Doctrine of RES-JUDICATA-S.11. C.P.C.

provides-"No Court shall try any

suit or issue in which matter directly & substantially in a former suit b/w same DECREE 5 Essentials- 1. Must be an adjudication. 2. Such adjudication
parties, or b/w parties under whom y or any of m claim, litigating under same must have been given in a suit. 3. determined rights of parties with regard
title, in a Court competent to try such subsequent suit or suit in which such to matters in controversy in suit. 4. Such determination > conclusive
issue has been subsequently raised, & has been heard & finally decided by nature; & formal expression of adjudication. --- 1. Adjudication-- constitute
such Court. Basis- 3 maxims - (i) 'Interest Republicae est: sit fines litium' it is a decision of a court to be a decree.2. Suit--not defined C.P.C. But in
in interest of State that litigation should not be protracted but finished. (ii)
Hansraj Vs. Dehra Dun-Mussoori Electric Tramways Co.Ltd.A.I.R.1933S.C.
'Nemo debt lis vexari pro una ct cadem causa'. -No man ought to be vexed
twice for one & same cause. (iii) 'Res-judicata pro veritah selipoter'- A judicial 63. The application as suits; e.g., proceedings under Indian Succession.
decision must be accepted as correct. 'Res' means a thing & 'judicata' means Act, the Hindu Marrjage Act, the L& Acquisition, Act, the Arbitration
already decided. Exhaustive in this Matter-- It is well established that doctrine. Act, etc.3. Rights of Parties in Controversy:. determined rights of parties
of res-judicata codified in S. 11 C.P.C. is not exhaustive. S. 11 applies only to 4. Conclusive Determination- conclusive nature & final, interlocutory
civil suits. Essential Conditions-1.Matter-in-Issue: directly & substantially in order doesn’t decide rights of parties finally is not a decree. 5. Formal
issue,actually or constructively in former suit. 2. Same Parties. 3.Same Title:
parties aforesaid litigated under same title in former suit. 4.Competent Court- Expression-- requirements of form with. Misdescription of decision as
which decided former suit been a Court competent to try subsequent suit. 5. an order, which amounts to a decree. Kinds of Decree- I. Preliminary
Suit Heard & Finally Decided by Court. Obiects of Res-Judicata- 1. End of decree; 2. Final decree; & 3. Partly preliminary & partly final decree. 1.
Litigation.2. Protection Against Double Zeopardy. 3. Court Decision Correct & Preliminary D- rights of parties with is passed in cases which court has
Final. --Rule of res-judicata applies 'to execution proceedings. Bhaskar first to adjudicate upon rights of parties & has then to stay its h&s for
Traders Vs. -M. Kunhiraman, A.I.R: 1988 Ker. 227. Similarly, principle of
the time being, until it is in a position to pass a final decree in suit. 2.
constructive res-judicata is also applicable to execution proceedings & was
held so applicable even before said Explanation was inserted in 1976: Arjun Final Decree.-(i) When within prescribed period no appeal is filed against
Singh Vs. Mohindra Kumar, A.I.R. 1964 SC 993; Mohanlal Vs. Krishna, AIR decree or matter decided by decree of highest court; & ii- When decree
1953 SC 65. ---Res-sub-judice relates to all matter pending judicial inquiry or trial so far as regards the court passing it, completely disposes of suit. 3.
(Sub-judice). S. 1-0 bars trial of a suit in which matter directly and Partly Preliminary & Partly Final Decree. - e.g., in suit for possession of
substantially in issue is pending adjudication. DECREE> Formal expression immovable property with mesne profits. court- (a) Decrèes possession of
of an adjudication which, so far as regards court expressing it, the property; & (b) Directs an inquiry into mesne profits > Order 20, Rule
conclusively determines rights of parties. It shall be deemed to include 12 – Suits for possession and mesne profit. Smt. Subashini v. S.
rejection of a plaint & determination of any question within S. 144, but
Sankaramma (2018). Order 34, Rule 4 –Suits for the sale of the
shall not include: a- Any adjudication from which an appeal lies as an
mortgaged property. Caselaw Kanti Ram v. Kutubuddin Mahomed
appeal from an order, or b- Any order of dismissal for default.
(1894).

JURISDICTION OF CIVIL COURTS-Acc to S. 9, " Court shall (subject Fundamental Rules of Pleading -Acc.'to Order VI Rule 2 of C.P.C., 1. Every
to provisions here in contained) have jurisdiction to try all suits of a civil Pleading must State Facts & not Law- a-affirmative(state facts) or b-
nature excepting suits of which ir cognizance is eir expressly or negative(not state law.) implication should not be stated in a pleading- (a)
impliedly barred." Conditions- 1. Suit of Civil Nature- ‘Civil’ meaning, it Provisions of law;(b) Conclusions of law; & (c) Conclusions of mixed
pertains to private rights & remedies of a citizen as distinguished law & facts.-- For Ex. - Union of India in its written statement denied service
from criminal, political, etc. 2. Nature & Scope of Suit of Civil Nature of notice U/S. 80, C.P.C., but did not plead that suit was premature &,
expression private rights & obligations of a citizen. Political & therefore, not maintainable, it was held that averments in plaint itself
religious questions are not covered Example-Suits of Civil Nature- (i)
established beyond doubt that institution of suit was premature. It was
Suits relating to right to property; (ii) Suits relating to right to worship;
not necessary for defendant to. recopulate those facts & consequences
(iii) Suits relating to taking out of religious procession; (iv) Suits relating
to right to share in offerings;(v) Suits for damages for civil wrongs therefrom. Exceptions-- (i) Foreign Law- court not bound to judicial
Suits Not of Civil Nature- i-Suits involving principally caste questions; (ii) notice of Foreign laws. (ii) Custom-Court not bound - judicial notice of
Suits involving purely religious rites or ceremonies; (ini) Suits for customs or usages of trade & therefore, they, too, must be pleaded like
upholding mere dignity or honour; (iv) Suits for recovery of voluntary any other fact. (fil) Mixed Questions of Law & Fact- stated in pleadings &
payments or offerings: (v) Suits against expulsion from caste: etc. 2--- cannot be allowed to be raised subsequently.(iv) Legal Pleas--rule
Kinds of Jurisdiction- 1. Jurisdiction over Subject-Matter: Different against stating law in pleadings does not exclude 'legal pleas to a suit, or
Courts has authority to try certain suits.of non-contentious types, e.g., pleas denying legal rights claimed by opposite party. (v) Inferences of
loan on promissory notes or bonds, recovery of price of goods supplied Law_- Order VI, Rule 7, C.P.C., inference of law should not be stated in
or work done but no jurisdiction to try suits for partition or for plaints or written statements yet a departure from this rule shall be
injunction or for immovable properties or for specific performance of a condoned. -- 2. Every Pleading must State all Material Facts & Material
contract. District Judge alone has jurisdiction in respect of Facts Only (i) Every Pleading must State Material Facts Only-- Test for
testamentary & cases of guardianship. 2. Local or Territorial
Determining Material Facts- (a) In a suit for libel (b) In a suit for injunction
Jurisdiction- Government fixed & beyond that limit it has no jurisdiction.
District Judge has jurisdiction within his district. 3. Pecuniary (c) In a suit for negligence. --(ii) Every Pleading must State all Material
Jurisdiction- Munsifs to value Rs. 25,000 in UP, Civil Judges above Facts Supreme court has laid down in S.N. Balkrishan Vs. Georgé
25,000Rs. High Court has no pecuniary limitations. Munnalall Vs. State of Fern&ez AIR 1969; omission of single material fact leads to incomplete
Punjab,AIR 1916 Punj: 59 (60). 4. Original or Appellate Jurisdiction- cause of action & statement of claim becomes bad. ---- Calcutta High
Some of Courts exercise only original jurisdiction e.g., Munsif, & Judges Court decision in S. Chatterjee Vs. Nilima Chatterjee, A.I.R. 1970 Cal, suit
of Small Causes Courts. Civil Judges, District Judges & High Courts divorce on ground of adultery.
have been conferred appellate powers.

ARREST BEFORE JUDGMENT- Acc Rule I Order 21, at any stage of

Powers of Court to Issue Commissions- Ss. 75 to 78 -detailed
suit, court is satisfied, either by affidavit or otherwise-a) defendant with
intent to delay plaintiff, or to avoid any process of court, or to provisions under Order 26 C.P.C. - evidence of à witness in an action,
obstruct or delay execution of any decree that may be passed against whether he is a party to suit or not, should be taken in open court and
him.- i) Has absconded or left local limits of jurisdiction of court, or. tested by cross-examination. Inability to attend court on grounds of
ii) Is about to abscond or leave local limits of jurisdiction of court, or iii) sickness or infirmity or detriment to public interest may justify issue of a
Has disposed of or removed from local limits of jurisdiction of court commission. S. 75, court issue a commission for: 1. To Examine
his property or any part thereof, or (b) That defendant is about to leave Witnesses Ss. 76-78; Order 26 Rules I-8. court issue commission for
India under circumstances affording reasonable probability that examination on interrogatories 2. For Local Investigation Acc. to Rules 9
plaintiff will or may thereby be obstructed or delayed in. Where Arrest & 10, court may, in any suit, issue a commission to such person as it
Before Judgment not Allowed-An order for arrest of defendant before thinks fit directing him to make local investigation and to report thereon
judgment cannot be obtained in any suit for land or immovable property for purpose of (a) elucidating any matter in dispute, or (b) ascertaining
specified in Clauses (a) to (d) of S. 16 of Code. 2. ATTACHMENT market value of any property or amount of any mesne profits or damages
BEFORE JUDGMENT—Acc. to Rule S Order 38, where, at any stage of a
or annual net profits. e.g.;, whether suit premises is really occupied by
suit, court is satisfied, by affidavit or otherwise, that defendant, with
intent to obstruct of delay execution of any decree that may be passed tenant or by strangers. 3.To Examine Accounts- Acc. to Rules 11 and 12,
against him, (a) is about to dispose of whole or any part of his property, in any suit in which an examination or adjustment of accounts is
or (b) is about to remove whole or any part of his property from focal necessary. court may issue a commission to such person as it thinks fit
directing him to make such examination or adjustment. 4. To Make Partition-
Acc to Rules 13 & 14, where a preliminary decree for partition of immovable
property has been passed, court may issue a commission to such person as it
thinks fit to make a partition or separation according to rights as declared in such
decree. 5. For Scientific Investigation--According to Rules 10-4, where any
question arising in a suit involves any scientific investigation which cannot, in
opinion of court, be conveniently conducted before court. 7.For Performance of
Ministerial Act- Rule10-B, suit involves performance of any ministerial act which
cannot, in opinion of court, be conveniently performed before court Amendment
Act 1976, Rules 10-A to 10-C. 8.Commissions for Foreign Tribunals--Rules 19-
22. High Court is satisfied that a foreign court wishes to obtain evidence of a
limits of jurisdiction of court; court may direct defendant, within in order,
to produce and place at disposal of court, when required. Court may
also in order direct conditional attachment and estimated value thereof.
If an order of attachment is made without. complying with provisians of
Rule 5(1), such attachment shall be void. Before an order of attachment
can be made, court must be satisfied about following two conditions- (i
That defendant is about to dispose of whole or any part of his property;
& (ii) That disposal is with intention of obstructing or delaying execution
of any decree that may be passed against him.

EXECUTION of a Decree -signifies enforcement or giving effect to the

judgment or order of court of justice vide Halsbury's Laws of Engl&, 4th Powers of Appellate Court- S. 107 & Rules 23 to 29 & 33 of Order 41
Edn., Vol. 17, P. 232 : Concise Oxford Pictionary (1990).p.408. Who provide the powers of appellate court while hearing first appeals. 1. To
can Apply for Execution of a Decree- (i) The decree-holder vide,R.10.(if). Determine a Case Finally S. 107 (1)(a) & Rule of Order 41. enable the
The legal representatives of the decree-holder. if the decree-holder is appellate court to dispose of a case finally.- 2. To Remand a Case Trial
dead vide R. 10. (iii) Any person claiming under the decree-holder vide Court-Remand means to send back. S. 107 (1) (b), Rules 23 & 23-A. 3.
S.146. (iv) The transferee of the decree-holder. Modes of Execution of a To Frame Issues & Refer them for Trial- Where the lower court has
Decree 1. Delivery of Property--(a) Movable Prop.- S.51.(a), Rule 31, it omitted (i) to frame any issue; or (ii) to try any issue; or (iii) to
may be executed (i) by seizure & delivery of the property; or (ii) by determine any question of fact, which is essential to the right decision of
detention of the judgment-debtor; or (iil) by the attachment of his property;
the suit upon merits, 4. To Order to Take Additional Evidence-
or (iv) by attachment & detention both vide R.31 The words specific
appellate court shall decide an appeal on the evidence led by the parties
movable do not include money, & therefore. a decree for money cannot be
executed under Rule 31 vide: Menon Vs. Menon, AIR 1914 Mad 572.--b) before the trial court 5. To Modify Decree Rule 33 of Order 41
Immovable Property—Acc. to Rules 35 & 36-where the decree is for empowers an appellate court to make whatever-order it think fit, not
immovable property in the possession of the judgment-debtor or in the only as between the appellant 6. To Execute all the Functions as the
possession of the person bound by the decree. 2. Attachment & Sale of Courts of OriginalJurisdiction-- which the court of original jurisdiction is
Property or by Sale without Attachment-- S. '51(b), court is empowered to entitled to do. 7. To Pass any Decree & Order- Order 41, Rule 33 says
attach property if it is situated with in the local limits of the jurisdiction of that " appellate Court shall have power to pass any decree & make any
the court vide : Raoof Vs. Lakshmipathi, AIR 1969 wad 268. The Words order which ought to have been passed or made & to pass or made
attachment & sale in clause (b) of S. Si are to be read disjunctively vide : such further or other decree or order as the case may require, The
Amulya Ch&ra Vs. Pashupati nath, AIR 1951 Cal 48 (FB). 3.Arrest & Supreme Court in M/s. Bihar Supply Syndicate Vs. Asiatic Navigation,
Detention-- S. 51(c) one of the mode of executing decree is arrest & A.I.R. 1993 SC 2054 has analysed this provision.
detention in civil prison of the judgment-debtor. However, CI. (c) should be
read subject to the proviso to S. 51. 4.Appointment of Receiver S.51
CI(d), Execution by appointment of a receiver is known as equitable
execution & is entirely within the discretion of the court. 5.By such Other
Manner as the Nature of the Relief Granted may Require According to
S.51, the fifth & the last mode of execution is based on equity & is ir the
discretion of the court.