting its provisions, then it is estopped from appealing it in higher courts.
Section 97 talks about how an appeal against a final decree cannot be applied to the preliminary decree. A
preliminary decree is a decree which is passed before the actual disposition of a case which is done through the
final decree, for example, if there is a dispute between two brothers regarding partition of a property, then the
court first decides what will be the share of each owner in the rights of the property and then file a preliminary
decree deciding the justified share.
Section 99 and 99A say the no order or decree subject to an appeal can be reversed on an error or irregularity
which does not affect the merits of the case or prejudicially affect the decision of the case.
Power of Appellate Courts
The power of appellate courts is given in section 107 of the code which says that subject to the limitations
provided, an appellate court has to power to –
1. To finally determine a case.
2. To remand a case.
3. To frame issues and refer them to trial.
4. To summon witnesses.
5. To obtain additional evidence or order such evidence to be taken.
6. To reverse the decree of the lower court if it is not justified.
Now the general rule is that the evidence that is present on record is insufficient for the appellate court to decide
the case and that the order should not be dependent upon any fresh evidence.
1. The first condition is that the person seeking or demanding the admission of additional evidence should be able
to establish with a valid reason as to why he/she was not able to provide that evidence in the first instance i.e., to
the lower courts.
2. The second condition is that the party which is affected by the admission of the additional evidence should be
provided with an opportunity to rebut such additional evidence.
3. The third condition says that the additional evidence that is to be accepted should be relevant for the
determination of the issue or the case at hand.
The above section also gives the power of remand to the appellate court which means that the appellate court can
send the issue back to the lower court to retry or reconsider it. But again, there are certain conditions that should be
met before the court can use this power. The first condition is that the suit should have been disposed of by the
lower court or the trial court at an initial stage or a preliminary point. Secondly, the order or decree which is
under appeal must have been repealed or reversed and thirdly, there could be any other reason because of which
the appellate court presumes that it will be of paramount importance to send the case back to the lower court
keeping in mind the principles of natural justice and the fact that the case was disposed of by the lower court at a
preliminary point.
Duties and Functions of Appellate Courts
The powers of the appellate court are not absolute and this is inferred by looking at the duties that are fixed upon it.
The following are its duties and function–
1. It has a duty to analyze the factual positions keeping in mind the relevant laws and decide the case. It is the duty
of the court to give judgment based on the appeal by applying the judicial minds that the judges possess.
2. It has a duty to give cogent or appropriate reasons while reversing the judgement of an inferior court. It is one of
the most important functions of the court which says that all appellate courts other than a high court have a duty to
record reasons justifying their decision.
3. To decide the appeal only in compliance with the scope and powers conferred upon it under section 96 and rule
32 of the code.
4. It has a duty to reappreciate the evidence. The court after taking due care and caution should reappreciate the
evidence that was presented before the lower court to make sure that the approach of the trial court while recording
and appraising the evidence was not erroneous or contrary to the established principles.
5. It has a duty not to reverse or interfere with a decree passed by a lower court only on technical grounds if the
decree is otherwise correct and based on merits.
Conclusion
Through this article, we have made ourselves aware and familiar with the system of checks and balances that have
been provided through the Code of Civil Procedure when it comes to the working of appellate courts. It has been
set in this way to make sure that an uncontrollable power is not given to the higher courts which contrary to its
original task of righting the wrongs of lower courts actually helps undermines their authority. 
Q 3. What is meant by Review? In what cases and in which court can a party make an application for
review of judgement.
According to the Code of Civil Procedure, 1908, when a party is aggrieved by the decree passed by the court, he
can approach the superior court by way of appeal, against the decree passed by the trial court. Generally, under
appeal, the whole dispute is re-heard by the appellate court. But in cases where there are technical/procedurals
errors, the aggrieved party need not take the pain of approaching the higher court for going through the hassle of
contesting another suit which is in the form of appeal. For the same purpose, the Code of Civil procedure has
introduced the concepts called Reference, Review and Revision under Sections 113, 114 & 115 respectively. An
application for Reference, Review and Revision can be filed in the concerned courts as provided by the Code and
the proceedings under these applications do not deal with merits (facts or evidence) of the case. They are solely
based on technical grounds.
Reference
Reference is dealt under Section 113 of the Code. It mentions that a subordinate court can refer a doubt to the High
court where the former thinks that there should not be misinterpretation with regard to any law. This is called a
reference. No party to the suit has the right to apply for reference. It is only the subordinate court which has the
power of reference suo-moto (on its own motion) when there is doubt regarding the validity of any legal provision.
For matters other than the validity of legal provisions, the court is not bound to refer to the High court. So, when
the court feels that it needs clarification regarding any matter which is pending, it can seek an opinion from the
High court to avoid the commission of errors while rendering a judgement. If there is reasonable doubt regarding
the question of law, subordinate courts can exercise the right of reference under the following situations when:
 A question as to the validity of any act, rule, regulation, ordinance, etc., arises in the court where the suit is
being entertained
 The court is of the opinion that such act or any other provision of law is invalid (“ultra vires” means
“beyond the powers”) or inoperative
 Such question on the provision of law is never before made invalid either by the High court or Supreme
court
 It is pertinent for determining the validity of such provision of law for disposal of the suit
Order 46 of the Code lays down the conditions which should be satisfied by the subordinate court in order to make
a reference to the High court. They are:
 The suit or appeal must be pending wherein no further appeal lies from decree or order of such suit or
appeal respectively
 The question of law must arise during the course of proceedings, i.e., the pendency of the suit
 The court must be entertaining the suit from which such doubt regarding the question of law has arisen
where such reference has been made to the High court, the subordinate court may pass a decree, taking into
consideration, the opinion of the High court.
Review
A review is mentioned under Section 114 of the Code. An aggrieved party can file an application for review in the
same court where the decree has been passed. This provision enables the court to review its own judgement in case
of any error or mistake made with regard to the decision rendered, to rectify the same. While Section 114 is a
substantive right, the procedure for the same has been provided for under Order 47 of the Code. The application for
Review can be filed under the circumstances where:
 a decree or order is appealable as provided by the law, but no such appeal has been preferred
 there is no provision for appeal from certain decree or order
 a decision is passed by the court of Small Causes
The grounds for filing review application are:
 discovery of new facts when there is no knowledge about the same or could not produce the same due to
negligence, prior to the time when the decree was passed
 the error apparent on the face of the record which means errors which do not give rise to re-arguments of
the whole case and those which are not related to erroneous decisions
 any other sufficient grounds as provided by the Code, wherein the misconception of the court can be
considered as sufficient ground
The application for review shall be filed within 30 days from the date of order/decree. The order or decree
passed after such review shall be final and in force. The review petition is discretionary of a court, meaning, it can
either choose to entertain or reject the application.
 As a matter of fact, the Supreme court can also review its own decisions under Article 137 of the
Constitution of India. As per Supreme Court Rules, 1966, the review petition should be filed within thirty
days from the date of judgment.
Revision
The High court has the power to call for a re-examination of any case which has been decided by the subordinate
court without appropriate jurisdiction. This power of the High court is called Revisional Jurisdiction of only High
court which is mentioned under Section 115 of the Code. The revisional jurisdiction is not a substantive right but is
merely a privilege given to the applicant. An application for revision can be made by the parties to the suit under
the following circumstances where the subordinate court has:
 not exercised jurisdiction as conferred by law (wrongful assumption of the court regarding the jurisdiction)
 failed to exercise jurisdiction that is vested in it (non-exercise of jurisdiction by the court)
 illegally exercised its jurisdiction (irregular exercise of jurisdiction by the court)
The High court cannot reverse a judgement where:
 the whole suit has been disposed of by the parties
 the reversal of such judgement shall cause irreparable injury/loss against whom it was made
Since the High court only possess the Revisional jurisdiction, the order made from the exercise of such power is
not appealable.
Application for review
The Tribunal's judgments are final and there can be no appeal (Article VI(1) of the Statute). However, Article
VI(1) provides that the Tribunal may nevertheless consider applications for review of a judgment.

The Tribunal has made it clear through its case law (see, for example Judgment 3897, consideration 3) that a
judgment can be reviewed only on limited grounds.

Admissible grounds for review are:

 failure to take account of material facts;
 a material error (a mistaken finding of fact involving no exercise of judgement);
 omission to rule on a claim;
 the discovery of new facts on which the complainant was unable to rely in the original proceedings.
Note: these ground must be likely to have a bearing on the outcome of the case.
The following grounds are not admissible grounds for review:
 mistake of law;
 failure to admit evidence;
 misinterpretation of the facts;
 omission to rule on a plea.
An application for review must satisfy the formal requirements provided for in the Rules; the party applying for
review should fill in a specific form available on the web site of the Tribunal, write a brief, provide a list of
annexes as well as the annexes themselves, and submit six copies of all these documents. These applications are
not subject to specific time limits, but must be filed within a “reasonable time”, nor is there any obligation to
exhaust internal means of redress before filing the application.
Conditions for applicability
An application for Review may be filed by any person, if such person perceive himself as aggrieved by–
   (a) A decree or order which has been passed or made, by any civil court, And
 from such decree or order, an appeal is allowed,
 But no appeal has been filed yet, at the time of filing of the Review application
Grounds for review
Review can be filed, if there is:
 discovery of New and Important matter or evidence, which, after the exercise of due diligence was not
within the knowledge of the person seeking review or could not be produced by him at any time when the decree
was passed or order made; or
 some mistake or error apparent on the face of the record; or
 any other sufficient reason.
Time limit and manner of filing
A review application or petition may be filed by the affected party within 30 days of the Order passed by the High
Court or Supreme Court. The decisions of both Supreme Court and High Courts can be reviewed in Review
Petition. Article 137 of the Constitution provides that subject to provisions of any law and rule made under Article
145 the Supreme Court of India has the power to review any judgment pronounced (or order made) by it.
Civil litigation and Criminal litigation
A civil review petition can be moved in accordance with Order XLVII, Rule 1(1) of the Code of Civil Procedure,
1908 and a criminal review petition can be moved only on the ground of an error apparent on the face of the record
in terms of CRPC, 1973.
Review Petition in respect of tax litigation
Review Petition in respect of tax litigation is dealt with under Section 114 and Order 47 of the CPC. Any party
aggrieved by an order or judgment may apply for reviewing the said order or judgment to the same court. It can be
filed where no appeal is preferred or in case there is no provision for appeal. As per Order 47 Rule 1 of CPC every
Court has been conferred power to review its own decision if its decision is vitiated by a mistake or error apparent
on face of record. But error on the face of record must be such error which must be evident per se from record of
the case and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position.
Third party can not file a Review Petition
A third party cannot file a review petition. The following are the Supreme Court case laws:
Satvir Singh v. Baldeva (1996) 8 SCC 593
Simranjit Singh Mann v. Union of India (1992) 4 SCC 653
State of Karnataka V. T. R. Dhannanjaya (1995) 6 SCC 254
Success of Review Petition
A review petition is being preferred only on limited grounds, such as an error apparent on the face of the record.
Generally, review petition are hear by the same judges who had earlier decided the case. The judges may be called
for records relating to the said matter during re-hearing of the case for re-examination if any mistake happened in
the Order so pronounced by the court. Thus, a chance of success in a review petition is very limited.
Vodafone-Hutchison Tax Case
On 17.02.2012, Govt of India moved the Supreme Court seeking a review of its verdict holding that the Indian
Income Tax Department does not have jurisdiction to impose Rs.11,000 crore as tax on the overseas deal between
Vodafone and Hutchison. On 20.03.2012, Supreme Court dismissed the review petition during an in-chamber
proceeding saying the petition has no merit.
 [JSW Energy Limited v. Union of India (2019) (17) G.S.T.L.198 (Bom.)]
Distinction between a Reference and a Review
The power of revision is exercised by the court superior to the court which decided the case but the power of
review is exercised by the very court which passed the decree or order.
The power of revision is conferred on the High Court only, which is not so in the case of review. Any court can
review its judgment.
Revisional powers by the High Court can be exercised only in a case when there is no appeal to the High Court,
but review can be made even when appeal lies to the High Court therein.
The grounds on which the powers of revision and review can be exercised are different. The ground for revision
relates to jurisdiction, viz., want of jurisdiction, failure to exercise a jurisdiction, or illegal or irregular exercise of
jurisdiction, while the ground of review may be
(a) the discovery of new and important matter or evidence.
(b) some apparent mistake or error on the face of the record.
(c) any other sufficient reason.
In revision, the High Court can of its own accord, send for the case but for review an application has to be made by
the aggrieved party.
No appeal lies from an order made in the exercise of revisional jurisdiction, but the order granting review is
appealable.
Distinction between Appeal and Reference
A right of appeal is a right conferred on the suitor, while the power of reference is vested in the court.
Reference is always made to the High Court. While an appeal is preferred to a superior court which need not
necessarily be High Court.
The grounds of appeal are wider than the grounds of reference.
Reference is made in a pending suit, appeal or execution proceeding in order to enable the court to arrive at a
correct conclusion, while an appeal is preferred after the decree is passed or an appealable order is made.
Distinction between Appeal and Revision
An appeal lies to a superior court, which may not necessarily be a High Court; but an application for revision lies
only the High Court.
An appeal lies only from appealable orders and decree, but an application for revision can be made only when the
relief by way of appeal to the High Court is not available.
A right of appeal is a substantive right given by statute. There is no right of revision. It is only a privilege. A party
may move the High Court to invoke its revisional jurisdiction or the High Court may of its own motion exercise
revisional jurisdiction, but the power is discretionary.
An appeal abates, if the legal representatives of a deceased party are not brought on the record within the time
allowed by law. A revision does not abate in case of the death of a party even if the legal representatives are not
brought on the record. The High Court has a right to bring the proper parties before the Court at any time.
The grounds of appeal and revision are different. An application in revision can lie only on the ground of
jurisdiction, and the High Court in exercise of its revisional jurisdiction is not a court of appeal on a question of
law or fact. In an appeal the court has the power to decide both questions of fact and law.
Section 115 does not require that there should be an application in revision. The High Court can move of its own
accord in exercising revisional jurisdiction. In case of appeal there must be a memorandum of appeal filed before
the same can be considered by the appellate court.
An essential distinction between an appeal and a revision is based on differences implicit in the said two
expressions. An appeal is continuation of the proceedings. In effect, the entire proceedings are before the appellate
authority and it has power to review the evidence subject to the statutory limitations prescribed. But in the case of a
revision, whatever powers the revisional authority may or may not have, it has not the power to review the
evidence unless the statute expressly confers on it that power, also mentioned in case of State of Kerala v. K.M.
Charia Abdulla and Co. (1).
Review of Judgment?
The dictionary meaning of review is ‘to examine or to study again’. So, the review of judgment is to examine or
study again the facts and judgment of the case. Review of judgment is the substantive power of review by the court
mentioned in Section 114 of CPC. This section doesn’t provide any limitations and conditions for review. The
limitations and conditions are provided in Order 47 of the Civil Procedure Code. Order XLVII contains nine rules
which impose some condition for the review.
What is the time limit for filling the Review application of Judgment?
As per the Supreme Court Rules, 1966, the Review application shall be filed within the 30 days from the day the
judgment or order passed.
And for appeal against any sentence or judgment in High court, shall be filed within 60 days from the day of
judgment. For the appeal against the death sentence or capital punishment, the limitation period is 30 days from the
passing of order.
What are the rules in Order 47 of Civil Procedure Code 1908?
Order 47 of CPC deals with the application for review of the judgment. An application for review can be rejected
on various grounds. These grounds are mentioned in the rules of Order 47 of CPC.
Rule 1 of Order 47 of CPC:
“(1) Any person considering himself aggrieved-
 
 by a decree or order from which an appeal is allowed, but from no appeal has been preferred,
 by a decree or order from which no appeal is allowed, or
 by a decision on a reference from a Court of Small Causes,
and who, from the discovery of new and important matter or evidence which, after the exercise of due
diligence was not within his knowledge or could not be produced by him at the time when the decree
was passed or order made, or on account of some mistake or error apparent on the face of the record or
for any other sufficient reason, desires to obtain a review of the decree passed or order made against
him, may apply for a review of judgment to the Court which passed the decree or made the order.
 
(2)  A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the
pendency of an appeal by some other party except where the ground of such appeal is common to the applicant
and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies
for the review.”
What are the Grounds for review of judgment?
 When new and important evidence is discovered by the applicant and he/she was not in knowledge or
due to negligence not able to provide the evidence when the decree was passed.
  Power of review is available only when there is an error apparent on the face of the record and not on
the erroneous decision. An error apparent on the face of the record, can’t be defined precisely and it has
to be decided judicially on the facts of each case. [1]
 Any other sufficient grounds which is analogous to those specified in these rules.
 The misconception of the court can be regarded as the sufficient ground for review of the judgment.
What are the ‘any other sufficient reasons’ that permit the application of review?
The words ‘any other sufficient reason’ means a reason sufficient on the ground at least analogous to those
specified in the rule. [2]
Total misreading of the admitted records doesn’t come within the ambit of the ‘discovery of new facts’ and ‘error
apparent on the face of record’. Hence, it comes within the ambit of ‘any other sufficient reasons’. And the review
application is required to be supported by an affidavit. [3]
Rule 5 of Order 47 of CPC
“Application for review in Court consisting of two or more judges-
Where the Judge or Judges, or any one of the judges, who passed the decree or made the order a review of which
is applied for, continues or continued attaches to the Court at the time when the application for a review is
presented, and is not or not precluded by absence or other cause for a period of six months next after the
application from considering the decree or order to which the application refers, such Judge or Judges or any of
them shall hear the application, and no other Judge or Judges of the Court shall hear the same.”
Hearing of review by the same judge:
A review must be heard by the same judge or by the same court. The reason behind this is that the same judge will
be in the best position to review the judgment. But in the case where the same judicial officer is not available then,
it is very settled law that any court of competent jurisdiction can hear the case.
As per rule 5,
Rule 6 of Order 47 of IPC:
“Application where rejected-
 
 Where the application for a review is heard by more than one Judge and the Court is equally divided,
the application shall be rejected.
 Where there is a majority, the decision shall be according to the opinion of the majority.”
 
When the judgment is given by more than one judge then, the decision on the application will be done by the
majority. The bench is divided and shall reject the application where a review application is heard by more than
one judge.
What are the grounds on which the review application can be rejected?
 Judges or court can reject the review application when they are satisfied that the application of review
is not based on the discovery of new facts,  error apparent on the face of the record or any other
sufficient grounds which is analogous to those specified in these rules.
 If the review is filed after the expiry of the prescribed time period for filing of the application without
reasonable excuse.
 The application of review will be rejected if the appeal is on the already reviewed order.  There will be
no further review of any order or judgment passed on the review order.
 If there is the failure of appearance of the applicant on the date fixed for the review without any
sufficient reason for non-appearance.
 In case of two or more judges, the decision of majority will be considered.

Q 4. What are the particulars of Summons? Discuss different modes of service of summons.
The term “summons” has not been explicitly defined under any statute. However, the essential ingredients of a
summons can be found in both the Code of Civil Procedure, 1908 as well as the Code of Criminal Procedure, 1973.
In the absence of a clear definition, the Courts are known to rely on the meanings and definitions as provided under
various legal dictionaries and lexicons.
According to P. Ramanatha Aiyar’s Law Lexicon, a summons is a process issued from the office of a court of
justice requiring the persons to whom it is addressed to attend the court for the purpose therein stated[i]. In
Wharton’s Law Lexicon, a summons is defined as the means by which one party brings the other before a judge to
settle matters of details in the procedure of a suit[ii].
Laws Governing Summons
Provisions under sections 61 to 69 of CrPC deal with the forms of the summons and their service in criminal cases.
On the other hand, provisions under section 27 and Order V of CPC deal with the service of summons in civil
cases. Order 16 deals with the summoning of witnesses.
Essentials in a summons
As per Order 5 Rule 1, the basic necessity in any summons is the sign of the Judge and seal of the court
issuing the summons. With respect to the summons to a witness, Rule 5 of Order 16 states that particulars
such as date and time at which the witness is required to attend are to be specified. Along with these, the
reason for the procurement of the attendance of the witness such as to give evidence or to produce a
document or both should also be mentioned in the summons. If the witness is called for producing any
document, the name and description of the document required should also be mentioned in the summons.
Why is it issued?
Audi Alteram Partem is one of the two basic principles of natural justice. It means that no one should be
condemned unheard. To ensure justice is being served, all the parties involved must be given a chance to be heard.
This principle ensures an individual’s right to a fair trial and has been incorporated within the ethos of our
Constitution and legal machinery.
A summons is issued to inform the person, to whom it is issued, about his involvement in the legal proceedings. It
is to give him a chance to set the record straight with the court, give his version of the facts and defend himself.
Without such information being passed, the trial won’t be fair and would be against the rule of law and principles
of natural justice.
Modes of Serving Summons
The modes of serving summons are defined in CPC and CrPC for civil cases and criminal cases respectively.
The Civil Procedure Code, 1908 provides for the following modes of service[iii] of summons:
1. Service by Court
Order V, rule 9 states that where the defendant or his agent empowered to accept the service resides within the
jurisdiction of the Court in which suit is instituted, the summons shall be delivered or be sent to the proper officer
to be served or sent to a Court-approved courier service. Sub-rule (3) of this rule states that such a service may be
made by delivering or transmitting a copy by registered post acknowledgement due to either the defendant or such
agent by speed post or a Court approved courier service.
Sub-rule (5) states that return of acknowledgement or receipt signed by the defendant or his agent, or the return of
postal article containing summons along with the endorsement by the relevant postal officer/employee of refusal to
take delivery shall be declared by the court as due service.
2. Service by Plaintiff
As per the provisions of Order V, Rule 9A, in addition to the service of summons under rule 9, the Court may, on
an application by the plaintiff, permit such plaintiff to affect the service of summons upon the defendant.
If such service is refused, or if the person served refuses to sign the acknowledgement of service or for any reasons
the summons were not served personally, then, the Court shall reissue such summons on an application of the
party.
3. Service on Agents
Order V, Rule 13 states that when a suit regarding business or work is filed against a person who does not reside
within the jurisdiction of the Court issuing summons, then the summons being served on any manager or agent
personally carrying out such business or work shall be considered god service.
Order V, Rule 14 states that when in a suit to obtain relief with respect to immovable property service cannot be
made on the defendant or his agent empowered to accept such service then the service must be made on any agent
of the defendant who is in charge of the property.
4. Service on Adult Member of Family
According to the provisions of Order V Rule 15, where the defendant is absent from his residence at the time of
service of the summons and there is no likelihood of him being found within a reasonable period of time and he
has no agent empowered to accept service on his behalf, the service may be made to any adult member of the
family residing with him.
5. Service When Defendant Refuses to Accept Service
Rule 17 of Order V provides for the procedure when the defendant refuses to accept service or cannot be found
after due and reasonable diligence. In such a case, the serving officer must affix a copy of the summons on the
outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on
business or personally works for gain.
6. Substituted Service
The provisions of Order V, Rule 20 provide for substituted service. Such a mode of service can be adopted by the
Court when it is satisfied that the defendant is keeping away for the purposes of avoiding service or for any other
reason the service cannot be made in an ordinary manner. This legal position was reiterated in Dhal Singh Kushal
Singh v Anandrao Kakde[iv].
As per this rule, the Court shall order that a copy of the summons be affixed on some conspicuous place in the
Courthouse and also on some conspicuous part of the house in which the defendant is known to have last resided or
carried on business or personally works for gain.
In Chandergupt Arora v Smt Shaheen Khan & Others[v],
Service When Defendant Resides Within Jurisdiction of another Court
When the summons is to be served upon a defendant residing in the jurisdiction of another Court, then, as per Rule
21 of Order V, the Court issuing the summons may send it to the other Court through one of its officers or by post,
or by Court-approved courier service or by fax message or email.
8. Service on Defendant in Prison
Rule 24 of Order V of CPC states that when a defendant is confined in a prison, then, the summons may be sent or
delivered to the officer in charge of the prison by post, courier, fax message, email or any other means as provided
under the rules made by the High Court.
9. Service of Summons Abroad
As per Rule 25 of Order V, when the defendant resides out of India and has no agent in India empowered to accept
service, then, the summons shall be sent to the defendant at the place where he is residing and send the same to him
by post, courier service, fax message, or email.
The Code of Criminal Procedure, 1973 provides for the following modes for service of summons:
1. Personal Service
Section 62 of CrPC provides for the procedure of serving summons personally. Clause (1) of this section states that
summons shall be served by a police officer, or by an officer of the Court or by any other public servant in
accordance with the rules made by the State Government in question.
Clause (2) states that as far as practicable, the summons must be served personally on the person summoned.
Clause (3) states that the person on whom a summons is served must sign on the back of a duplicate if asked to do
so by the serving officer.
2. Service on Corporate Bodies and Societies
According to the provisions of section 63 of CrPC, summons on corporate bodies and societies may be effected by
serving it on the secretary, local manager, or other principal managers of the corporation. The summons can be
served by a letter sent through registered post to the chief officer of a corporation.   Here, the service will be said to
be completed when the letters arrive in the ordinary course of post.
3. Service when Person Summoned cannot be found
Section 64 of CrPC states that when a person who is summoned cannot be found after due diligence, then, a
summons may be served by leaving a duplicate with an adult male member of his family residing with him. Such
an adult male member must sign a receipt on the back of another duplicate if asked by the serving officer.
4. Substituted Service
Section 65 provides for the procedure when service of summons cannot be effected after due diligence according
to the manner provided under sections 62, 63 or 64. In such a case, the serving officer shall affix one of the
duplicates of summons on a conspicuous part of the house or homestead in which the person summoned ordinarily
resides. The Court may declare that summons has been duly served after making inquiries as it deems fit or order
fresh service.
In Mac Charles (I) Ltd v Chandrashekar And Anr.[vi], Karnataka High Court stated that the mode of service
prescribed under section 65 of CrPC is substituted service and is well recognized in law even for criminal trials.
Service on Government Servants
Section 66 of CrPC provides for the service of summons to a person who is inactive service of the Government. In
such a case, the Court shall send a duplicate of the summons to the head of the office in which such person is
employed. Thereafter, the head office must serve it to the person summoned in the manner provided under section
62 of CrPC.
The head officer must then return the duplicate to the Court under his signature which shall be considered as
evidence of due service.
6. Service on Witness by Post
Section 69 states that notwithstanding anything in the previous sections of Chapter VI CrPC, the Court may in
addition to and simultaneously with the issue of summons on a witness, direct that a copy of such summons be
served by registered post addressed to the witness where he ordinarily resides or works.
Such summons will be considered duly served when an acknowledgement is signed by the witness or an
endorsement is made by the postal office that the witness refused to take delivery.
Service through Electronic Means
The service of summons by electronic means is not a new concept in India. Time and again, courts have permitted
the use of SMS or email to serve summons[vii]. It was in Central Electricity Regulatory Commission v National
Hydroelectric Power Corporation Ltd. & Ors[viii] that the Hon’ble Supreme Court gave certain guidelines
regarding service to deal with arrears in Courts. The apex Court stated that service may be affected by e-mail along
with the ordinary mode of service.
In KSL & Industries Ltd v Mannalal Khandelwal & State of Maharashtra[ix], the Bombay High Court was of the
view that a lot of time is spent in service of summons mainly due to the accused’s tendency to avoid summons.
In Tata Sons Limited & Ors v John Does & Ors[xi], the Delhi High Court permitted the plaintiffs to serve the
defendants by text message as well as through WhatsApp and by email.
Consequences of Avoiding and Preventing the Service of Summons
In civil cases, avoiding and non-compliance of service of summons can lead to an ex-parte decree against the
defendant. On the other hand, in criminal cases where the matters are of a serious nature, the Court first issues
bailable warrants. If these warrants are not complied with, non-bailable warrants will be issued. Even then a failure
to appear before Court can lead to the initiation of proceedings under sections 82 and 83 of CrPC.
Avoiding and preventing the service of summons are also recognized as offences under the Indian Penal Code,
1860.
Section 172 of IPC provides that whoever absconds to avoid being served from any public servant shall be
punished with simple imprisonment of one month or a fine of five hundred rupees or both. If the summons is to
attend in person or by an agent or to produce any document in a Court of Justice, then the absconder shall be
punished with simple imprisonment of six months or a fine of one thousand rupees or both.
Section 173 states that whoever in any manner intentionally prevents the serving on himself, or any other person
from any public servant, or intentionally prevents the affixing to any place of summons, or intentionally removes
form any place any such summons, or intentionally prevents the lawful making of any proclamation must be
punished with simple imprisonment of one month or fine of five hundred rupees or both
Conclusion
Summons is a legal document issued by a Court to an individual involved in a legal proceeding to ensure his/her
appearance. A summons is issued to inform and give notice to such an individual of his involvement in a legal
proceeding and to offer him a chance to defend himself. This is done in consonance with the principles of natural
justice. 
Q 5. What are the procedure of issuing Commission by the court?
The purpose of issuing commission by the court is to impart complete justice to the parties to the suit. The power
of issuing commission rests totally in the discretion of the judges[1]. By issuing a commission in a particular case,
the Court performs an in - depth investigation where the Court deems necessary.
Issuing of Commission can be made by the Court if it gets an application from the parties, stating the necessity for
the same or sue - moto.[2] Section 75 to 78 of the Code of Civil Procedure, 1908 speaks about the discretionary
power of the Civil Courts and Order 26 to issue commission for the furtherance of complete justice.[3] According
to Section 75 of the Code of Civil Procedure, 1908, the court may issue a commission for any of the following
purposes:
Section 75 to 78 deals with the powers of the court to issue commissions and detailed provisions has been made in
Order 26 of the code. The power of the code to issue commission is discretionary and can be exercised by the court
for doing complete justice between the parties. It can be exercised by the either on application by a party to the suit
or of its own motion(suo motu).
 Examination of witnesses
 Perform a local investigation
 For adjustment of accounts
 To do a partition
 To hold investigation
 For conducting a sale
 For the performance of a ministerial act.[4]
1. Examination of witnesses
Issuing of commission for the purpose of examination of witnesses is guided by Sections 76 to 78 and by Rules 1 -
8 of Order 26.[5] Generally the examination of witnesses is done in an open court. The evidence of the witnesses is
examined by cross - examination and recorded in the presence of all. However sometimes it may happen where the
witness may not be able to come and appear in the court. The reasons for the inability to come to the Court must be
reasonable.
Similarly in the case of Vinayak Trading Co. v. Sham Sunder & Co., the court had issued a commission for the
recording of the statement of the witness, as the court had apprehended danger to the life of the witness if he
becomes compelled to come to court.[8]
2. Perform a local investigation
This is covered by Rules 9 and 10 of Order 26 of the Code of Civil Procedure.[9] Courts can issue commission
where it finds that there is a need to:
To get a proper clarity regarding a matter in dispute; &
To get a proper valuation of the property in dispute if any, or if any damages or mesne profits is involved in the
claim of a suit, then finding the exact amount for the same.[10]
The main reason to conduct a local investigation by issuing a commission is to find out and obtain evidences which
would bring clarity and help the court in determining the case. The investigation is performed where the evidences
are of peculiar in nature and which can only be ascertained by visiting and conducting an investigation at the spot.
[11] In the case of Southern Command Military Engg. Services Employees Coop. Credit Society v. V.K.K.
Nambiar, the court had to issue a commission to find out whether the tenants had really occupied the premises in
dispute of the suit. This was a peculiar situation which can only be ascertained by visiting the place and conducting
investigation.[12]
3. Adjustment of accounts
Rules 11 and 12 of Order 26 of the Code of Civil Procedure, 1908 guide the action of conducting an investigation
by the Court by issuing a commission to examine and for the adjustment of accounts.[13] The Court issues gives
necessary instructions to the commissioner and the reports provided by the Commissioner shall then be deemed to
be evidence in the Court.[14]
4. To do a partition
This is guided by Rules 13 and 14 of Order 26 of Code of Civil Procedure, 1908.[15] In this case, the Court issues
a Commission when a preliminary decree of partition of an immovable property has been passed by the Court. The
duty of the Commission is to make the partition according to the guidelines provided by the decree. The
Commissioner then divides the property into the required number of parts and then allots the shares to the parties.
After partitioning and allotting the parts of the property to the rightful owners, the Commissioner prepares a report
and provides it to the Court. After allotting, if any party objects or is unsatisfied of something, the Court hears their
objections and passes a final allotment decree.[16]
5. To hold investigation
Rule 10 - A of Order 26 of the Code of Civil Procedure, 1908 guides this cause of issuing a commission.[17] When
the Court finds that the issue of a case deals with any peculiar dispute which requires a scientific investigation and
which cannot be successfully conducted in the Court premises, the Court issues a commission to investigate into
the matter and inquires into the matter.
6. To sell property
This is guided by Rule 10 - C of Order 26 of the Code of Civil Procedure, 1908.[18] The Court issues a
commission when the Court requires selling a movable property on which the Court has custody and on which a
case is pending. The selling of the property becomes necessary if the property cannot be properly preserved or if
the court deems the selling necessary in the interest of justice. The Commissioner is directed to sell off the property
and submit the report of the sale to the Court.
7. For the performance of a ministerial act
The statute guiding this is Rule 10-B of the Code of Civil Procedure, 1908.[19] The Court issues a Commission
when a requirement of the performance of a ministerial act comes. Ministerial Acts constitutes works like
accounting, calculation and works of the same nature. The ministerial acts do not require the application of judicial
mind and if done by the Court, it would lead to wastage of Court’s precious time. The Court issues a commission
who would perform all the ministerial acts as required and after completion the Commissioner shall provide the
report to the Court.[20] The Commissioner does not perform any judicial acts and does only the ministerial acts for
which the Commission had been issued by the Court.[21]
End-notes:
Padam Sen v. State of UP, AIR 1961 SC 218
Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802
Code of Civil Procedure, 1908, Sections 75 - 78
Code of Civil Procedure, 1908, Section 75
Q 6. Explain the principles of Res subjudice contained in section 10 of CPC.
Meaning
Res means every object of right that forms the subject matter in a particular case. In Latin, the term Sub-judice
means ‘under a judge’ or in other words, a matter ‘under consideration’. It means a cause that is under trial or
pending before a court or judge. The doctrine of res-judicata prevents the trial of a suit which is already pending in
a court of competent jurisdiction. When the same parties file two or three cases in the same matter, the competent
court has the power to stay proceedings of another court. The primary aim is to prohibit the courts of concurrent
jurisdiction from simultaneously entertaining two parallel litigations.
Nature, Scope and Objective
The principle of res sub-judice prevents the court from proceeding with the trial of any suit in which the matter in
issue is directly or substantially the same with the previously instituted suit between the same parties and the court
where the issue is previously instituted is pending has the power to grant the relief sought.
This rule is applicable to the trial of the suit and not the institution. It does not restrict the court from passing
interim orders like injunction or stay. However, it applies to revisions and appeals.
The purpose behind this rule is to prevent multiplicity of cases in courts. It is also sought to prevent the plaintiff
from getting two separate decisions from different courts in his favour or two contradictory judgements. It also
ensures to protect the litigant from unnecessary harassment. The policy of law is to restrict the plaintiff to one
legislation, thus obviating the possibility of two conflicting verdicts by one and the same court in respect of the
same relief.
Meaning of suit
The word suit has not been defined anywhere in the Code, but it is a proceeding which is commenced by
presentation of a plaint. In Hansraj Gupta and Ors. vs. Official Liquidators of the Dehra Dun-Mussoorie Electric
Tramway Co.Ltd., the Privy Council has defined the expression “suit” as a civil proceeding instituted by
presentation of a suit.
In Pandurang Ramchandra vs. Shantibai Ramchandra, the Supreme Court has stated suit is to be understood to
apply on any proceeding in a court of justice by which an individual pursues that remedy which the law affords.
Conditions
Section 10 of the Civil Procedural Code, 1908 deals with the conditions required to apply the principle of res sub
judice. The conditions in the process of application of res sub-judice are:
 Where the matter in issue is same
Section 10 clearly states that the matter in issue in both the suits must be directly or substantially be the same.In
other words there must be two suits one that is previously instituted and another that is subsequently substituted.
The issues of both the suits should be same to get the benefit of this principle, it is not sufficient if only one or two
issues are common. In the circumstances were the entire issues are not the same, the court may exercise its power
under Section 151 and stay the trial in a subsequent suit or the trial of the suit may be consolidated. The power of
courts to stay the trial under Section 151 is discretionary in nature and can be exercised only when there is an
abuse of process of court and if it defeats the ends of justice.
According to Indian Evidence Act, 1872 “matter in issue” are of two kinds:
Matter directly and substantially in issue– Here “directly” means immediately i.e. without any intervention. The
word “substantially” implies essentially or materially.
Matter collaterally and incidentally in issue– It is just contrary to the matter directly or substantially in issue.
 Where the parties in suits are same
The two suits should have the same parties or their representatives.
 Where the title of the suit is same
The title of both the suits for which the parties are litigating should also be same.
 Where the suit must be pending
The former suit must be pending in the court while the latter suit is instituted. The word pending is for the
previously instituted suit, where the final decision has not been arrived at.
 In a competent court
Section 10 also specifies that the former suit must be pending before a court which is competent to carry out the
trial. If the former suit is pending before an incompetent court, no legal effects can flow from it.
Illustrations:
 ‘X’ and ‘Y’ decide to enter into a contract for the sale of machine. ‘X’ is the seller and ‘Y’ is the
purchaser. Y defaulted in paying the amount of the sale to X. X first filed a suit for recovery of the
entire amount in Bangalore. Subsequent to this, X filed another suit at Bombay High Court demanding
Rs. 20,000 as outstanding balance. In X’s suit Y took the defence that X’s suit should be stayed since
 both the suits are on similar issue. However court of Bombay held that since X’s first suit and the
second suit have similar issues similar to the first suit, the subsequent suit is liable to be stayed. 
What is the Rule of sub judice?
The phrase Res Sub judice is Latin maxim which means the “under judgment”. The rule of the sub judice is based
on the public policy which prohibits the plaintiff to file two parallel cases on the same subject matter and restricts
the chances of having two contradictory judgments by the two courts. The purpose of the doctrine of Res Sub
judice is to prevent a multiplicity of the proceedings and to refrain two conflicting decisions. The doctrine bars the
parallel trial of the suit where the matter is pending to adjudicate in the former suit. but it does not restrict in filling
the subsequent suit.
How the Rule of Res Sub Judice originated?
We did not find the direct origin of the doctrine of Res Sub Judice. The roots of this rule can be found in Roman
law. Under Roman Law, this doctrine was originated from the doctrine of exception rei judicatae which means the
“previous judgment”.
In the ancient history importance of this rule was also understood by both Hindu and Muslim Jurists. Under Hindu
Ancient Law Rule of the sub judice was popularly knowns as the Purva Nyaya or former Judgment.
Where we can find this rule in India?
The doctrine of Res sub judice is not directly defined in the Civil Procedure Code, 1908. But principles of Res sub
judice can be found in Section 10 of CPC. Section 10- Stay of suit deals with the concept of Res Sub Judice.
What is Section 10 of the Civil Procedure Code, 1908
Provision
10. Stay of suit.— 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 have jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or
continued by the Central Government and having like jurisdiction, or before the 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
Section 10 of CPC states that no court will initiate the trial of any suit if the issues are directly or substantially
related to the previously instituted suit between the same parties or parties litigating on behalf of them under the
same title and the matter is pending before the court having the competent  jurisdiction in the territory of India or
any court beyond the limits of India established by central governments having the same jurisdiction or before
supreme court. Section. If parallel suits come before the competent court, section 10 gives the power to put a stay
on the proceedings in another court. Section 10 prohibits the trial of parallel litigation where the same cause of
action arises between the same parties on the same subject matter.  This section is inserted in the CPC with the
purpose that the defendant should not suffer twice for the same offense. 
What is the objective behind inserting section 10?
1. To prevent parallel litigation in two different courts between the same parties on the same subject matter.
2. To prevent wastage of the court’s resources and time
3. To avoid two contradictory Decisions on the same subject matter
4. To reduce the burden on the courts
5. To protect the rights of the other party.
6. To avoid unnecessary delay
What is the scope of Section 10
The scope of section 10 is clear, unambiguous, definite & Mandatory [1]. The word ‘shall’ in the provision makes it
mandatory. Section 10 does not require that matter in the issues of two suits should be the same but it requires that
matter should be directly or substantially be the same. Stay of proceedings is necessary for the court to avoid
municipality of the proceedings and harassments to the parties. Section 10 authorizes only stay on proceedings but
not a dismissal of the proceedings.. In execution proceedings, the order passed by the court in contravene to
Section 10 is not a nullity.
What are the essentials of Section 10?
1. There should be two suits
2. The suits must be between the same parties or their successors
3. The matter in the issue in the later suit must be directly and substantially the same as in the previous suits
4. Both the suits should be pending before the court of law
5. The parties must be litigating under the same title in both the suits.
If the above essentials are fulfilled, the court can stay the proceedings under Section 10 of CPC.
What are the conditions necessary for the application of Section 10?
1. Same Parties – For imposing stay under Section 10, the identity of the parties is enough. Parties in two
suits need not be the same. To apply Section 10 it is enough that previously instituted suit is between parties
under whom they or any of them claim litigating under the same title.  
2. Matter in the issue must be same – For the application of section 10, it is enough to establish that
substance of the matter in controversy in two suits are same. The  Identity of reliefs is not necessary for the
applicability of this section[2].
3. The suit must be pending – Section 10 gives the power to put stay on proceedings only if previously suit
is pending. It is a duty and responsibility on the defendant to make the court aware about pending of former
suit. But if it is pending in foreign court, then Section is not applied.
4. Title must be the same – To apply section 10, the parties must be litigating under the same title under
both suits.
5. The court should be competent – Section 10 of CPC is only applied when the previous suit is pending
before the competent court.
When court cannot apply the doctrine of Res sub judice?
1. In the case of Alimmllah vs. Sheikh[3], the court held that the rule of sub judice is not applied when issues
in both suits are distinct and different.
2. In the case of Abdul vs. Asrafun[4], the court held that rule is not applied when there are some common
issues and some different.
3. When the parties are the same but there are different issues between them.
4. It is not necessary for the applicability of Section 10 that all the issues in the prior instituted suit should
also be issued in the later suit.
Difference between Res Sub Judice and Res Sub Judicata:
Sr.
n. Res Sub Judice Res Judicata

1 This Rule is mentioned in Section 10 of CPC. This Rule is Mentioned in Section 11 of the CPC

2 It is not directly defined in CPC It is directly defined in the CPC

There should be two suits and matter of the

previously instituted suit is still not decided  by the There are two suits in which the former suit is already
3 court decided by the court

In this, the matter in issue in both the suits must be In this,  the matter directly and substantially in issue in both
4 substantially the same the suits are actually or constructively same

In this rule, parties are litigating in both the suits In this, such parties must have been under the same title in
5 under the same title the former suit

Both suits should be between the same parties or

6 their representatives Issue are settled between the parties in the former suit

7 It apply to only suits and appeals It applies to both suits and applications

Defense of Res Judice cannot be taken in Written Defense of the Res SubJudice can be taken into Written
8 Statements Statements

It prohibits two parallel proceedings between the It prohibits the second trial of the same dispute between the
9 same parties same parties

Q 7. Discuss different kinds of properties which are not liable for attachment and sale in the execution of a
decree.
Introduction - 
Section 60(1) of the Civil Procedure Code, declares that all saleable properties are liable to attachment and sale
in execution of the decree.  It also provides that the property specified therein are exempted from attachment and
sale in the execution of a decree.
According to the general rule, all property movable and immovable properties which include agricultural land,
buildings, and shares, furniture's fixtures or movable property including money, articles etc. Owned by judgment-
debtor and judgment-debtor entitled to hold and process to the exclusion of others.
Properties which cannot be attached -
According to Section 60(1) of the Civil Procedure Code following 20 kinds of property are not liable to attachment
or sale namely - 
          (a) the necessary wearing-apparel, cooking vessels, beds and bedding of the judgment-debtor, his wife and
children, and such personal ornaments as, in accordance with religious usage, cannot be parted with by any
woman;
          (b) tools of artisans, and, where the judgment debtor is an agriculturist, his implements of husbandry and
such cattle and seed-grain as may, in the opinion of the Court, be necessary to enable him to earn his livelihood as
such, and such portion of agricultural produce or of any class of agricultural produce as may have been declared to
be free from liability under the provisions of the next following section;
          (c) houses and other buildings (with the materials and the sites thereof and the land immediately appurtenant
thereto and necessary for their enjoyment) belonging to an agriculturist or a labourer or a domestic servant and
occupied by him;
(d) books of account;
(e) a mere right to sue for damages;
(f) any right of personal service;
(g) stipends and gratuities allowed to pensioners of the Government or of a local authority or of any other
employer, or payable out of any service family pension fund notified in the Official Gazette by the Central
Government or the State Government in this behalf, and political pension;
(h) the wages of laborers and domestic servants, whether payable in money or in kind
(i) salary to the extent of the first one thousand rupees and two-thirds of the remainder in execution of any decree
other than a decree for maintenance:
Provided that where any part of such portion of the salary as is liable to attachment has been under attachment,
whether continuously or intermittently, for a total period of twenty four months, such portion shall be exempt from
attachment until the expiry of a further period of twelve months, and, where such attachment has been made in
execution of one and the same decree, shall, after the attachment has continued for a total period of twenty four
months, be finally exempt from attachment in execution of that decree;
(ia) one-third of the salary in execution of any decree for maintenance;
(j) the pay and allowances of persons to whom the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of
1950), or the Navy Act, 1957 (62 of 1957), applies;
(k) all compulsory deposits and other sums in or derived from any fund to which the Provident Funds Act, 16[1925
(19 of 1925), for the time being applies in so far as they are declared by the said Act not to be liable to attachment;
(ka) all deposits and other sums in or derived from any fund to which the Public Provident Fund Act, 1968 (23 of
1968), for the time being applies, in so far as they are declared by the said Act as not to be liable to attachment;
(kb) all moneys payable under a policy of insurance on the life of the judgment debtor;
(kc) the interest of lessee of a residential building to which the provisions of law for the time being in force relating
to control of rents and accommodation apply;
(l) any allowance forming part of the emoluments of any servant of the Government or of any servant of a railway
company or local authority which the appropriate Government may by notification in the Official Gazette declare
to be exempt from attachment, and any subsistence grant for allowance made to any such servant while under
suspension;
(m) an expectancy of succession by survivorship or other merely contingent or possible right or interest;
(n) a right to future maintenance;
(o) any allowance declared by any Indian law to be exempt from liability to attachment or sale in execution of a
decree; and

(p) where the judgment-debtor is a person liable for the payment of land-revenue; any movable property which,
under any law for the time being applicable to him, is exempt from sale for the recovery of an arrear of such
revenue.
Explanation I.
            The moneys payable in relation to the matters mentioned in clauses (g), (h), (i) (ia), (j), (l) and (o) are
exempt from attachment or sale, whether before or after they are actually payable, and, in the case of salary, the
attachable portion thereof is liable to attachment, whether before or after it is actually payable.
Explanation II.
           In clauses (i) and (ia) salary means the total monthly emoluments, excluding any allowance declared exempt
from attachment under the provisions of clause (l), derived by a person from his employment whether on duty or
on leave.
Explanation III.
         In clause (l) appropriate Government means”
(i) as respect any person in the service of the Central Government, or any servant of a Railway Administration or
of a cantonment authority or of the port authority of a major port, the Central Government;
(iii) as respects any other servant of the Government or a servant of any other local authority, the State
Government.
Explanation IV
          For the purposes of this proviso,  includes bonus, and includes a skilled, unskilled or semi-skilled laborer.
Explanation V.
          For the purposes of this proviso, the expression agriculturist means a person who cultivates land personally
and who depends for his livelihood mainly on the income from agricultural land, whether as owner, tenant, partner,
or agricultural laborer.
Explanation VI. 
       For the purposes of Explanation V, an agriculturist shall be deemed to cultivate land personally, if he
cultivates land”
(a) by his own labor, or
(b) by the labor of any member of his family, or
(c) by servants or labourers on wages payable in cash or in kind (not being as a share of the produce), or both.
(1A) Notwithstanding anything contained in any other law for the time being in force, an agreement by which a
person agrees to waive the benefit of any exemption under this section shall be void.
(2) Nothing in this section shall be deemed to exempt houses and other buildings (with the materials and the sites
thereof and the lands immediately appurtenant thereto and necessary for their enjoyment) from attachment or sale
in execution of decrees for rent of any such house, building, site or land
Q 8. What are the power of an Arbitrator? Can an arbitrator be removed by the court? If so when? Explain
An arbitral tribunal is a panel of one or more adjudicators whose function is to sit and resolve  disputes by way of
arbitration. The tribunal may consist of a sole arbitrator there may be two or more arbitrators, which includes a
presiding arbitrator.
According to section 10 of the Arbitration and Conciliation act, 1996, the parties are free to choose the number
of arbitrators to be appointed for the proceedings. If they fail to do so, a sole arbitrator is to be appointed. Section
11 talks about the appointment of arbitrators. The parties are free to agree upon a procedure for the appointment of
the arbitrators. In case of three arbitrators, each party has to appoint one arbitrator and they have to appoint a third
arbitrator who shall be the presiding arbitrator. In case either the parties or the two arbitrators fail to appoint an
arbitrator within 30 days, then upon the request of the parties, the Supreme Court or the High Court or any person
or institution designated by the courts shall appoint one. The designation of a person or institution by the Supreme
Court or the High Court may be considered as a delegation of judicial powers.
QUALIFICATIONS OF AN ARBITRATOR
 Confidence of the parties
 Impartiality
 Technical and legal qualification
 Non conflict of interest
 Adjudication of the arbitral agreement
POWERS OF AN ARBITRATOR
 The arbitrator has a power to administer an oath to the parties. It is necessary for him to act as a quasi-
judicial authority
 Power to take interim measures
 According to section 25, an arbitrator has an power to proceed to ex-parte
 Power to appoint an expert
 Power to make awards
DUTIES OF AN ARBITRATOR
 To be independent and impartial
 To fix a time and place for arbitration, which is convenient to the parties
 Duty to disclose
 Duty to efficiently resolve the dispute
 Duty to determine the rules for the procedure
POWERS AND DUTIES OF ARBITRATORS
 (1) Arbitrators shall have the duty to appoint a time and place of hearing at a convenient location in the
state of Montana and provide reasonable notice to the manufacturer and consumer of such time and place,
to conduct fair and impartial hearings, to take all necessary actions to avoid delay in the disposition of
proceedings, to maintain order and to render a final decision no later than 60 days after the department has
accepted a request for arbitration. The decision must comply with Title 61, chapter 4, part 5 and Title 27,
chapter 5, MCA. The arbitrators shall have all powers necessary to meet these ends including, but not
limited to, the following:
 (a) to consider any and all evidence offered by the parties which the panel deems necessary to an
understanding and determination of the dispute;
 (b) to request the department to issue subpoenas to compel the attendance of witnesses and the production
of documents, papers and records relevant to the dispute;
 (c) to request the department to forward a copy of all written testimony and documentary evidence to an
independent technical expert certified by the national institute of automotive excellence, to consult with
the technical expert as necessary and to request the technical expert to sit as a nonvoting member of the
arbitration panel during presentation of oral testimony;
 (d) to regulate the course of the hearings and the conduct of the parties and their counsel therein;
 (e) to hold conferences for simplification of the issues or for other purposes;
 (f) to schedule vehicle inspections, if deemed necessary, at such facility as the arbitrators determine;
 (g) to continue the arbitration hearing to a subsequent date if a party requests a continuance before hearing,
or at the initial hearing or if the panel determines that additional information is necessary in order for the
panel to render a fair and accurate decision. A continuance shall be held within five days of the initial
hearing;
 (h) to reopen the hearing at will or upon motion of either party for good cause shown at any time before
the decision is rendered; and
 (i) to permit a deposition to be taken of a witness who cannot be subpoenaed or is unable to attend the
hearing upon the application of a party and for use as evidence, in the manner and upon the terms
designated by the arbitrators.
 (2) Arbitrators shall maintain their impartiality throughout the course of the arbitration proceedings.
 (3) An arbitrator shall not be assigned to an arbitration panel if he or she has any relationship to either
party to the dispute to be decided by that panel.
 (4) There shall be no direct communication between the parties and the arbitrators other than at the oral
hearing. Any other oral or written communications between the parties and the arbitrators shall be
channeled through the department for transmittal to the appropriate individual(s) . Any such prohibited
contact shall be reported by the arbitrators to the department and noted in the case record.
Power of court to remove arbitrator.
(1) A party to arbitral proceedings may (upon notice to the other parties, to the arbitrator concerned and to any
other arbitrator) apply to the court to remove an arbitrator on any of the following grounds -
(a) that circumstances exist that give rise to justifiable doubts as to his impartiality;
(b) that he does not possess the qualifications required by the arbitration agreement;

(c) that he is physically or mentally incapable of conducting the proceedings or there are justifiable doubts as to
his capacity to do so;
(d) that he has refused or failed -
(i) properly to conduct the proceedings, or
(ii) to use all reasonable despatch in conducting the proceedings or making an award,and that substantial injustice
has been or will be caused to the applicant.
(2) If there is an arbitral or other institution or person vested by the parties with power to remove an arbitrator, the
court shall not exercise its power of removal unless satisfied that the applicant has first exhausted any available
recourse to that institution or person.
 (3) The arbitral tribunal may continue the arbitral proceedings and make an award while an application to the
court under this section is pending.
(4) Where the court removes an arbitrator, it may make such order as it thinks fit with respect to his entitlement (if
any) to fees or expenses, or the repayment of any fees or expenses already paid.
(5) The arbitrator concerned is entitled to appear and be heard by the court before it makes any order under this
section.
(6) The leave of the court is required for any appeal from a decision of the court under this section
Power of Court to remove arbitrators or umpire in certain circumstances.
(1) The Court may, on the application of any party to reference, remove an arbitrator or umpire who fails
to use all reasonable dispatch in entering on and proceeding with the reference and making an award.
(2) The Court may remove an arbitrator or umpire who has misconducted himself or the proceedings.
(3) Where an arbitrator or umpire is removed under the section, he shall not be entitled to receive any remuneration
in respect of his services.
(4) For the purposes of this section the expression "proceeding with the reference" includes, in a case where
reference to the umpire become necessary, giving notice of that fact to the parties and to the umpire.
Power of Court where arbitrator is removed or his authority revoked.
(1) Where the Court removes an umpire who has not entered on the reference or one or more arbitrators (not being
all the arbitrators), the Court may, on the application of any party to the arbitration agreement, appoint persons to
fill the vacancies.
(2) Where the authority of an arbitrator or arbitrators or an umpire is revoked by leave of the Court, or where the
Court removes an umpire who has entered on the reference or a sole arbitrator or all the arbitrators, the
Court may, on the application of any party to the arbitration agreement, either--
(a)  appoint a person to act as sole arbitrator in the place of the person or persons displaced, or
(b) order that the arbitration agreement shall cease to have effect with respect to the difference referred.
(3) A person appointed under this section as an arbitrator or umpire shall have the like power to act in the reference
and to make an award as if he had been appointed in accordance with the arbitration agreement.
Q 9. When once time has begun to run. No subsequent disability to sue can stop it . Discuss
Section 9: Continuous running of time
Where once time has begun to run, no subsequent disability or inability to institute a suit or to 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.
Notes
This section applies not only to suits but to application as well. This has not been expressly provided in the section.
If at the date on which the cause of action arose the plaintiff was under no disability or inability, then time will
naturally begin to run against him because there is no reason why the ordinary law should not have full operation.
Section 9 says that once time has begun to run, no subsequent disability or inability to sue can stop its running.
This applies to a person himself as well as to his representatives-in-interest after his death.
The section contemplates a case of subsequent and not of initial disability, that is, it contemplates those cases
where the disability occurred after the accrual of the cause of action; whereas cases of initial disability have been
provided for by Section 6. A decree-holder made various applications for the execution of a decree. Each
application was within time. Then the decree-holder died. His son, who was a minor, made an application for
execution of the decree within three years after the death of his father but more than three years after the date of the
last application of the deceased father. Held, that Section 9 applies and not Section 6 and minor son’s application
for execution was time barred, it being a case not of initial but of subsequent disability.
Examples
 A right to sue accrues to P, when he is under no disability; but subsequently he becomes insane. Time runs
against P as usual, from the date of accrual of the right and his subsequent disability (viz., insanity) is no
bar to the running of time.
 A right to sue accrues to P during his minority. After 4 years he become major, but subsequently (i. e.,
something after attaining majority) he becomes insane. Time runs against P from the date of his attaining
majority and subsequent insanity does not stop the running of limitation.
  A right to sue accrues to P during his minority. P dies only one day after attaining majority and is
succeeded by his son K who is a minor. Time begins to run against K from the death of P and K’s minority
is of no avail to him because when limitation has once began to run, it cannot be suspended by any
disability subsequently arising.
 A right to sue accrues to A in 1910 and limitation for the suit commences to run against A from then. At
that time A has a minor son. A dies without suing and the right to sue survives to B. B cannot claim
extension of the time on the ground that he was a minor when the right to sue accrued, because, when once
time has begun to run, subsequent disability or inability to sue does not stop its running.
 Two brothers, A, major, and B, minor, were members of a Joint Hindu Family of which A was the Karta
and the manager. After A’s death and on attaining majority, B sues to recover a debt advanced due of the
joint family funds, which had become due in the life-time of A, claiming extension of the time on the
ground of his minority. The suit is barred by time. The period of limitation began to run from the date on
which the loan was advanced by A, the Karta of the joint family inasmuch as, being the Karta of the family
he represented B also and could have in the capacity brought the suit to recover the loan. Hence, the
subsequent disability of B cannot stop the running of time.
“Disability” meaning:
“Disability” means want of capacity of the legal qualification to act as such as have been mentioned in Section 6,
viz., minority, insanity or idiocy.
“Inability” meaning:
“Inability” means want of physical power or facility to Act. Inability assumes that the plaintiff is fully capable to
sue; there is no personal inability to sue but some extraneous circumstances render him unable to file the suit, e. g.,
illness, poverty, etc. there is no provision in law to extend the time for a person who is unable to file a suit apart
from his disability arising from his being a minor, or an idiot or insane.
Computation of period of limitation
True it is that in terms of Section 9 when time has begun to run, no subsequent disability or inability to institute a
suit or make an application stops it. But Section 9 does not provide for a computation of the period of limitation. 1
Exception
The proviso lays down that when the administration of an estate has been given to a debtor of the deceased, no
time will run against such a debtor until the administration of estate which was entrusted to him has been finished.
In such cases, the law prevents the duty of property administering the estate to come into conflict with the right of
the person to sue for the debt, the hand to give and the hand to receive is the same.
Effect of appeal on running of time
Under Section 9 time for execution of a decree starts running from the date of the trial Court decree and there is no
provision for arresting the running of limitation thereafter. But the appellate decree is the final decree and the only
decree capable of being executed after it has been passed, whether the same reverses, modifies or confirms the
decree of the Court from which the appeal was made.
Held, that in the instant case, the decree of the Second Appellate Court was the only executable decree after the
Second Appeal had been dismissed, and the decree-holder will have a fresh period of limitation from the date of
the decree of the Second Appellate Court.2
Joint effect of Sections 6, 7, 8 and 9.
The joint effect of this and previous sections is that if advantage is taken of two disabilities, they must so overlap
each other as to leave no gap of normal period between them, i. e., period which is free from all disabilities
because as soon as such an interval occurs, the time begins to run and subsequent inability or disability is
powerless to stop its running. If it is not a continuing disability from the beginning (when the cause of action
arose), or if one ceases to be under a disability even for a day, time begins to run against him and subsequent
disability of himself or after his death that of his legal representative, will not avail to save limitation. For instance,
A, a Hindu minor, is under the guardianship of his own mother Z. he is deprived of the possession of his family
estate by a trespasser Y, while he is yet a minor and under the guardianship oh his own mother Z. While yet a
1
2
minor, A dies and is succeeded to his estate by the mother, the erstwhile (former) guardian. Here, time begins to
run against the mother as soon as she succeeds to the property. If the widow of A subsequently adopts a son who is
a minor and who in consequence adopts a son who is a minor and who in consequence of the adoption becomes the
heir of A, the adopted son cannot claim extension of time.
Q 10. What are the essential requirements of an effective acknowledgment? Explain
A consideration of the terms of Section 18 of the Limitation Act shows that the essential requisites of a valid
acknowledgment are the following:
1. Acknowledgment must be made before the expiration of the period of limitation:
In other words the acknowledgment must be made after the period of limitation has begun to run and while it is
actually running. The expression “period prescribed” does not refer exclusively to the period prescribed by the first
schedule to the Limitation Act.
The expression will include any period prescribed by the Act, whether in the body of the Act or in the first
schedule. Thus, an acknowledgment may be made before the expiry of the period of limitation as extended by the
operation of section 14 of the Limitation Act. [See Kamla Prasad v. Gulzari Lai, 1954 A.L.J. 712 (F.B.)].
2. Acknowledgment of liability must be in writing:
Hence an oral acknowledgment is not sufficient. Similarly, a mere payment of a sum of money towards the debt is
not sufficient under the section although such payment may be intended as an acknowledgment of the debt.
3. Acknowledgment must be signed by the person making the acknowledgment or by his agent duly
authorised in this behalf:
An acknowledgment not so signed will not be sufficient for the purpose of this section. Thus, a telegram cannot
constitute a sufficient acknowledgment under this section as telegrams are not signed by the parties sending them.
Signature of an agent acknowledging the debt will not do unless the agent is duly authorised to make such an
acknowledgment. A general authority is of no avail. A special authority to acknowledge such debt is necessary.
4. Acknowledgment must be made by the party against whom any property or right is claimed, or by some
person through home he derives title or liability:
It is sufficient under section 18, if the acknowledgment has been made by a person against whom the right is
claimed in the suit. It is not necessary that at the time when the acknowledgment is made, such person must have
an interest in the property in respect of which the acknowledgment is given. An auction purchase derives his title
from the judgment debtor. Hence, if the judgment-debtor makes an acknowledgment of liability in respect of a
mortgage on property, the acknowledgment will be binding on the auction purchaser.
5. Acknowledgment must be in respect of particular property or right claimed in the suit or application:
An acknowledgment of liability under this section must be in respect of the particular property or right claimed in
the suit. In other words, unless it is shown that the right, acknowledged is identical with the right claimed in the
suit, the section will not apply.
Thus, where the defendant owes several debts to the plaintiff and acknowledges his liability in respect of a debt
and as it is not possible to identify the debt acknowledged with the claimed in the suit, the acknowledgment will be
ineffective under the section.
An acknowledgment of a barred debt cannot give a fresh period of limitation in favour of a creditor because one of
the essential conditions of a valid acknowledgment is that the acknowledgment must be made before the expiration
of the period of limitation.
What are the essential requisites of a valid acknowledgment? (The Limitation Act, 1963)
A consideration of the terms of Section 18 of the Limitation Act shows that the essential requisites of a valid
acknowledgment are the following:
1. Acknowledgment must be made before the expiration of the period of limitation:
In other words the acknowledgment must be made after the period of limitation has begun to run and while it is
actually running. The expression “period prescribed” does not refer exclusively to the period prescribed by the first
schedule to the Limitation Act.
The expression will include any period prescribed by the Act, whether in the body of the Act or in the first
schedule. Thus, an acknowledgment may be made before the expiry of the period of limitation as extended by the
operation of section 14 of the Limitation Act. [See Kamla Prasad v. Gulzari Lai, 1954 A.L.J. 712 (F.B.)].
2. Acknowledgment of liability must be in writing:
Hence an oral acknowledgment is not sufficient. Similarly, a mere payment of a sum of money towards the debt is
not sufficient under the section although such payment may be intended as an acknowledgment of the debt.
3. Acknowledgment must be signed by the person making the acknowledgment or by his agent duly
authorised in this behalf:
An acknowledgment not so signed will not be sufficient for the purpose of this section. Thus, a telegram cannot
constitute a sufficient acknowledgment under this section as telegrams are not signed by the parties sending them.
Signature of an agent acknowledging the debt will not do unless the agent is duly authorised to make such an
acknowledgment. A general authority is of no avail. A special authority to acknowledge such debt is necessary.
4. Acknowledgment must be made by the party against whom any property or right is claimed, or by some
person through home he derives title or liability:
It is sufficient under section 18, if the acknowledgment has been made by a person against whom the right is
claimed in the suit. It is not necessary that at the time when the acknowledgment is made, such person must have
an interest in the property in respect of which the acknowledgment is given. An auction purchase derives his title
from the judgment debtor. Hence, if the judgment-debtor makes an acknowledgment of liability in respect of a
mortgage on property, the acknowledgment will be binding on the auction purchaser.
5. Acknowledgment must be in respect of particular property or right claimed in the suit or application:
An acknowledgment of liability under this section must be in respect of the particular property or right claimed in
the suit. In other words, unless it is shown that the right, acknowledged is identical with the right claimed in the
suit, the section will not apply.
.and as it is not possible to identify the debt acknowledged with the claimed in the suit, the acknowledgment will
be ineffective under the section.
An acknowledgment of a barred debt cannot give a fresh period of limitation in favour of a creditor because one of
the essential conditions of a valid acknowledgment is that the acknowledgment must be made before the expiration
of the period of limitation.