Jai Ganeshaya Namaha

Important Questions and Answers on LLB 6th semester subject Civil Procedure Code and
Limitation Act, 1908

What do you understand by Order ? How does it differ from a Decree ? Can an Interim
Order be issued ?
Section 2(2) of the Code of Civil Procedure, 1908: "decree" means the formal expression of an
adjudication which, so far as regards the Court expressing it, conclusively determines the rights
of the parties which regard to all or any of the matters in controversy in the suit and may be
either preliminary or final. It shall be deemed to include the rejection of a plaint, the
determination of any question within section 144 and an order under rule 60, 98, 99, 101, or 103
of Order XXI, but shall not include __
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default.
Explanation.__ A decree is preliminary when further proceedings have to be taken before the
suit can be completely disposed of. It is final when such adjudication completely disposes of the
suit. It may be partly preliminary and partly final:
A decree is an authoritative order issued by a government or judicial authority. Commands with
legal force are legally binding. In addition to courts, the executive and administrative branches
of government can issue decrees. A decree can be modified under certain circumstances, such
as a change in the parties' circumstances or a mistake in the original decree.
Section 2(14) of the Code of Civil Procedure, 1908: "order" means the formal expression of any
decision of a Civil Court which is not a decree; A comparison chart between Decree and Order
is shown below.
Decree Order
The formal proclamation of the The legal announcement of the
adjudication by the court of law judgement taken by the court,
explaining the rights of the defining the relationship of the
parties concerned, judgment of parties, in the proceedings, is
the suit, is called decree. called an order.
A decree is given in a suit initiated On the contrary, an order is given
by the presentation of a plaint. in a suit initiated by the
presentation of the plaint,
application or petition.
A decree is concerned with the whereas the order takes into
substantive legal rights of the account the procedural rights of
contesting parties. the parties concerned.
While a decree is defined under Order is defined under section 2
section 2 (2) of the Code of Civil (14) of the Act.
Procedure Act, 1908
In a decree, the rights of the As against this, in case of an order,
plaint and defendant are clearly may or may not clearly ascertain
ascertained. the rights of the plaint and
defendant.
There is only one decree in a There can be many orders in a
suit. suit.
A decree can be preliminary, An order is always final.
final or partly preliminary and
partly final.
A decree is usually appealable, Conversely, an order is appealable
except when it is specifically and non-appealable.
barred by law.
Decree Order

Difference between Judgement and Decree

Difference between Judgement and Decree
Judgment Decree
A formal decision made by a court A formal order issued by a court
of law of law
In light of the evidence presented In accordance with the
and the applicable laws agreement of the parties
A judge or a bench of judges Judged or judicially endorsed
makes the decision
A final and binding decision for all Final and binding on the parties
parties involved
A higher court can hear the appeal It is usually not appealable

Interim aka Interlocutory orders are those which are passed during the pendency of the suit
or proceedings (lis pendens) and the rights, liabilities of the parties are generally not
substantially decided as per the suit.
Illustration- If the suit relates to a demolition of a building, and then an interim order may be
passed to stop the demolition, until the final order relating to the property is passed.
Court’s inherent power may be described over an intricate analysis of Section 151 of the Civil
Procedure Code, 1908, where the two considerations laid down are- exercise of powers to meet
ends of justice and to prevent abuse of process.
Interim Order Provisions
 Court Payment (vide Order 24)
 Security of Costs (vide Order 25)
 Commissions (vide Order 26)
 Judgement preceded by Arrest (vide Order 38)
 Attachment before a judgement (vide Order 38)
 Injunction (vide Order 39)
 Interlocutory Orders (vide Order 39)
 Receiver (vide Order 40)
Injunction
Injunction and law relating to the same is dealt with under:
 Section 36-42 of the Specific Relief Act, 1963.
 Section 94 (c) and 94 (e) of the Code for Civil Procedure, 1908.
 Order 39 of the Code for Civil Procedure.
What do you understand by “Foreign Judgment” ? Explain.
Section 2(5) of the CPC – “foreign court” means a Court situate outside India and not
established or continued by the authority of the Central Government.
Section 2(6) of the Code of Civil Procedure, 1908 (CPC) – “foreign judgement” means
judgement of a foreign court.
Jurisdiction of a Foreign Judgement
In Sankaran Govindan vs Lakshmi Bharathi (1974), the Supreme Court held that it is a well-
established proposition in private international law that unless a foreign court has international
jurisdiction, a judgement that’s delivered by that court will not be recognised or enforced in
India.
Foreign Judgement When Not Binding
However, there are some situations when a foreign judgement is not conclusive in India, and
these situations are:
1. Foreign Judgement Not by a Competent Court
It is a fundamental principle of law that a judgement or order passed by a court with no
jurisdiction is null and void. Thus, for a foreign court’s decision to be binding on the parties in
India, it must be rendered by a court of competent jurisdiction.
2. Foreign Judgement Not on Merits
A foreign judgement on the merits of the case must have been rendered for it to serve as res
judicata. A judgement is said to be given on merits when, after taking evidence and applying
mind to the truth or falsity of the plaintiff’s case, the judge decides the case one way or the
other.
3. Foreign Judgement Against International or Indian Law
A decision based on an incorrect understanding of international law or a refusal to recognise
Indian law where such law is applicable is not conclusive (which cannot be contradicted).
However, the error must be visible on the surface of the proceedings.
4. Foreign Judgement Opposed to Natural Justice
A court’s decision must be obtained after the proper judicial procedure has been followed. The
minimum requirements of natural justice must be met, such as the judgement being delivered
fairly, without bias, in good faith, and after both parties have been heard. A judgement rendered
without giving the defendant notice of the suit or allowing him a reasonable opportunity to
present his case is contrary to natural justice.
5. Foreign Judgement Obtained by Fraud
A well-established principle of private international law is that a foreign judgement obtained
through fraud will not serve as res judicata. It is a well-known proverb that fraud and justice
never coexist.
6. Foreign Judgement Founded on a Breach of Indian Law
If a foreign judgement is based on a violation of any law in force in India, that foreign judgement
would not be enforced in India. Every case heard by an Indian court must be resolved in
accordance with the Indian laws.
In Satya vs Teja Singh (1974), the Supreme Court of India held that it is implicit (implied or
understood) that foreign law and foreign judgement would not offend against the Indian public
policy.

What is Res Judicata ? Point out the circumstances of its application.

Discuss the doctrine of ‘Res Judicata.’ How does it differ from constructive res judicata ?
Explain.

Res judicata is a legal principle that prevents a court from taking action in a case that
another court has already decided.
Section 11 of The Code of Civil Procedure: Res Judicata. No Court shall try suit or issue in
which the matter directly and substantially in issue has been directly and substantially in
issue in a former suit between the same parties, or between parties under whom they or any of
them claim, litigating under the same title, in a Court competent to try such subsequent suit or
the suit in which such issue has been subsequently raised, and has been heard and finally
decided by such Court.
In Latin, Res Judicata means a matter that has been judged.
Res is latin for “thing” or “matter.” In the common law, it can refer to an object, interest, or
status, as opposed to a person.
“The principle of res judicata is based on the need of giving a finality of judicial
decisions. What it says is that once a res is in judicata, it shall not be adjudicated
again. Primarily it applies as between past litigation and future litigation.
When a case has already been decided and the final judgement been given such that the matter
is no longer subject to appeal, the doctrine of res judicata bars or precludes continued litigation
of such matter between the same parties.
This ensures smooth functioning of the judiciary.
Res Judicata aims to prevent;
 Injustice to the parties of a case that has been supposedly concluded by providing
closure to a judgment and precluding (to prevent something from happening or
somebody from doing something) any further claims.
 Unnecessary waste of court resources.
 Multiplying of judgments as further claims would lead to several varied judgements on
the same matter which will lead to confusion.
 Recovery of damages from the defendant twice for the same injury.
Doctrine of res judicata or rule of conclusive judgement (It means a final judgment already
decided between the same parties or their privies - a person having a part or interest in any
action, matter, or thing - on the same question by legally constituted court having jurisdiction is
conclusive between the parties, and the issue cannot be raised again.) is based on the
following three maxims:
 Nemo debet lis vexari pro eadem causa– no man to be vexed twice for the same cause.
 Interest republicae ut sit finis litium– it is in the interest of the state that there should be
end to litigation.
 Re judicata pro veritate occipitur– a judicial decision should be accepted as correct.
The pre-requisites which are necessary for Res Judicata are:
1) There must be a final judgment;
2) The judgment must be on the merits;
3) The claims must be the same in the first and second suits;
4) The parties in the second action must be the same as those in the first, or have been
represented by a party to the prior action.
Exceptions to Res Judicata
 Habeas corpus petitions: The writ of Habeas Corpus is an issue against the unlawful
confinement of any individual. It is immune from the rule of res judicata, which gives that
issue once chosen or declined on merits cannot be re-agitated in the equivalent or any
court. In the case of Sunil Dutt v Union of India, it was held that habeas corpus, filed
under fresh grounds and changed circumstances will not be barred by a previous such
petition.
 Res Judicata does not restrict the appeals process, which is considered a linear
extension of the same lawsuit as the suit travels up (and back down) the appellate court
ladder. Appeals are considered the appropriate manner by which to challenge a
judgment rather than trying to start a new trial.
 Dismissal of writ petition in limine (in limine. (in lim-in-ay) from Latin for "at the threshold,"
referring to a motion before a trial begins. A motion to suppress illegally obtained evidence
is such a motion.): In Pujari Bai v Madan Gopal, it was held res judicata not applicable
when dismissed in limine (without speaking orders) or on grounds of laches or availability of
alternate remedies.
 Matter collaterally and incidentally in issue doesn’t operate as res judicata as discussed in
the case of Sayed Mohammad v Musa Ummer.
 Res judicata not applicable to Income Tax proceedings or fixing of fair rent
proceedings. It was discussed in the case of Instalment Supply private limited vs. Union of
India where the Supreme Court held that assessment of each year is final for that year and it
will not govern in the subsequent years as it it determines the tax only for that particular
period.
 In the case of Public Interest Litigation, the doctrine of res judicata does not apply. As
the primary object of res judicata is to bring an end to litigation so there is no reason to
extend the principle of public interest litigation.

On what grounds can a former suit be set aside with reference to principle of res-judicata
?
The principle of res judicata, which means "a matter already judged," is a legal doctrine that
prevents the same case from being re-litigated between the same parties once a final judgment
has been reached. It promotes the stability and finality of judicial decisions. However, there are
certain grounds on which a former suit can be set aside, even in the context of res
judicata. Here are a few common grounds:
 Fraud or collusion: If it can be proven that the earlier judgment was obtained through
fraud or collusion between the parties involved, the court may set aside the judgment.
For example, if it is discovered that one party concealed crucial evidence or misled the
court, the judgment may be considered void.
 Lack of jurisdiction: If the court that rendered the earlier judgment lacked jurisdiction
over the subject matter or the parties involved, the judgment may be set aside.
Jurisdictional issues can arise if, for example, the court did not have authority over a
particular type of case or if the defendant was not properly served with the lawsuit.
 Violation of natural justice: If it can be shown that the earlier judgment was reached
without giving one of the parties a fair opportunity to present their case, it may be set
aside. Natural justice principles include the right to be heard, the right to a fair trial, and
the right to an unbiased decision-maker.
 Subsequent discovery of new evidence: If new and important evidence is discovered
after the earlier judgment that could not have been reasonably discovered or produced
during the original trial, it may be possible to set aside the judgment. The new evidence
must be material and have the potential to significantly impact the outcome of the case.

How does it differ from constructive res judicata ? Explain.

Constructive Res Judicata:
Rule of constructive res judicata is engrafted under Explanation IV of Section 11 of the Code.
It is an artificial form of res judicata and provides that if a plea could have been taken by a party
in a proceeding between him and his opponent, he should not be permitted to take that plea
against the same party in a subsequent proceeding with reference to the same subject-matter.
What is the meaning of taking a plea?
a statement in which a person who has been accused of a crime says in court that he or
she is guilty or not guilty of the crime. The defendant entered a plea of not guilty. a guilty
plea.
That clearly is opposed to considerations of public policy on which the doctrine of res judicata is
based and would mean harassment and hardship to the opponent. Besides, if such a course is
allowed to be adopted, the doctrine of finality of judgments pronounced by the courts would also
be materially affected.
Thus, it helps in raising the bar of res judicata by suitably construing the general principle of
subduing a cantankerous litigant (bad-tempered, argumentative and complaining most of the
time). That is why this rule is called constructive res judicata, which, in reality, is an aspect or
amplification of the general principle of res judicata.

Define who is indigent/pauper ? What are the special provisions for institution of suit by
indigent person ?
Who is an indigent person ? When can he institute a suit ? Discuss.
Order 33 of the Code of Civil Procedure provides for civil suits that may be filed by a person
even without payment of a court fee. Therefore, a suit instituted without paying court fees by a
person who is incapable of paying court fees is characterized as a suit instituted by an indigent
person or a suit instituted in forma pauperis.
Introduction
Any person who has a right or an interest in the subject matter of the dispute may file a civil suit
to claim that right or interest. However, such a person is required to pay court fees to the court
for the adjudication of his rights. The court fee is determined by the value of the subject matter
in dispute. There may be cases in which a person has a substantial interest in the suit property,
but he does not have the means to pay for the court fees. In that case, how would he be able to
file his suit without paying anything as court fees ?
What is the Meaning of Suits by Indigent Persons?
Order 33 of the Code of Civil Procedure provides for civil suits that may be filed by a person
even without payment of a court fee. Therefore, a suit instituted without paying court fees by a
person who is incapable of paying court fees is characterized as a suit instituted by an
indigent person or a suit instituted in forma pauperis.
Legal Provisions
Legal provision for the institution of suits by an indigent person has been provided under Order
33 of the Code of Civil Procedure. This order consists of 18 rules that provide details on
procedure, such as how permission for filing a suit by an indigent person may be obtained, if
such permission has been obtained by misrepresentation, how it is to be withdrawn, and how
the pleader is to be appointed to represent the indigent person's case after it’s filed.
Who is an Indigent Person?
A person is an indigent person if he does not have sufficient means to pay the fee prescribed by
law for such a suit. Here it is clear that a person may have means for his livelihood that consist
of property that is exempt from attachment in the execution of a decree and the subject-matter
of the suit. So apart from the subject matter of the suit and such other property that
cannot be attached in execution of a court decree, an indigent person does not have
other property or means to pay for the prescribed court fees.
However, there may be a case where no such fee is prescribed. In that case, a person is said to
be an indigent person if he is not entitled to property worth one thousand rupees other than the
property exempt from attachment in execution of a decree and the subject-matter of the suit.
Moreover, any property that is acquired by a person after the filing of the application for
permission to sue as an indigent person and before the decision on the application shall be
taken into account in deciding whether the applicant is an indigent person or not.
Furthermore, if a suit is filed by the plaintiff in a representative capacity, the question whether
he is an indigent person shall be determined with reference to the means possessed by him in
such a capacity.
Therefore, a person shall be deemed to be an indigent person if he does not have means
exceeding one thousand rupees in value. However, if such a person has property worth
more than a thousand rupees, it is insufficient to pay the fees prescribed by law. Without
any doubt, property that is either the subject matter of a dispute or that is exempt from
attachment in execution of a decree shall not be considered to be property in his
possession for the purpose of determining his status as an indigent person.
What property should not be considered for the determination of an "indigent person"?
For the purpose of determining a person as an "indigent person," the property that is exempt
from attachment and the subject of the suit are not to be taken into consideration.
Inquiry into the Means of an Indigent Person
On an application seeking permission to sue as an indigent person filed by the plaintiff, an
inquiry is to be conducted by the executive magistrate (SDM) of his local area to verify details of
the property of the indigent person. And a report is prepared mentioning the details of the
plaintiff's property. On the basis of this report, the court may decide whether the applicant is a
suitable person to be permitted to file a suit as an indigent person. Rule 1A of Order 33 of the
Code of Civil Procedure provides that every inquiry regarding the indigence of the person shall
be made by the chief ministerial officer of the Court unless the Court otherwise directs, and the
Court may adopt the report of such an officer as its own finding or may itself make an inquiry
into the question.
Examination of the Applicant
The court may examine the applicant regarding the merits of the claim and the property of the
applicant to verify the details of the property and his claim given in the application seeking
permission to sue as an indigent person.
Giving an Opportunity to Participate in an Inquiry
The provisions of Rule 6 of Order 33 are intended to give the opposite party (defendant) an
opportunity to participate in the inquiry into indigent status and adduce evidence to establish
that the applicant is not a pauper.
Procedure if Permission Granted
When permission to sue as an indigent person is granted to the plaintiff, his suit shall be
numbered and registered, and the suit shall be proceeded with like an ordinary suit, except that
the plaintiff shall not be liable to pay any court fee.
Withdrawal of Permission to Sue as an Indigent Person
The plaintiff's right to sue as an indigent may be revoked by the court on the defendant's
application; however, the plaintiff has to be given an opportunity to be heard. The plaintiff's
permission to sue as an indigent person may be withdrawn on any of the following grounds −
 That the plaintiff is guilty of vexatious or improper conduct in the course of the suit;
 That he has sufficient means to pay the court fees.
 That the plaintiff has entered into an arrangement with any other person to finance the
litigation, and thereafter he will be given a share of the property under dispute. The
person financing the litigation has sufficient means to pay court fees.
Assignment of a Pleader to the Indigent
The court may assign a pleader to the indigent person who has not been represented by a
pleader before the court after filing a suit under the provision of Order 33 of the Code of Civil
Procedure, 1908.
Legal Representative for Indigent Person
When an applicant who has filed a suit as an indigent person dies, his legal representatives are
not entitled to continue the suit as an indigent person. The right to sue as an indigent person is
a personal right. Therefore, the entire proceedings come to an end and lapse the moment the
applicant dies.
Realization of Court Fees
The exemption from filing the court fee at the time of institution of the civil suit, as granted to the
indigent person under Order 33 of the CPC, is applicable till the suit is finally disposed of.
However, where an indigent person succeeds in a suit, he shall be required to deposit the court
fee out of the property he received as an outcome of the suit. The court shall make appropriate
directions in the decree itself. The state government is empowered by law to recover court fees
from the indigent person as per the directions in the decree. Where an indigent person fails in
the suit, no court fees shall be paid by him.
Conclusion
According to the Indian Constitution, every citizen has a fundamental right to free and fair
justice. Further justice is not only done, it is seen to be done. Order 33 of the Code of Civil
Procedure implements the fundamental right to free justice by allowing a person to exercise his
rights without paying any court fees in order to assert his rights and interests. However, certain
conditions must be met before taking advantage of these provisions.

How far do you agree with the statement that limitation bars the remedy but does not
extinguish the right ? Discuss.
LIMITATION BARS THE REMEDY NOT THE RIGHT
In this statement, the word “right” is used to mean a primary & substantive right. In the wider
sense of the word, remedy is also a right but a secondary right, a procedural right. The rule that
limitation bars the remedy but not the right is contained in Section 3 of the Act.

Section 3 states that every suit instituted, appeal preferred & application made after the
prescribed period shall be dismissed although limitation has not been set up as a
defence. The second part of the rule that it does not bar the right is a necessary corollary of the
first since Section 3 only bars the judicial remedy.

What is a limitation defence?

Limitation is a potential defence to a legal claim, on the basis that the claim has not been
brought in time. Legislation prescribes limitation periods within which a legal action must be
brought.

What is the meaning of not barred by limitation?

In other words, It means that the statute of limitation prescribes only the period within which
legal proceedings have to be initiated. It does not restrict any period for setting up a defence to
such actions. Hence, the original right to suit is not barred.

What is limitation in filing suit?

Law of limitation:-It states that the appeals against a decree or order can be filed in a High
Court within ninety days and in any other court in thirty days from the date of the decree or order
appealed against. It is for general welfare that a period be put on litigation.

The rule of limitation is a rule of procedure, a branch of adjective law. It does not either create
rights or extinguish rights, except in the case of acquisition of title to immovable property by
prescription under Section 27 of Limitation Act, 1963.

After the remedy is barred by limitation, the right remains as a moral obligation or can be
availed to furnish consideration for a fresh enforceable obligation. So a right to the debt does
not cease to exist only because its recovery is barred by the statute of limitation. A debtor can
pay the “time barred debt” and cannot claim it back on the plea that it was barred by limitation.
Similarly, if a debtor has several debts due to a creditor & he makes payment without any
specification, then the creditor can adjust it towards any of the debts even if recovery of such
debts is barred by time.

Since the limitation bars the remedy by filing a suit & does not extinguish the right, a defendant
can set up a right in defence though he could not have enforced the right by way of a suit. There
is no limitation against a defence.

The only exception to this rule that limitation bars the remedy and not the right is contained in
Section 27 of Limitation Act, 1963. Section 27 states that in a suit for possession of any
property, on the determination of limitation period, not only the remedy but the right is also
extinguished. Not only the ownership to one person is extinguished, but an absolute ownership
is also acquired by the other person in adverse possession. Twelve years' adverse possession
of land by a wrongdoer not only bars the remedy and extinguishes the title of the rightful owner,
but confers a good title upon the wrongdoer.
Sec. 27 applies to both movable and immovable property. Where no period of limitation is
provided, then Sec. 27 does not apply. It may be noted that Sec. 27 is not actually related to the
law of limitation but to a law of prescription which has to be distinguished from the law of
limitation.
Under Sec. 27, not only the ownership to one person is extinguished, but an absolute ownership
is also acquired by the other person in adverse possession. Twelve years’ adverse possession
of land by a wrongdoer not only bars the remedy and extinguishes the title of the rightful owner,
but confers a good title upon the wrongdoer.
The title which is acquired by adverse possession is a new title in strictness of law, it is not old
title which is transferred to the new owner, but only a title corresponding in quantity and quality
to the old title.
Limitation bars the Remedy – It is a well-established rule of law, that in cases which are not
governed by Sec. 27, limitation merely bars the remedy, but does not extinguish the title. Sec.
27 is an exception to this principle. Thus, this section is confined to suits for possession and
does not apply to a suit by a mortgagee for recovery of the money due to him by sale of the
mortgaged property. The mortgagee’s remedy may be barred if he omits to sue within the
statutory period, but his right is not extinguished.
Extinguishment of Right – But, in cases where the right claimed is that of ‘possession of
property’ and the suit is not brought in time, it is not only the remedy that is barred, but also the
right is extinguished. The result is that not only will the court throw out the suit, but also that if
the plaintiff dispossesses the person in possession; he will be considered a trespasser. The
principle is that when the title is extinguished, it cannot be revived by re-entry (Ram Murti v.
Puran Singh AIR 1963 Punj. 393).

In case PNB vs. Surendra Prasad Sinha, AIR 1992 SC, PNB gave loan to Mr. Dubey,
Surendra Prasad Sinha stood guarantor & executed a security bond giving FDR to bank.
Dubey defaulted in payment of loan. Bank did not proceed against Mr. Dubey for 3 years.
Limitation expired. Even after 4 years when FD of Surendra Prasad Sinha was to mature, bank
deducted loan & interest amount from FDR of Surendra Prasad Sinha & credited the
remaining amount in savings account of Surendra Prasad Sinha. Sinha filed criminal complaint
for 405, 409 criminal misappropriation. HC declined to quash complaint. SC quashed the
complaint.
SC said: though the right to enforce the debt by judicial process is barred, the right to debt
remains. The time barred debt does not cease to exist by virtue of Section 3. The debt is not
extinguished but the remedy to enforce the debt is destroyed.
In Balakrishnan v. M.A. Krishnamurthy (1998) 7 SCC 123, it was held by the Supreme Court
“that the Limitation Act is based upon public policy which is used for fixing a life span of a legal
remedy for the purpose of general welfare. It has been pointed out that the Law of Limitation are
not only meant to destroy the rights of the parties but are meant to look to the parties who do
not resort to the tactics but in general to seek remedy. It fixes the life span for legal injury
suffered by the aggrieved person which has been enshrined in the maxim ‘interest reipublicaeut
sit finis litium’ which means the Law of Limitation is for general welfare and that the period is to
be put into litigation and not meant to destroy the rights of the person or parties who are seeking
remedy. The idea with regards to this is that every legal remedy must be alive for a legislatively
fixed period of time”
Critical Note
It is sometimes expressed that the plea of limitation is dishonest plea. Although a debt may be
irrecoverable in court, it nevertheless continues to be binding on the debtor in foro conscientiae
i.e. forum of the conscience. But considering the object of law doctrine of law of limitation, it
cannot be said that it is unjust to raise the plea. Moreover in India, the question of morality of the
plea is of less consequence, for whether the defendant takes up the plea of limitation or not, the
court is bound u/s 3 of Limitation Act, to dismiss a suit if out of time.
It is sometimes said that the statute of limitation is a statute of repose, peace and justice. This is
because the statute of limitation, in a way, furnishes guarantee to the general public that after
the lapse of certain period, their settled rights or title shall not be litigated upon in courts and
they may live in peace.

Discuss the law relating to the effect of acknowledgment of liability on the period of
limitation.
As per Section 18 of the Limitation Act, 1963, following are the requirements for a valid
acknowledgement:
(1) Acknowledgment must be made before the expiration of limitation period – in other words,
the acknowledgment must be made after the period of limitation has begun to run and while it is
actually running. An acknowledgment may be made before the expiry of limitation period as
extended by the operation of Sec. 12 or 14 of the Act.
(2) Acknowledgment of liability must be in writing – Hence an oral acknowledgment is not
sufficient. Similarly, a mere payment of sum of money towards the debt is not sufficient under
this section although such payment may be intended as an acknowledgment of debt.
(3) Acknowledgment must be signed by the person making the acknowledgment or by his duly
authorized agent—Thus, a telegram cannot constitute a sufficient acknowledgment as
telegrams are not signed by the parties sending them. Signed initials instead of full signature do
not affect the legality of acknowledgment. Under the General Clauses Act, ‘sign should, with
reference to a person who is unable to write his name, includes his mark’. An acknowledgment
need not be in the handwriting of the maker but it must be signed by him or his agent, otherwise
it will not be valid. The authorization of agent need not be in writing, it can be implied viz. a
guardian is an agent duly authorized to make acknowledgment. Similarly, the acknowledgment
made by the karta of a Hindu Joint Family binds the other members of the family. An
acknowledgment by one partner of a partnership firm saves limitation against the other partners.
An acknowledgment made by one of the active directors of the company is a sufficient
acknowledgment.
(4) Acknowledgment must be made by the party against whom any party or right is claimed or
by some person through whom, he derives title or liability – It is sufficient if the acknowledgment
has been made by a person against whom the right is claimed in suit. It is not necessary that at
the time when the acknowledgment is made, such person must have an interest in property in
 respect of which acknowledgment is given. An auction purchaser derives his title from the
judgment debtor. Thus an acknowledgment made by the latter will be binding on the former.
(5) Acknowledgment must be in respect of the particular property or right claimed in the suit or
application – Thus, unless it is shown that the right acknowledged is identical with the right
claimed in suit, the section will not apply. Where the defendant owes several debts to the
plaintiff and acknowledges in respect of a debt and it is not possible to identify the debt
acknowledged with the one claimed in suit, the acknowledgment will be ineffective.
(6) Acknowledgment need not be express, it may be by necessary implication – Explanation (a)
to the section provides that an acknowledgment may fail to specify with exactitude the nature of
the property or right (e.g. exact sum due); or the man acknowledging the liability may couple his
acknowledgment with a statement that the time for performance, delivery, enjoyment or
payment of the property or right has not arrived; or claims that he also has claims against the
plaintiff by way of set-off, or even the fact that the acknowledgment is not addressed to the
creditor himself but to a third party will not detract from the value of acknowledgment for
purposes of Sec. 18.
An example—A period of three years is prescribed by the Indian Limitation Act for an ordinary
oral debt. After expiry of 2 years, the debtor gives a written acknowledgment, say a letter signed
by him to the creditor saying that he is sorry for the debt not being paid yet. A fresh period of 3
years will start from the date of the letter. It is important to note that the day on which the
acknowledgement is made will have to be excluded in computation (vide Sec. 12, Limitation Act,
and General Clauses Act).
• If an acknowledgment is made in favour of a minor, the new period of limitation is to be
computed from the date when the plaintiff attains majority.
• An acknowledgment of a ‘barred debt’ (admission of past liability) cannot give fresh period of
limitation in favour of creditors.
• The distinction between an “acknowledgment” under Sec.18 of the Limitation Act and a
“promise” under Sec.25 of the Contract Act is of great importance. Both must be in writing
signed by the party or his agent authorized in that behalf, and both create a fresh starting point
of limitation. But while an acknowledgment under the Limitation Act is required to be made
before the expiration of the period of limitation, a promise under Sec. 25 of the Contract Act may
be made after the limitation period. If a debt is time-barred, there can be no acknowledgment of
the debt, there can only be a promise to pay that sum. Such a promise would amount to a new
contract. It is open to the borrower to make a promise in writing, signed by himself, to pay a debt
of which his creditor might have enforced payment but for the law for the limitation of the suit.
This is recognized by Sec. 25(3) of the Contract Act.

Discuss the provisions of Civil Procedure Code relating to appeal.

If a person feels aggrieved by a court’s decree or order, he may file an appeal in a higher court
if an appeal is available against that decree or order.
Sections 96 to 112 and Orders 41 to 45 of the Civil Procedure Code, 1908 contain provisions
relating to appeals.
 Sections 96 to 99A, 107, and Orders 41 deal with first appeal.
 Second appeal is dealt with under sections 100 to 103, 107, and 108, as well as Order 42.
 Appeals from Orders are covered by sections 104 to 108 and Order 43.
 Appeal by an indigent person is given under Order 44.
 Appeal to Supreme Court is given under sections 109 and 112 and Order 45.
This CPC law note tells you about first appeal (civil appeal) as per the Civil Procedure Code,
1908, with requirements, procedure, and more.
Appeal From Original Decree
A first appeal can be filed against a decree issued by a court with original jurisdiction.
Section 96 of the Civil Procedure Code (CPC) establishes the right to appeal from any decree
issued by any court with original jurisdiction.
An ex-parte decree can be appealed against under section 96(2) of CPC.
Section 96(3) of the Civil Procedure Code is based on the principle of estoppel and bars an
appeal against a consent decree.
Section 96(4) of the Civil Procedure Code bars appeal in petty cases.
Requirements for Presentation of an Appeal
The requirements for the presentation of an appeal as per the Civil Procedure Code are as
follows:
It must be in the form of a memorandum.
It must be signed by the appellant or his pleader.
A certified copy of the judgement must accompany the memorandum.
Presentation of Appeal
When an appeal is presented, the court must endorse it and record it in the register of appeals.
Stay of Proceedings
The Civil Procedure Code, Order 41 Rule 5, provides for a stay of execution of a decree or
order. Following the filing of an appeal, the appellate court may order a stay of proceedings or
execution of the decree. However, simply filing an appeal does not suspend the operation of the
decree. If sufficient grounds are established, a stay of execution may be granted.
Summary Dismissal of an Appeal
Order 41 Rule 11 of the Civil Procedure Code embodies the general rule that whenever an
appeal is filed, the appellate court has the authority to dismiss the appeal summarily if, after
hearing the appellant or his pleader, there appears to be no substance in it.
Procedure at the Hearing of an Appeal
The appellant has a right to begin. If the court finds that the appeal lacks substance after
hearing the appellant, it may dismiss the appeal without calling the respondent to reply.
If the appellate court does not dismiss the appeal, the respondent will be heard, and the
appellant will be given the opportunity to reply.
If the appellant does not respond when the appeal is called for hearing, the appeal may be
dismissed in default.
When in a hearing of the appeal, neither the appellant appears nor the respondent, then the
appeal is dismissed ex-parte.
Cross Objection
Order 41 Rule 22 of the Civil Procedure Code contains a special provision that allows a
respondent who has not filed an appeal against the decree to object to it by filing a cross
objection in the opposite party’s appeal.
Powers of an Appellate Court
The appellate court has the following powers:
 Power to decide the case finally.
 Power to remand.
 Power to frame issues and refer them for trial.
 Power to take additional evidence.
 Power to modify the decree.

Are all the decrees appealable ? Discuss.

Suit procedure
Appeal From Original Decrees
(Sec. In general, an appeal lies from any decree passed by the court.
96) -
(Sec. In cases, where the value of suit does not exceed Rs.10, 000 An appeal can be filed
96) only on a question of law.
(Sec. When a decree has been passed against the Defendant as "Ex- Parte ", i.e. without
96) his appearance, no appeal is allowed.
When an appeal is headed by two or more judges, then the majority decision shall
prevail.
(Sec. In case there is no majority, then the decree of lower court shall be confirmed.
96) In case, the number of judges in the court, where appeal is filed is more, than the
number of judges hearing the appeal, then if there is a dispute on a point of law, such
dispute can be referred to one or more judges.
Procedure For Appeal From Original Decrees ( Order 41)
 The appeal shall be filed in the form prescribed, signed by the appellant, along with a
true certified copy of the order.
 The appeal shall contain the grounds of objection under distinct heads, and such
grounds shall be numbered consecutively.
 If the appeal is against a decree for payment of money, the court may require the
appellant to deposit the disputed amount or furnish any other security.
 A ground / objection which has not been mentioned in the appeal, cannot be taken up for
arguments, without the permission of court.
 Similarly any point of act which was not taken up by the Appellant, in lower court, cannot
be taken up in appeal. Appeal lies only against only those points which have been
decided by the court rightly or wrongly.

What do you understand by framing of issues ? When they are framed ? Explain.
The Civil Procedure Code does not define what an issue is but, Order XIV, Rule 1 elucidates
that "Issues arise when a material proposition of fact or law is affirmed by the one party and
denied by the other".
Order XIV of the code of civil procedure, 1908 states that it is the duty of the court to frame
issues from Material Propositions. Here material propositions means those propositions of law
or fact which a Plaintiff must allege in order to show a right to sue or a Defendant must allege in
order to constitute his defence.
Illustration:
In a dispute between husband and wife over allegations of cruelty wherein the wife registers a
complaint before the police and police unlawfully and without following the due process of law
arrest the husband and therefore if a suit for damages for illegal arrest is to be filed against the
state govt. then material facts for the said suit would be facts of arrest and facts of illegality.
Meaning of Issue:
A single material point of fact or law in litigation that is affirmed by the one side and denied by
the other side is called an Issue.
Framing or non-framing of issues in case of Ex-parte decree:
Court should only frame issues when defendant has made his defence against the suit through
submission of his written statement. However, court should not frame issues when the
defendant has not appeared before the court.
Kinds of Issue:
There are two types of issues
1.Issue of Fact
2.Issue of Law.
Object of framing of Issue:
Object is to ascertain the real dispute between the parties by narrowing down the area of
conflict and determining where the parties differ.
Matters to be considered before framing of Issues:
1.The court shall read the plaint and written statement before framing an issue to see what the
parties allege in it.
2.According to Order X, Rule 1 of Code of civil procedure, 1908 it permits the court to examine
the parties for the purpose of clarifying the Pleadings, and the court can record admission and
denials of parties in respect of allegations of facts as are made in Plaint and written statement.
3. If any party admitted any fact or any document then no issues are to be framed with regards
to those matters, and the court will pronounce judgments respecting matters which are
admitted.
4.The court may ascertain upon at what material propositions of law or fact the parties are at
varies.
5.The court may examine the witness for the purpose of framing of issues.
6.The court may also in the framing of issues take into consideration the evidence laid in the
suit. When a material point is not raised in the pleadings, and it is noticed by the court during the
course of evidence the court can frame an issue regarding it and try it.
7.Order XIV Rule 4 states that where the Court is of opinion that the issues cannot be correctly
framed without the examination of some person not before the Court or without the inspection of
some document not produced in the suit, it may adjourn the framing of the issues to a future
day, and may (subject to any law for the time being in force) compel the attendance of any
person or the production of any document by the person in whose possession or power it is by
summons or other process.
Materials on which issues may be framed:
1.Allegations made on Oath: Issues can be framed on the allegations made on oath by the
parties or by any persons present on their behalf or made by the pleader of such parties.
2.Allegations made in Pleadings: Issues can be framed on the basis of allegations made in the
pleadings.
3.Allegations made in interrogatories: Where the plaint or written statement does not sufficiently
explain the nature of the parties’ case, interrogatories may be administered to the party and
allegation made in answer to the interrogatories delivered in the suit may be the basis of framing
of issues.
4.Content of documents: The court may frame issues on the basis of content of documents
produced by either party.
5.Oral examinations of Parties and Objections: Issues can be framed on the basis of oral
examination by the parties or oral objections.
Amendment or Strike out Framed Issues:
At any time before passing of decree, court can amend framed issues on those terms which it
deems fit. However, such amendments of framed issues would be necessary for determination
of matters in controversy between parties.
At any time before passing of decree, court can amend framed issues specially when it appears
to the court that such issues have been wrongly framed or introduced.
Regarding amendment of framed issues court also has a mandatory power, in fact, court is
bound to amend framed issues especially when such amendments are necessary in
determination of matters in controversy, when framed issues do not bring out point in
controversy or where framed issues do not cover entire controversy.
Court can amend or strike out framed issues at any stage before final disposal of suit.
Conclusion:
Issues are of great importance not only for parties but also for court. Parties are required to
prove or disprove framed issues and not pleadings, and on the other hand, court is
bound to give decision on each framed issue and therefore court is not bound to decide
those matters on which no issues have been framed.

Executing court cannot travel beyond the decree under execution. Comment.
Section 47 of the Code of Civil Procedure, 1908 specifically deals with objections to
execution, discharge, and satisfaction of a decree. It deals with such questions that have to be
considered while executing any decree.
Objective of Section 47 CPC
The following are the objectives of this Section:
 To provide a quick and cheaper remedy in case the decree has not been executed by a
judgement debtor.
 To determine any question or objection related to the execution of a decree.
 It also reduces the burden of filing a separate suit and thus prevents multiple litigations
and suits.
 It also reduces the chances of pendency of suit and delay in justice, which might happen
in case a separate suit is filed for the purpose of execution of a decree.
 It provides a legal remedy to the decree holder if the decree has not been executed
properly or if there is any ambiguity in the execution.
 The decree can be enforced properly and without any failure with the help of the
executing court.
Essentials of Section 47 CPC
In order to apply Section 47, the following conditions or essentials must be fulfilled cumulatively:
 The question related to the execution of a decree must arise between the parties to a
suit or their representatives and not any third person not having any interest in the suit or
execution.
 The question or matter at issue must be related to the execution, discharge or
satisfaction of a decree.
Powers and duties of executing court
The powers and duties of the executing court are:
 Plenary power to determine questions related to execution, discharge, or satisfaction of
a decree.
 The relevant date for this purpose would be the date on which the proceedings were
originally instituted.
 It can mould relief according to the changes in the circumstances.
 The court cannot go beyond what has been mentioned in the decree.
 The question related to the validity or correctness of the decree can not be determined
by such a court.
 It has the duty to interpret the decree in cases of vagueness and ambiguity.
 It can also refuse the execution of a decree if there is an inherent lack of jurisdiction in
the court.
There are some general principles related to the power and duties of an executing court. These
are:
 No court can execute a decree for a property that is situated outside its local jurisdiction.
Thus, the general rule is that an executing court has to work within its territorial
jurisdiction.
 The executing court can never go beyond what has been stated in the decree, nor can it
modify the decree.
 If the court lacks inherent jurisdiction, then the decree passed will be a nullity and its
invalidity could be easily established in execution proceedings. However, such a lack of
jurisdiction must be easily identifiable on the face or in the first instance.
  In case the decree-holder dies, then it does not mean that the decree will now stand
inexecutable. It can be executed against his legal representatives.
 The executing court has the power to interpret a decree in cases of ambiguity and
vagueness.
 It can also decide whether such a decree has ceased to be executable by any
subsequent developments.
 If a decree has become inexecutable by operation of law, then it might become
executable by virtue of any further amendment.
 The executing court can also mould or modify the relief granted to the plaintiff according
to any change in the situation or circumstances.
 If the executing court is executing a decree which has been transferred to it by some
other court, then it will have the same powers as if it is executing a decree passed by the
court itself.

What do you understand by Reference, Review and Revision ?

Reference means to refer an issue to someone to obtain an opinion on it. Review means to look
after a thing again. Revision means to revise the matter. Let us look at all these three topics of
the Civil Procedure Code, 1908, in detail now.
What is Reference in CPC
Reference means to refer an issue to someone to obtain an opinion on it. A matter is generally
referred when its question can’t be decided by the court doing a trial of it.
1. Reference is mentioned under section 113 and order 46 of the Civil Procedure Code.
2. It empowers a subordinate court to refer the matter to the High Court for its opinion on
a matter.
3. The power of referring a case lies only with the subordinate court. It may or may not
refer a case. It is its discretion.
4. The case to be referred to the High Court must be regarding the validity of the Act.
5. The question referred by the subordinate court to the High Court must be essential for
the disposal of the case.
6. Court may itself refer a case to the High Court, that is suo motu or on the application
of either of the party.
7. The High Court is required to give its opinion on the matter concerned, along with the
reasons.
8. Reference to the High Court must be made through a judicial order and not a letter to
the High Court.
9. The matter can be referred only in a suit, appeal, or execution and not in any other
proceedings.
10. The reference can be made only when the subordinate court has a doubt on a
question of law and not otherwise.
What is Review in CPC
Review means to look after a thing again. It means to re-examine again.
1. Review is mentioned under section 114 and order 47 of the Civil Procedure Code.
2. The court which has tried the case and adjudicated the matter has the authority to
review the case again.
3. A review lies from a decree or order for which no appeal lies or such decree or order,
which is appealable, but no appeal has been preferred.
4. The application for review is submitted to the court, which has decided that case. If the
judge is transferred to another court, then the application may be given to the successor
judge.
5. If the court during the trial has left or not entertained any substantial issue which is
relevant for the proper disposal of the case, then the case can be reviewed.
6. There is no provision for reviewing the order given by a judge in the proceedings of
review.
7. The court must review its judgment if the error appears on the face of the record. And
if that error is not rectified, it will cause a miscarriage of justice.
8. Court cannot review its judgment suo motu. The court reviews a case only on the
application of the party.
9. What is an error on the face of the record can’t be illustrated or elaborated. It has to be
understood from facts to facts and case to case.
10. If the judgment given by the subordinate court is inconsistent with the judgment laid
down by the Supreme Court, then the court reviews its judgment.
Grounds to Review Judgment
1. If in a case, there is the discovery of a new or important matter or evidence, then the
court can review its judgment.
2. If there is a mistake or any mathematical or clerical error on the face of the record, the
court can review it.
3. If there is any other reasonable or sufficient reason for which the court is satisfied to
review its judgment.
What is Revision in CPC
Revision means to revise the matter and pick out if something has been done wrongly or in the
wrong manner.
1. The High Court does revision under section 115 of the Civil Procedure Code.
2. The purpose of revision by the High Court is to rectify the mistakes made by the
subordinate courts during the trial of a case.
3. The High Court is empowered to do revision only in a civil case, but in criminal
matters, the sessions court is also empowered along with the High Court for revision.
4. The purpose of revision is to serve the parties with the ends of justice and not to
defeat their rights.
5. The High Court, while doing revision, can’t appreciate any additional or new evidence.
That shall not be acceptable.
6. If any issue has been left over in trial, then such an issue can’t be brought at the time
of revision.
Grounds for Revision
1. The subordinate court has tried and decided such case of which it has no jurisdiction
to try it.
2. When the subordinate court had jurisdiction to try the matter, but it did not exercise its
jurisdiction.
3. If the court during trial and hearing left or avoided any evidence which was crucial for
the impartial conclusion of the case.
4. If the subordinate court violated the principles of natural justice, that is Audi Alteram
Partem and Nemo judex in causa sua.
Difference between Reference and Review
In reference, it is the subordinate court that refers the matter to the High Court. Only the High
Court can decide the matter on reference. But in review, the aggrieved party makes an
application to the court which delivered judgment or passed the decree.
Difference between Review and Appeal
Review means to look again or re-examine the judgment delivered by a judge. It is done in the
same court. Whereas, an appeal lies to a higher court, before another judge. There can also be
a second appeal in a matter. But a matter for review can’t be reviewed for the second time.
There can be numerous grounds for appeal, but for review, there are countable reasons like
error, substantial issue, etc.
Write short notes on
 Affidavit
 Mesne Profits
 Summon
 Legal disability
 Ex parte decree
 Set off and Counterclaim

An affidavit is a
 written statement confirmed by oath or affirmation, for use as evidence in court.
 sworn statement put in writing. When you use an affidavit, you're claiming that the
information within the document is true and correct to the best of your knowledge. Like
taking an oath in court, an affidavit is only valid when you make it voluntarily and without
any coercion.
An affidavit must be in writing. It needs to be a declaration by the deponent. The facts
mentioned in an affidavit must be true to the best knowledge of the deponent. In order to make it
valid, it needs to be sworn in under oath before an authorised officer or magistrate.
According to the Indian Notaries Act, 1952, there is no specific time limit for the validity of an
affidavit. However, the validity of the affidavit may be questioned if there is a significant change
in the circumstances or facts stated in the affidavit.
The document is signed both by the person making the statement, called an affiant, and
by a person who is legally authorized to administer an oath, such as a notary public or
certain court and government officers.
The purpose of an affidavit is to formally legitimize a claim. These legal documents are used in
conjunction with witness statements or related evidence in a dispute. For an affidavit to be
valid, the person who signs it must be personally aware of the facts within the affidavit and they
must take an oath that they are 100% honest within the affidavit.
Affidavits are crucial pieces of information when it comes to settling a dispute. When used
properly, affidavits can sway a court decision. Some affidavits also serve to certify facts about
lawsuit parties’ lives, such as financial affidavits. At their core, affidavits serve to deliver
certifiable facts in a way that can reasonably be guaranteed to be truthful.
Mesne Profits :
The phrase was originally 'mesne rents and profits' meaning all the rent or profit from the land
that could be extracted by the intermediate landlord. In the modern time the term 'mesne profits'
means the claim that a lawful owner of the property has against the unlawful possessor of the
property.
Section 2(12) of Code of Civil Procedure defines Mesne Profits
Mesne profits of property means “those profits which the person in wrongful possession of such
property actually received or might with ordinary diligence have received there from together
with interest on such profits but shall not include profits due to improvements made by the
person in wrongful possession”.
Who can claim: The true owner of the property can bring a suit to recover mesne profits. It is
generally accompanied by suit for obtaining possession. It can be claimed by the person who is
in actual possession of the property.
Against whom: Mesne Profits are claimed against the person in wrongful possession. For
example, a tenant who refuses to evict the house after expiry of lease period. Here the
possession becomes wrongful or illegal.
Claimed for : Mesne Profits are always available on immovable property.
Quantum of Profits: According to Section 2(12) , the Profits means the profits;
 Actually received Or
  Might have been received with ordinary diligence.
For example- X, a person in wrongful possession of a property, gives the property on rent and
earn Rs 10,000 in 6 months. Now the true owner will sue him for 10,000 i.e. the amount actually
received.
Now for instance, X only earn Rs 5,000, in fact, a person with ordinary diligence would have
earned Rs 10,000. X does this either intentionally or negligently, in case he is unaware of the
prevailing rent rate. Now the true owner can claim Rs 10,000 although X has actually received
5,000 only.
So the amount of Mesne Profits is only what the defendant has earned or might have earned
with ordinary diligence. It doesn’t include what the plaintiff has lost.
While determining the amount various factors are taken into consideration. It varies from case to
case. Ordinarily, the rental value of property is the useful determinant while assessing the
amount of profits. But it is no longer acceptable now.
Moreover, the expenditure by defendant on the land need to be deducted first and then the
amount is calculated.
In Dakshina v. Saroda : The court held that while awarding mesne profits, the court may allow
deductions to be made from gross profits of defendant in wrongful possession of property such
as land revenue, rent, cesses, cost of cultivation, charges incurred for collecting rent etc.
Interest on profits: Mesne Profits includes interest on such profits also. The code doesn’t
specify any interest rate so it is left to discretion of courts. Generally it is not more than 6% per
annum.
In N. Darsjee v. Tirupati Devasthanam[4] S.C. observed that interest in an integral part of
mesne profits so it is to be allowed in computation of mesne profits itself.
What is not included in Mesne Profits: According to Section 2(12), the Profits earned by the
person in wrongful possession doesn’t include the profits which he received after doing some
improvements in the property.
For example: A person in wrongful possession of a vacant land, builds house on such land and
give it on rent, the income earned by way of rent doesn’t include Mesne Profits. Also the person
in wrongful possession can’t claim the expenses incurred by him on improvements.
Limitation period for filing suit of mesne profits: The period of limitation for a suit for the profits of
immovable property belonging to the plaintiff which have been wrongfully received by the
defendant is three years and the time of limitation begins to run when the profits are received.

What is a Summon ? How is a summon served ? Explain.

The word ‘summon’ has not been defined anywhere in the code. The definition of summons as
given by the Oxford dictionary states that, “a document which is issued from the court of justice
and calls upon a person to whom it is directed, to be present before a judge or court for a
specific reason is called a summon.” Issue and service of summons are given under Order 5 of
the Code.
Objective of summons
The following are the objectives of summons:
 It is important to inform a person about any legal action that has been taken against
them.
 It gives an opportunity to the defendant to present his case and side of the story.
 The basis of summons lies in the maxim “Audi Alteram Partem”, which means to hear
both sides.
 It further helps in following the principles of natural justice and ensures fair proceedings
and trial.
 It helps in ensuring the presence of either a witness or accused or any other person who
is involved directly or indirectly in a suit before the court.
  To produce the necessary documents.
Essentials of summons
The essentials of a summon are given under Order 5, Rules 1 and 2 of the code. These are:
 Every summon must be signed by the judge or any other officer whom he appoints to do
so on his behalf.
 It must be sealed properly.
 The court will not issue any summons to the defendant if he has appeared before the
court at the time of the institution of the plaint.
 After summons are issued, the defendant is required to file written statements within 30
days. If he fails to do so, he has to provide reasons, and if the court is satisfied, it can
extend the time period to file written statements to not more than 90 days.
 Another essential element of summons is that every summon must be accompanied by
a copy of the plaint.
 The format of a summons must be according to the prescribed form given in Appendix B
of the First Schedule under the code.
Contents of summons
Rule 5 to Rule 8 of Order 5 under the code gives the content of summons. A summon must
contain:
 Information, whether it is issued for settlement of issues or final disposal of the suit.
According to Rule 5, the court of small causes can only issue a summons for the final
disposal of a suit and nothing else.
 It must contain the date and day fixed for the appearance of the defendant, considering
the factors like the residence of the defendant, time, etc., so that he can get a
reasonable time and opportunity to appear before the court.
 It also contains the list of necessary documents that a defendant is required to produce
in court.
 If the summons is issued for final disposal, it must direct the defendant to produce
witnesses on his behalf to support his side.
Mode of service of summons
This is one of the most fundamental and important rules of law that states that a party must be
given a fair chance to represent himself, and this is only possible if he has been served with fair
and reasonable notice of legal proceedings stating the legal action taken against him. This will
also give him the opportunity to defend himself and present his case.
One of the major causes of delay in justice or pendency in cases is the service of summons.
The defendants or people to whom the summons are issued may avoid it or ignore it, which
results in a delay in proceedings, leading to a delay in justice. The Law Commission and the
makers of the law felt a need to make certain amendments with respect to the service of
summons and their modes of service. The code gives several modes of service of summons,
which are discussed below in detail.
Personal or direct service
This mode of service of summons is simple. In this mode, a copy of the summons is issued to
the concerned person or his agent or any other person on his behalf, and the person receiving
the summons must acknowledge the same. It is the duty of the officer serving summons to
ensure and make an endorsement with regard to the summons served that states the time and
manner of service, the name and address of the person receiving the summons, and witness to
the delivery of the summons.
Rules 10 to 16 and Rule 18 of the order deal with personal or direct service. While serving
summons through this mode, the following principles must be taken into consideration:
 The service officer must try to serve the summons to the defendant or his agent.
  If the defendant is not present at his place of residence and there is no agent, then it
must be served on any adult male or female member of the family living with him on his
behalf.
 If a suit is related to the business or work of a person who does not reside within the
territorial jurisdiction of the court, then it may be served to the manager or agent of that
business or work.
 In the case of a suit on immovable property, if the defendant is not found, then the
summons may be served on any person or agent who is in charge of such property.
 If a suit involves two or more defendants, then the summons must be issued to each of
them.
Service by the court
Rule 9 of the Order deals with the service of summons by court. It provides that if a defendant
resides within the jurisdiction of the court, then the summons must be served to him by the court
officer. It can also be served by post, fax, message, email service, approved courier service,
etc., but if the defendant does not live within the jurisdiction, then it must be served by the officer
of the court within whose jurisdiction he resides.
In the case, summons are served by Registered post acknowledgment due (RPAD), the court
will assume the valid service of summons is complete even if there is no acknowledgement slip.
If a person refuses to accept it, the court may treat it as a valid service. The Supreme Court, in
the case of Salem Advocate Bar Association v. Union of India (2005), directed the high courts to
make appropriate rules or guidelines to ensure that the provisions of summons are implemented
properly without any abuse of power or process of law.
Service by plaintiff
According to Rule 9A of the Order, the court may permit the plaintiff, on his application, to serve
summons to the defendants. He has to deliver the copy of the summons which is sealed and
signed by the judge or any other officer appointed by the judge to do so, and also make sure
that the defendant summons acknowledges the service. If the defendant refuses to
acknowledge the service or if it cannot be served personally, the court will re-issue the
summons and serve it to the defendant.
Substituted service
Substituted service means a mode of service of summons that is adopted in place of ordinary
service of summons. There are two modes of substituted service as given under Rules 17, 19
and 20 of the Order. These are:
 If the defendant or his agent refuses to acknowledge or sign the receipt of the summons,
or if the officer serving the summons reasonably believes that the defendant is not
present at his residence and will not be found within a reasonable time, and moreover if
there is no agent to receive summons on his behalf, he may affix the copy of the
summons on the door or any conspicuous part of his house.
o In this case, the serving officer has to make a report stating the reasons for
affixing the summons, the circumstances, the name and address of the person
who helped him and the witnesses to affixing the summons.
o The court can declare that the summons has been issued if it is satisfied with the
report of the officer.
 If the defendant is deliberately avoiding service and the court has a reason to believe so,
it may affix the summons in some conspicuous place in the court and house of the
defendant where he used to reside, carry on business or work for somebody.
In the case of Yalllawwa v. Shantavva (1997), the Supreme Court held that this mode of service
of summons is not an ordinary mode and must not be used normally. It must only be used in
exceptional cases and treated as the last option.
According to Rule 20, if a court orders to advertise the summons in the newspaper, then it must
be done in a local newspaper where the defendant lived, had a business, or worked. This
service is an effective option to serve summons even if the defendant is not reading the
newspaper (Sunil Poddar v. Union Bank of India, 2008).
Before issuing the summons through this mode of service, the court must give the defendant a
reasonable time to appear before the court. In another case, State of Jammu and Kashmir v.
Haji Wali Mohammad (1972), the Supreme Court held that if a summon does not fulfil the
requirements of Rule 19 of Order 5 under the Code, then such service of summons is not in
accordance with the law.
Service by post
The Code earlier provided that the summons could be served through the post as well and was
given under Rule 20A of the Order, but this provision has been repealed by the Amendment Act
of 1976.
Service of summons in special cases
Rules 21–30 provide the mode of service of summons in special cases.
 If the defendant resides in another state or outside the jurisdiction of the court issuing
the summons, the court may send the summons to another court in whose jurisdiction
the defendant resides to serve it on him.
 According to Section 29 of the code, if any foreign summon has to be served, then it
must be sent to the court in the territories where the code applies, and they will further
serve the summons as if it had been issued by them.
 If the summons has to be served in presidency towns like Calcutta, Madras, and
Bombay, then it may be sent to the Small Causes Court of that particular jurisdiction.
 If the defendant does not live in India and has no agent then according to Rule 25, the
court can serve the summons by way of post, fax, email or any other appropriate means.
The other way of serving the summons to such sovereign country where the defendant
resides is either by a political agent or through the court of that country, which has
powers and authority to serve the summons as given under Rule 26 of the order.
 If the defendant is a public officer, a railway officer, or a servant of the local authority,
then the summons can be served through the head of their departments.
 If the defendant is a soldier, airman, or sailor, then the summons can be sent through
their commanding officer.
 If the defendant is a convicted prisoner, then the summons can be served through the
officer in charge of the prison.
 In case, the defendant is a company or a corporation, the summons may be served to
the secretary, director, or principal officer of the company or through post to the address
where such company carries on its business or at its registered office.
 If the defendants are partners in a firm, then it must be served to any one of the
partners, but if the partnership has dissolved before the suit has been instituted, then
every partner must be served the summons.
 The court issuing the summons also has the power to substitute it with a letter of
request, which will contain the same contents and information as the summons. This will
be done for any person depending upon the position or office held by such a person.

What are the various grounds of legal disabilities recognized under the Limitation Act,
1963. Explain.
1. Introduction
The intention of the statute of limitations is to put an end to litigation in accordance with the
principle, interest reipublicae ut sit finis litium which states that it is in the interest of the state to
put an end to it. Legal Disability is defined under section 6 of the Limitation Act which states that
if the person seeing was disqualified at the time the cause of action arose, there will be no time
limit if the suit is filed within three years of the disqualification ending. Section 6 of the
aforementioned Act allows children or lunatics to file a suit or application for a longer period of
time
2. What is the legal definition of disability?
The absence of legal capacity to conduct an act due to a lack of competent physical and mental
abilities. The term “disability” usually refers to a person’s incapacity to exercise all of the legal
rights that only an average person would have.
 Section 6 states that when a person who is entitled to institute a suit or make an
application for the decree’s execution is a minor, insane, or idiot at that time, then he can
file a suit or make an application after the end of disability as would have specified under
the third column of the schedule.
 When such a person is affected by both the disabilities and the person gets affected with
any other disability then he can file the suit or make the application when both the
disabilities come to an end.
 When such disability lasts till the death of the person then his legal representatives can
file the suit or makes an application after the period of death.
 Where the legal representatives get affected other than death then the above provisions
shall apply.
 When a person with an illness dies after the disability has ended but before the deadline
set by this section, his legal representative may file a lawsuit or file an application within
the same time limit as if the person had not died.
Under this section minor includes a child in the womb of the mother.
3. Kinds of Legal Disability
Minor: As per section 3 of the Indian Majority Act, 1875 a person becomes major when he
attains the age of eighteen years. For the welfare of the child, the court appoints the guardian
until he/she attains the age of majority. In some of the cases, 21 years of age is to be
considered as the age of majority.
Insane: It is explained in one of the cases named SK Yadav v State of Maharashtra. The
Supreme Court, in this case, stated that there is no specific way to check the insanity of the
person. It can only be determined preceding, accompanying, and after the event’s behaviors.
Lunatic: A lunatic is a person who had an understanding but by accident or some other
disease, he lost the use of his senses. A lunatic is a person who is sometimes in his senses and
sometimes not.
4. Rules related to Legal Disability under the Limitation Act, 1963
The rules related to legal disability are enshrined under sections 3,6,7,8 and 9 of the Limitation
Act, 1963. Section 3 is the most crucial section which provides for the time period in which a
person can file a suit beyond the concept of limitation which stops the person from filing the
suits. Section 4-24 contains the exceptions in case of extraordinary situations. There are three
grounds available on which a person can file a suit beyond the periods of limitation i.e. minor,
insane, and lunatic. Section 8 relates to section 6(2) in which the concept of multiple disabilities
is discussed and this section 8 states that the time period of limitation is 3 years after the death
of that very person or ceasing of his disability. Section 9 states that once the period has begun,
no further disability can reschedule its time period.
5. Rules enshrined under CPC related to Legal Disability
As per Order VIII, Rule 5(1) if a specific charge is not filed, the suit shall stand dismissed and if
the defendant has specifically denied or failed to recognize something then it will be admitted
specifically except against those persons who are suffering from legal disability.
Section 6(3) is to be r/w Order XXII which says that the legal representative can be a party to
the suit on the behalf of the deceased plaintiff.
As per Order XXII, if no legal representative of the deceased is left then the court can appoint
the administer general or such other officer as it thinks fit to represent his estate.
6. Case Laws
 Bapu Tatya Desai v Bala Raojee Desai
The purpose of section 7 of the Limitation Act, according to this instance, is to control the
alleged indulgence available to children in order to ensure that the advantage of section 6 of the
Limitation Act does not extend to a proportionally large number of minors but only until the
eldest of the group does not become a major.
 Smt. Usha Rani Banerjee & Ors. Vs. Premier Insurance Company Ltd, Madras & Ors
Section 7 is an exception to the principle laid down under section 6. The court held that if there
are many individuals filing one suit and any one of them is disabled then time will not go against
them until the disease ceased to exist. However, if one of the parties to the suit was competent
to discharge the other without the consent of the other, time would begin to run against both of
them.
 Lalchand Dhanalal v Dharamchand and Ors.
According to section 9 of the Limitation Act, a cause of action or grievance must arise when the
plaintiff dies, and the period of limitation is thus commenced, with no subsequent infirmity
leading to a reset of the clock. A plaintiff can only be entitled to compensation if he or she had
such a right at the time the statute of limitations commenced due to legal incapacity. Any later
illness on his part will not prohibit the limitation from running. As a result, he will be subject to
the same statute of limitations as the earlier limited owner, but if his claims are unrelated to the
earlier claimant’s plea, such a disability may be used to his advantage.
7. Conclusion
After analyzing the various aspects of legal disability under Limitation Act and Code of Civil
Procedure it can be said that there are some situations under which a person can file a suit or
move an application after the expiration of limitation period and it also provides us the facility of
filing a suit if a person dies before the said date. It also provides a remedy if there is no legal
representative. One of the defensive mechanisms is used to keep an eye on the people so that
they cannot misuse it. As per my understanding, this law is accurate enough as it prevents the
misuse to the provisions.

ORDER VIII- WRITTEN STATEMENT, SET-OF AND COUNTER- CLAIM

1. Written statement— (1) The defendant shall, at or before the first hearing or within such time
as the Court may permit, present a written statement of his defence.
(2) Save as otherwise provided in rule 8A, where the defendant relies on any document
(whether or not in his possession or power) in support of his defence or claim for set-off or
counter claim, he shall enter such documents in a list, and shall, —
(a) If a written statement is presented, annex the list to the written statement :
Provided that where the defendant, in his written statement, claims a set-off or makes a counter-
claim based on a document in his possession or power, he shall produce it in Court at the time
of presentation of the written statement and shall at the same time deliver the document or copy
thereof to be filed with the written statement;
(b) If a written statement is not presented, present the list to the Court at the first hearing of the
suit.
(3) Where any such document is not in the possession or power of the defendant, he shall,
wherever possible, state in whose possession or power it is.
(4) If no such list is so annexed or presented, the defendant shall be allowed such further period
for the purpose as the Court may think fit.
6. Particulars of set-off to be given in written statement—
(1) Where in a suit for the recovery of money the defendant claims to set-off against the
plaintiff's demand any ascertained sum of money legally recoverable by him from the plaintiff,
not exceeding the pecuniary limits of the jurisdiction of the Court, and both parties fill the same
character as they fill in the plaintiff's suit, the defendant may, at the first hearing of the suit, but
not afterwards unless permitted by the Court, presents a written statement containing the
particulars of the debt sought to be set-off.
(2) Effect of set-off—The written statement shall have the same effect as a plaint in a cross-suit
so as to enable the Court to pronounce a final judgment in respect both of the original claim and
of the set-off : but this shall not affect the lien, upon the amount decreed, of any pleader in
respect of the costs payable to him under the decree.
(3) The rules relating to a written statement by a defendant apply to a written statement in
answer to a claim of set-off.
Illustrations
(a) A bequeaths Rs. 2,000 to B and appoints C his executor and residuary legatee. B dies and
D takes out administration to B's effect, C pays Rs. 1,000 as surety for D: then D sues C for the
legacy. C cannot set-off the debt of Rs. 1,000 against the legacy, for neither C nor D fills the
same character with respect to the legacy as they fill with respect to the payment of Rs. 1,000.
(b) A dies intestate and in debt to B. C takes out administration to A's effects and B buys part of
the effects from C. In a suit for the purchase-money by C against B, the latter cannot set-off the
debt against the price, for C fills two different characters, one as the vendor to B, in which he
sues B, and the other as representative to A.
(c) A sues B and C for Rs. 1000. B cannot set-off a debt due to him alone by A.
(d) A owes the partnership firm of B and C Rs. 1,000 B dies, leaving C surviving. A sues C for a
debt of Rs. 1,500 due in his separate character. C may set-off the debt of Rs. 1,000.
6A. Counter-claim by defendant—
(1) A defendant in a suit may, in addition to his right of pleading a set-off under rule 6, set up, by
way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of
action accruing to the defendant against the plaintiff either before or after the filing of the suit but
before the defendant has delivered his defence or before the time limited for delivering his
defence has expired. whether such counter-claim is in the nature of a claim for damages or not :
Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the
Court.
(2) Such counter-claim shall have the same effect as a cross-suit so as to enable the Court to
pronounce a final judgment in the same suit, both on the original claim and on the counter-
claim.
(3) The plaintiff shall be at liberty to file a written statement in answer to the counter-claim of the
defendant within such period as may be fixed by the Court.
(4) The counter-claim shall be treated as a plaint and governed by the rules applicable to
plaints.
6B. Counter-claim to be stated— Where any defendant seeks to rely upon any ground as
supporting a right of counter-claim, he shall, in his written statement, state specifically that he
does so by way of counter-claim.
6C. Exclusion of counter-claim— Where a defendant sets up a counter-claim and the plaintiff
contends that the claim thereby raised ought not to be disposed of by way of counter-claim but
in an independent suit, the plaintiff may, at any time before issues are settled in relation to the
counter-claim, apply to the Court for an order that such counter-claim may be excluded, and the
Court may, on the hearing of such application make such order as it thinks fit.
6D. Effect of discontinuance of suit— If in any case in which the defendant sets up a counter-
claim, the suit of the plaintiff is stayed, discontinued or dismissed, the counter-claim may
nevertheless be proceeded with.
6E. Default of plaintiff to reply to counter-claim— If the plaintiff makes default in putting in
reply to the counter-claim made by the defendant, the Court may pronounce judgment against
the plaintiff in relation to the counter-claim made against him or make such order in relation to
the counter-claim as it thinks fit.
6F. Relief to defendant where counter-claim succeeds— Where in any suit a set-off or
counter-claim is established as defence against the plaintiff's claim and any balance is found
due to the plaintiff or the defendant, as the case may be, the Court may give judgment to the
party entitled to such balance.
6G. Rules relating to written statement to apply— The rules relating to a written statement
by a defendant shall apply to a written statement filed in answer to a counter-claim.

7. Defence or set-off founder upon separate grounds— Where the defendant relies upon
several distinct grounds of defence or set-off or counter-claim founded separate and distinct
facts, they shall be stated, as far as may be, separately and distinctly.
8. New ground of defence— Any ground of defence which has arisen after the institution of the
suit or the presentation of a written statement claiming a set-off or counter-claim may be raised
by the defendant or plaintiff as the case may be, in his written statement.
Can an appeal lie from an original decree ? As a right by an aggrieved person, can an
appeal lie from an ex parte decree ? Explain.
An appeal is a judicial examination of the decision of an inferior court, by a superior court i.e. it
is the removal of a cause from an inferior court to test the soundness of its decision, done by a
superior court. There is no formal definition of an “appeal” under the CPC 1908.
The Civil Procedure code 1908 provides for appeals under Sections 96 to 112 to be read with
Orders 41 to 45 of the Code. We shall discuss appeals under the following heads along with the
general procedure in appeals:
 First Appeals [Section 96-99A and Order 41]
 Second Appeals [Section 100-103, 107-108 and Order 43]
 Orders from which appeal lies [Section 104]
 Powers of Appellate Courts [Section 107]
 Appeal to the Supreme Court [Section 109,112 and Order 45]
Appeals from Original Decrees: Sec 96 of civil Procedure Code:
 Appeals from original decrees, which is performed by the appellate court, are preferred
in a court which is superior in rank to the Court passing the decree.
 Appeal for such decrees may lie on an original decree passed ex parte.
 No appeals will be placed if the decree is passed with the consent of the parties.
 The appeal from original decrees lies on a question of law.
 No appeal lies in any suit of the nature cognizable by Courts of small causes if the
amount or value of the subject matter of the original suit is confined to a sum of Rs.
10,000.
 The appellate court may remand a case to a trial court if the latter has dispensed of the
case without recording any findings.
 The decision of the appellate authority is conclusive.
 If an appeal under this provision is heard by a bench of multiple judges, the opinion of
the majority will be considered.
 In the absence of a majority, the original decree will stay.
 Where the bench digresses on any point of view, the same may be determined by any
number of the remaining judges of the court, and the decision shall be taken by a
majority of the judges hearing the appeal, which includes the judges who have heard it
originally.
 The judgement may confirm, modify or reverse the decree.
A party against whom an ex parte decree is passed can seek relief by the following
ways:
Set Aside: Applying to the Court which has passed such decree to set aside the decree.
Appeal: Preferring an appeal against the decree.
Review: Applying for revision ; and
Fraud: Suit on fraudulent grounds.
All the remedies are concurrent and can be prosecuted concurrently.
Setting Aside of the Ex Parte Decree: Application under Order IX Rule 13 of Code of Civil
Procedure dealing with Setting aside of decree ex parte against the defendant can be
entertained only the following two grounds:
 Where summons were not duly served
 Where defendant was prevented from sufficient cause from appearing where the fact
called for hearing.
However, this rule is available only if the person against whom the ex parte decree is passed on
grounds of default of appearance as per Rule 6 Order IX. Under this rule only the defendant-
petitioner can avail this remedy. Non- party to the suit cannot apply through this rule unless if
he proves that his interest is affected by such decree.
Setting aside an ex-parte decree under Order 9 Rule 13 CPC
Order 9 Rule 13 provides a remedy for the defendant to apply to set aside the ex-parte decree
which was passed due to the non-appearance of the defendant in the civil suit. The court only
sets aside the ex-decree when the defendant presents a satisfactory reason in court or the
summons is not served well.
Summons duly not served well:
When the suit is filed in court, from the filing date of the suit to thirty days afterwards, the
summons must be served to the defendant. The summons is the official notice that the
defendant must appear in court on their behalf. But there are certain scenarios, such as the
postal address being incorrect or changed, where the plaintiff has not paid the fees. When the
summons is not served properly to the defendant or the defendant does not get enough time to
appear before the court. Then the court may set aside the ex parte decree.
In Sushil Kumar Sabharwal v. Gurpreet Singh and Ors (2002), the Court admitted that the
summons was not duly served to the defendant and that the defendant did not have enough to
be present in court.
In Guwahati University v. Shri Niharlal Bhattacharjee (1995), the Supreme Court stated that
when the summons was not served properly, the limitation period begins when the appellant
knew of the ex parte decree.
Sufficient cause:
When the court finds sufficient grounds for the non-appearance of the defendant, the court will
set aside the ex parte decree. The term ‘sufficient cause’ is not defined in the code. The court
will determine through its interpretation in different cases. The defendant has the burden of
proof to prove sufficient cause for non-appearance in court.
In G.P. Srivastava v. Shri R.K. Raizada & Ors. (2000), the Court said that if the party is not able
to set any ‘sufficient cause’ for his nonappearance on the fixed date then the ex parte
proceedings will be initiated against him.
In New Bank of India v. M/S. Marvels (India) (2001), when the appellant was not able to present
sufficient cause in the court and was found negligent in presenting his case, the court could not
set aside the decree.
In Parimal v. Veena @ Bharti (2011), the Supreme Court stated that the term ‘sufficient cause’
means the defendant did not act negligently and genuinely wanted to be present when the case
was summoned for hearing and used his best effort to do so.
Remedies against ex-parte decree
When a defendant presents sufficient cause before the court for non-appearance the ex-parte
decree can be set aside. Once the court accepts the defendant’s reason, it will set aside the
decree. The civil code provides remedies that a defendant can use to set aside the decree
passed by the code and get the opportunity to represent his case.
A defendant against whom an ex-parte decree has been issued has the following remedies:
1. Application to set aside the ex-parte decree under Order 9 Rule 13.
2. Appeal against the decree under Section 96(2)
3. File a revision under Section 115
4. Apply for review under Order 47 Rule 1
5. Suit on the ground of fraud by the plaintiff.
Application under Order 9 Rule 13 CPC
A defendant can make an application under this order because the summons had not been
served properly and he had sufficient grounds for the nonappearance before the court. The
defendant has a thirty days time period to apply, setting aside the suit. If the plaintiff did not
appear, he may apply to set aside the order of dismissal after the lawsuit has been dismissed.
The order dismissing the lawsuit may be reviewed and a date set for its continuation if the court
finds the reason for non-appearance to be a sufficient justification.
In the case of Chhotalal Mohanlal v. Ambalal Hargovan (1925), the Bombay High Court stated if
the party came late and a decree had been passed, then the party was entitled to restore his
suit after paying the cost to the court.
In Subodh Kumar v. Shamim Ahmed (2019), the Supreme Court held that if the defendant
proves that the summons had not been served properly, then the court could set aside the ex
parte decree passed against all the defendants.
An appeal under Section 96(2) CPC
The defendant can also make an appeal against the ex parte decree under Section 96 (2) of the
Code before the special bench of the High Court. The defendant has a statutory right to appeal
under Section 96 (2) of the Code and it can not be denied because the application filed under
Order 9 Rule 13 was dismissed. This Section states that the aggrieved party against whom a
decree was passed has at least one right to file an appeal to the higher authorities.
In Bhivchandra Shankar More v. Balu Gangaram More and others (2019), the Supreme Court
held that the right to appeal is a statutory and substantive right of the party, and such rights
cannot be taken away from the defendant. Hence, the defendant can use both the remedies
application under Order 9 Rule 13 and the appeal under Section 96 (2) of the Code.
Revision application under Section 115 CPC
When there is no appeal available against the decree, the defendant can file a revision
application under Section 115 of the Code in the High Court. The High Court has the authority to
examine the orders and decrees passed by its subordinate courts when the subordinate court
fails to exercise its jurisdiction and fails to settle the matter, or when the subordinate court does
not have jurisdiction over the matter. The defendant can appeal the revision application when
the final decree has been pronounced or the High Court can also take it suo moto. The deadline
to submit a revision application is 90 days from the degree or order that is being sought to be
revised.
The High Courts have been given revisional authority to provide the aggrieved party with a
remedy if the justice process is hampered by statutory mistakes. If it is determined that a
subordinate court has not acted according to the power provided to it by law within its
jurisdiction, the High Court has been given the authority to review the matter.
In the case of Chandu S/O Jagannath Ambekar v. Digambar S/O Kisanrao Kulkarni (2004), the
Bombay High Court held that an application under Section 115 of the CPC is not maintainable
because it can be only when the aggrieved party does not have a remedy to file an appeal
under Section 96 of the Code and when the final order has been passed.
Review application under Order 47 Rule 1 CPC
The defendant can apply to Order 47 Rule 1 and Section 114 of the Code to review the order
passed by the court. A review application can be filed when there is some new evidence
discovered, any fault discovered by the court, or any sufficient cause. Any aggrieved party can
file a review application against whom a decree has been passed, and an appeal is allowed
from that decree, but no appeal is filed. A review application shall be filed within thirty days after
the decree has passed.
There is no legal restriction on filing an appeal from such a decree or order once the review
application is filed. The review application cannot be extended if the appeal is so preferred and
resolved by the speaking order, i.e., on merits, before the review application. When the court
does not find sufficient grounds for review of the application, it will be dismissed. But if the court
agrees that it does, then the request will be granted and also serve notice on the opposing party
to provide him with the opportunity to appear and defend the decree or order under review.
In the case of Chajju Ram v. Neki (1922), the Court stated that the review application was
permitted on three grounds, i.e., new material found, mistake or error, or any sufficient ground.
There is no doubt that the third ground mentioned widens the scope of the grounds for review,
but at the same time, that “sufficient reason” must be at least similar to either of the other two
grounds.
In the case of Parsion Devi and Ors. v. Sumitri Devi And Ors. (1997), it was stated that if there
is a mistake or error that is obvious from the record’s surface, then the judgement may be
subject to review. It is difficult to claim that a mistake that needs to be proven through rational
analysis is obvious from the record on its own and justifies the Court using its review authority
under Order 47 Rule 1 CPC.
In the case of Union of India v. Nareshkumar Badrikumar Jagad & Ors. (2018), the Supreme
Court held that any person who is affected by the judgement can take the remedy of a review
petition.
Suit on the grounds of fraud:
A defendant can file a suit if the plaintiff obtained an ex parte decree by committing fraud
against the defendant. The burden of proof is on the defendant to prove in the court the ex parte
decree that has been passed is fraudulent.
If it is proved in the court that the suit filed by the plaintiff does not disclose the cause of action
or the suit is barred by the limitation act, the court can reject the plaint filed by the plaintiff.
Limitation for filing an appeal
After receiving the summons from the court, the defendant will have thirty days to file his written
statement against the plaintiff’s plaint. The defendant either accepts the claims made in the
plaint or rejects them. The defendant can also raise new facts in his written statement. Order 8
Rule 2 of the CPC deals with the written statement. A written statement can be filed by the
defendant itself or by its legal representative. If the defendant fails to file the written statement
within thirty days, then the defendant will have ninety days to file the written statement. The
reason for the time extension is recorded, and it will not be extended anymore.
When there is more than one defendant in a suit, they can file one written statement, which is
duly signed by all the defendants. Defendants can also file different written statements. If the
defendant fails to submit the written statement within one hundred twenty days(i.e., 30 days plus
90 days), then the court will pass an ex parte decree and the defendant’s right to file a written
statement will be forfeited.
In the case of SCG Contracts India Pvt Ltd v. K S Chamankar Infrastructure (2019), the
Supreme Court held that the defendant has 120 days to file a written statement. If the defendant
fails to file, their rights will be forfeited. The court shall not allow the recording of the statement
under Order 8 Rule 1, and the court does not have the power to accept the written statement
after the expiry of 120 days as per the provisions of Order 8 Rule 10.
What are those assets that can be distressed and sold in the execution of decree ? What
are those assets that cannot be distressed and sold in the execution of decree ?
Describe.
Property which can be attached
Section 60 CPC, 1908 describes the property which can and cannot be attached while
execution. Several types of property are liable for attachment and sale in execution of a decree
like lands, houses or other buildings, goods, money, banknotes, checks, bills of exchange,
hundis, government securities, bonds or other securities etc., and things on which he has a
disposing power. There is express mention of particulars which shall not be liable for attachment
or sale. The decree as mentioned in this section is only a money decree and it does not
include a mortgage decree. Therefore, it is important that the property not only belongs
to the judgement-debtor but also he has disposing power on it.
Property which cannot be attached
Some kind of property which cannot be attached and sold in execution of a decree is expressly
mentioned in Section 60 of the Code of Civil Procedure. Particulars like wearing apparel,
cooking vessels, beds, tools of artisans, books of accounts, any right of personal service, wife
and children, stipends and gratuities allowed to pensioners of the Government etc. and many
more.
Describe the inherent powers of the Courts.
Meaning of ‘inherent’ is existing in something as a permanent, absolute, inseparable, essential
or characteristic attribute. Inherent powers of courts are those powers which may be
applied by the court to perform full and complete justice between the parties before it.
Section 151 of the Civil Procedure Code deals with the inherent powers of the court.
Enlargement of time
Section 148 of the CPC states that where any term is fixed or awarded by the Court for the
doing of any act provided by CPC, it is the discretionary power of the Court that Court may
enlarge such period from time to time, even though the term originally fixed or awarded may
have departed.
In simple words, when a term is fixed by provision for the doing of any act, the Court has
the power to extend such period up to 30 days. This power is exercisable in the deficiency of
any specific provision to the contrary which reduces or rejects or withholds the period. The
power is limited to the extension of the time fixed by it and is of a discretionary nature.
Payment of court fees
According to Section 149 of CPC, “Where the entire or a portion of any fee commanded for
any certificate by the law for the time being in force relating to court-fees has not been met, the
Court may, in its discretion, at any step, permit the person by whom such fee is payable, to pay
the whole or part as the case may be, of such court-fee; and upon such payment, the document,
in regard of which such fee is payable, shall have the same force and result as if such fee had
been paid in the initial situation.”
It permits the court to allow a party to make up for the lack of court fees due on a
complaint or notice of appeal etc., even after the expiry of the limitation period for filing
of the lawsuit or appeal, etc. Payment of the expected court fee is compulsory for any
document imputable with court-fee to be presented in the court. If the necessary court fee is
paid within the time set by the court, it cannot be negotiated as time-barred. Such payment
made within the time fixed by the court retrospectively validates a faulty document. The power
of the court is discretionary and must be exercised only in the importance of justice.
Transfer of business
According to Section 150 of CPC, “Save as otherwise granted, where the business of any
Court is assigned to any other Court, the Court to which the business is so assigned shall have
the same authority and shall make the same duties as those sequentially presented and forced
by or under this Code upon the Court from which the business was so assigned.”
For example- When the business of a court A is transferred to any other court B, the
court B will exercise the same power or perform the same duties given or commanded by
CPC upon the transfer court.

Section 151 of CPC

Section 151 deals with “Saving of inherent powers of Court.” This Section states that
‘Nothing in CPC shall be considered to restrict or otherwise affect the inherent power of
the Court to make such orders as may be important for the ends of justice or to limit
abuse of the method of the Court.’ It is not obligatory for the court to wait for the law
made by parliament or order from the higher judiciary. Court has discretionary or
inherent power to make such order which is not given in terms of laws for the security of
justice or to check misuse of the method of the Court.
The scope of exercising of Section 151 of CPC can be represented by some cases as follows:
 The court may recheck its orders and resolve errors;
 Issuance of provisional sanctions when the case is not included by order 39 or to place
alongside an ‘ex parte’ order; In civil procedure, ex parte is used to refer
to motions for orders that can be granted without waiting for a response from the other
side. Generally, these are orders that are only in place until further hearings can be held,
such as a temporary restraining order. Typically, a court will be hesitant to make an ex
parte motion. This is because the Fifth Amendment and the Fourteenth
Amendment guarantee a right to due process, and ex parte motions--due to their
exclusion of one party--risk violating the excluded party's right to due process.
 Illegal orders or orders passed without jurisdiction can be set-aside;
 Subsequent events in the case can be taken into consideration by the court;
 Power of Court to continue trial ‘in camera’ or prevent disclosure of its proceedings;
 The court can erase remarks made against a Judge; and
 The court can improve the suit and re-hear on merit or re-examine its order.
Ends of justice
In the case of Debendranath v Satya Bala Dass, the meaning of “ends of justice” was explained.
It was held that “ends of justice” are solemn words, also these words are not merely a polite
expression as per juristic methodology. These words also indicate that Justice is the pursuit and
end of all law. However, this expression is not vague and indeterminate notion of justice
according to laws of the land and statutes.
The Court is allowed to exercise these inherent powers in cases like- to recheck its own order
and correct its error, to pass injunction in case not included by Order 39, and an ex parte order
against the party, etc.
Abuse of process of the court
Section 151 of the CPC provides for the exercise of inherent powers to check the infringement
of the process of the court. Abuse of the powers of the court which happens in unfairness to
party needs to get relief on the ground that the act of a court shall not prejudice anyone. When a
party practices fraud on the court or on a party to a proceeding, the remedies have to be
provided on the basis of inherent power.
The word ‘abuse’ is said to occur when a Court uses a method in doing something that it is
never expected to do is the perpetrator of the said abuse and there is a failure of justice. The
injustice so done to the party must be given relief on the basis of the doctrine of actus curiae
neminem gravabit (an act of the court shall prejudice no one). A party to a case will become the
perpetrator of the abuse in cases when the said party does acts like obtaining benefits by
functioning fraud on the Court or a party to the proceedings, prompting the multiplicity of
proceedings, etc.
Amendment of judgments, decrees, orders, and other records
Section 152 of CPC deals with the “Amendment of judgements, decrees, and order.” According
to Section 152 of CPC, Court has the power to change (either by own actions or on the
application of any of the parties) written or arithmetical mistakes in judgments, decrees or orders
or faults arising from an unexpected lapse or imperfection.
Section 153 deals with the “General authority to amend.” This Section empowers the court to
amend any fault and error in any proceedings in suits and all required improvements shall be
made for the purpose of arranging raised issues or depending on such proceeding.
Section 152 and 153 of the CPC makes it clear that the court may set correct any blunders in
their experiences at any time.
Power to amend decree or order where an appeal is summarily dismissed and place of the trial
to be deemed to be open Court are defined under Section 153A and 153B of CPC,1908.

Limitation
The exercise of inherent powers carries with it certain barriers such as:
 They can be applied only in the deficiency of particular provisions in the Code;
 They cannot be applied in dispute with what has been expressly given in the code;
 They can be applied in rare or exceptional cases;
 While operating the powers, the court has to follow the method shown by the legislature;
 Courts can neither exercise jurisdiction nor entrust in them by law;
 To abide by the principle of Res Judicata i.e., not to open the issues which have already
been decided finally;
 To pick a mediator to make an award afresh;
 Substantive rights of the parties shall not be taken away;
 To limit a party from taking proceedings in a court of law; and
 To set apart an order which was valid at the moment of its issuance.
Summary of Provisions of Inherent powers of Courts
A summary of Section 148 to Section 153B is that the powers of the court are quite deep and
extensive for the scope of:
 Reducing litigation;
 Evade multiplicity of proceedings; and
 To supply full and complete justice between the parties.

Define Public nuisances. Describe briefly the procedure prescribed for the suit by or
against Government or Public Officers.
Introduction:-
In the modern time, the public nuisance are numbers whether it is the noise of the
loudspeakers, the noise of the construction, honking of the horns unnecessarily, blocking the
sunlight in public Park, etc. Nuisance can be classified into two categories: Public Nuisance and
Private Nuisance.
Here we will discuss only the suit relating to the Public nuisance. Public Nuisance drives sports
from section 91 of CPC that laid down the procedure for Institution of a civil suit for the offence
of public nuisance. This section provides for the filing of suit in the case of a public nuisance all
other wrongful acts affecting the public at large. It stays that the suit can be instituted for
declaration, injunction or other relief which may be appropriate in the circumstances of the case.
 Sec. 91 of the CPC – Public nuisances and other wrongful acts affecting the public:
In the case of a public nuisance or other wrongful act affecting, or likely to affect, the public, a
suit for a declaration and injunction or for such other relief as may be appropriate in the
circumstances of the case, may be instituted, -

(a) By the Advocate-General, or

(b) With the leave of the Court, by two or more persons, even though no special damage
has been caused to such persons by reason of such public nuisance or other wrongful
act.

Meaning of Public Nuisance:

The term public nuisance has not been defined in the Code of Civil Procedure. However,
according to the section 268 of IPC, it can be said to be an act, omission which cause common
injury, danger or annoyance to the public or to the people in general who dwell or occupy
property in the vicinity or which must necessarily cause injury, obstruction, danger or annoyance
to the persons who may have occasion to use public rights.
There are some examples of public nuisance like; pollution of public waterways, the noise of
loudspeakers, obstruction of a public highway, ringing of a day and night, unnecessarily honking
of the horns, etc.
Who may sue ?
A suit may be instituted by the following persons, relating to a public nuisance or other wrongful
act;
1. By Advocate General;
2. By two or more persons with the leave of the court; or
3. By any private person if he has sustained special damage.
What are the remedies ?
There are some remedies which are available against public nuisance as follows:-
1. A person committing a public nuisance may be punished under section 290 of the Indian Penal
Code;
2. Magistrates may remove public nuisance in certain case circumstances by exercising
summary power under section 133 and 143 CRPC;
3. A suit can be instituted for the declaration, injunction or other appropriate relief without proof of
separation damage under section 91(1)(b) CPC.
4. A suit may also be filed by a private individual, where he has sustained special damages under
section 91 (1) CPC.
Appeal:-
An appeal lies against an order refusing to grant leave to file a suit for public nuisance or other
wrongful act affecting the public, section 104 CPC (Orders from which appeal lies).
Under the Civil Procedure Code, the subject of suits by or against public officers in their official
capacity has been recognized under Section 79, Section 80 and Order 27 of CPC.
Section 79- This Section defines the concept of suits by or against the government: Whenever
a case is filed against a government or if it is filed by the government, the plaintiff and the
defendant who will be named in the case will be as provided under:
 Whenever the case is instituted by or against the central government, the Union of India
will be represented as the required plaintiff or defendant respectively.
 Whenever the suit is filed by or against the state government, the state government will
be required to act as the plaintiff or the defendant.
Section 80- This section deals with the concept of Notice. According to this Section, there
exists no onus for the institution of a suit against the government without issuing a notice
regarding the same. With respect to institution of a suit against a public officer, with respect to
the act done by him in his official capacity, there is again a need for issuance of notice regarding
the same. Further, the notice should be served two months prior to the institution of the
suit and it should be made sure that such a notice was delivered or left at the office of:
 Whenever the case is against the central government, and it does not relate to the
railways then, the notice should be delivered to the secretary of the government.
 Whenever a case has been instituted against the central government and it relates to the
railways then, the notice is to be served to the General Manager of that railways.
 Whenever the case is instituted against any of the state governments then, the notice is
to be served either to the secretary to that government or to the collector of the district.
Scope of Section 79
For the purpose of better understanding of Section 79 of Civil Procedure Code, there arises a
need for further fragmentation of the Section into various subtopics like that of the jurisdiction of
Section 79 and the institution of suit against the railways which will be looked into in the next
part of this article.
Section 79
Section 79 lays down the procedure whereby the suits are brought by or against the
government but at the same time, it does not deal with the rights and liabilities enforceable by or
against the government body. In the case of Jehangir v. Secretary of State, an important
observation was made which was that this section gives no cause of action but only declares
the mode of the procedure when the cause of action arises.
Jurisdiction
Under Section 79, only the court within whose local limits, the cause of action arose, has the
jurisdiction to try the suit and otherwise it cannot. In the case of Dominion of India v. RCKC Nath
& Co., it was held that words like ‘dwell’ or ‘reside’ or ‘carry on business’ which are mentioned in
Section 18, 19 and 20 of code, do not apply to the government.
Suit against Railway
If the railway is administered by the union of India or a State, then any suit to enforce a claim
against railway administration can be brought against the Union of India or State, and this may
not include making the railway administration a part of the suit. But on the other hand whenever
there is a requirement for a suit for freight for carrying goods, then such a suit can be instituted
by the Union of India, and this was held in the landmark case of Union of India v. RC Jall.
In the case of Secretary of State v. Rustom Khan, there was a significant observation made
regarding the liability to be sued, under Section 79 of CPC. No suit could lie against the East
India Company in respect of the act of state or acts of sovereignty, and therefore no suit in
respect of such acts would be competent.
Section 80
This part of the article will include under its ambit the detailed analysis of Section 80 of Civil
Procedure Code, and for the purpose of better understanding, the subtopics are to be studied
by breaking them down under the Section of nature and liability, contents of the notice, effect of
non-compliance and waiver of notice.
Nature and Object
The object laid down by this Section is- there should be an opportunity conferred on the part of
the Secretary of the State or the Public officer to reconsider his legal position in order to make
amends or settle down the claim if so advised. This can further be done without litigation or
afford restitution or without recourse to court of law. Whenever a statutory notice is issued to
public authorizes, they are required to further take notice in all seriousness and they are not
required to sit over it and force the citizen to the redundancy of litigation.
Contents of the Notice
Notice under Section 80, is required to contain the following aspects: name, description,
residence of the plaintiff, the cause of action and lastly the relief which the plaintiff claims. Also,
the notice is required to convey to its recipients, sufficient information to enable him to consider
the claim, which was held in Union of India v. Shankar Stores. The above-mentioned particulars
should be given in such a way that, it enables the authorities to identify the person giving the
notice.
Effect of Non-Compliance
Non-compliance with the requisites of this Section or any omission in the plaint which is required
would result in the rejection of the plaint under Order 7, Rule 11. If the suit is against a public
official and a private individual, and no notice is served on the public officer, the plaint is not to
be rejected but the suit is carried on with the name of the public officer struck off.
Waiver of Notice
As the requirement of the notice is just procedural and not substantive, and as it is for the
benefit of the public officer or the government, it is open to government and public officers to
waive it. If the defendant wants to rely on the invalidity of the notice, it is for him to raise a
specific issue on the point, this was held in the case of Lalchand v. Union of India.
Order XXVII
1- Suits by or against the government- It should be noted that in any suit by or against the
government, the plaint or the written statement should be signed by such a person, as the
government by general or special order, appoint in this behalf. State of Rajasthan v. Jaipur
Hosiery Mills, in this case, it was held that the sanction to sign must be prior to the institution,
and if not complied with this, the signing shall be by an incompetent person, and further, issuing
of a retrospective sanction will not preserve the defect.
Government pleader is an agent under the order 27 of CPC. The government pleader acts as
an agent for receiving processes issued against the government. Also he is the only person to
intimate the court that he is representing the government and no stamped power of attorney or
vakalatnama is required for the same.
Lutfar Rahman v. State of West Bengal. In the aforementioned case, it was held that when a
person other than the government pleader wants to act as an agent, it is possible only when the
government agent intimates the Court that the former is acting under his directions. Rule 5 of
Order 27, has been discussed in the next segment of this article.
2- Attendance of person being able to answer the questions related to suits against the
government- The court may, in any case where government pleader is not accompanied by
person on the part of the government and if he is able to answer the questions relating to suit,
the court may direct the attendance of that person.
Comments and Suggestions
The amendment made in Section 80 is seen as that of a significant one, as it has acted as an
added advantage while dealing with the case, clause (2) and (3) were added to Section 80 by
the amendment of 1976. Sub Clause (2) has been inserted to permit the institution of the suit
without notice, but it must be accepted only after giving a reasonable opportunity of showing
cause in respect of relief claimed [16]. Sub-section (3) on the other hand prohibits the dismissal
of a suit where the notice has been served but suffers from certain technical deficiencies.
It should also be taken into consideration that there exist various instances where there were
widespread abuse and misuse of the concerned section by the government and public officials
in order to dispose of the litigation on the grounds of technicality, and this aspect of the
provision should be given more attention in order to overcome the negative aspects which exist
in it. Moreover, sub-section (3) was included in the Section in order to offer a better clarification
that no suit against the government or a public officer can be dismissed merely on the grounds
of existence of defect or error in the notice.
Conclusion
Hence, all the three provisions which bring to light the various procedures and rules involved in
the suit by or against the government or a public officer have been discussed and analyzed in
detail. It can be said that the applicability of these sections must be determined by the law as it
 stands. Further, if the procedure lay down by the rule in these sections is not followed, then the
court is to proceed with the footing that there is no appearance of government pleader on behalf
of the public officer. And lastly, the rules laid down in Order 27 are to be strictly abided by while
filing a suit.
In addition to all the above-mentioned aspects, the sections regarding suits by or against the
government and public officers also specify the procedure to be followed while filing of a writ
and also what steps to be taken when there is permanent suit on appeal or if there is a revision.
There is also mention of the nature and applicability of Section 80 of the civil procedure code,
and this section drags its attention towards the matter whether the serving of notice is a mere
formality or is it a mandatory aspect under the section. Lastly, the section also deals with the
aspect of what acts come under the arena of official capacity.

Explain the facts and principle laid down in the case of Kiran Singh & others vs. Chaman
Paswan & others, AIR 1954 SC 340.
Kiran Singh And Others vs Chaman Paswan And Others on 14 April, 1954
Equivalent citations: 1954 AIR 340, 1955 SCR 117
Facts
The appellants instituted the suit for recovery of possession of 12.51 acres of land of
which defendants are the proprietors (proprietor is a person enjoying exclusive right of
ownership to some property).
Plaintiffs were tenants on payment of certain sum of money and were put into
possession of the land by the defendants. The allegation was that the defendants
trespassed on the land and carried away the crops.
The suit was filed for mesne profits. (If it is determined the party using the land did not have
legal ownership, the true owner can sue for some or all of the profits made in the interim by the
illegal tenant, which are thus called “mesne profits” ). The plaintiffs prayed that their land be
given to them with past and pendent lite profits as well. The plaintiffs valued their suit at Rs
2,950 which includes Rs 1,950 as Gift and Rs 1,000 as pendent lite profit and paid court fee,
stamp duty according to that. Pendente lite is a Latin term meaning "awaiting the litigation"
or "pending the litigation" which applies to court orders which are in effect while a matter
is pending. Pendente lite should not be confused with lis pendens. Lis pendens also
means "a pending lawsuit", but lis pendens is a document filed in the public records of
the county where particular real property is located stating that a pending lawsuit may
affect the title to the property.
 Plaintiffs filed the suit in the subordinate court and valued the suit themselves and paid
the court fees on that valuation under the Suits Valuation Act, 1887.
 Subordinate court decided the case in favour of the defendants. On the basis of the suit
valuation, District Court had the jurisdiction to hear the appeal and therefore the plaintiffs
appealed in District Court after which they appealed to High Court where the Court
determined the correct valuation of the suit was Rs 9,980 and not Rs 2,950.
On the basis of undervaluation of the suit, which the plaintiff had themselves decided on their
own and contented that the order of the District Court was a nullity since the District Court had
no jurisdiction to hear the first appeal and the first appeal was to be heard by High court on the
basis of the corrected valuation.
ISSUE
1. Can a decree passed on appeal by a court which had jurisdiction to entertain it only by reason
of undervaluation, be set aside on the ground that on a true valuation that court was not
competent to entertain the appeal?
LAW
1. Referring to judgment in Ramdeo Singh v. Raj Narain, in which it was held that – decision of the
District Court could be reversed only when the appellants could establish prejudice on the
merits. However in the present case, no prejudice was shown to have taken place.
2. “It is a fundamental principle well established that a decree passed by a court without
jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought
to be enforced or relied upon, even at the stage of execution and even in collateral
proceedings.”
The court observed that if the question of jurisdiction was to be decided only on the application
of general principles governing the matter, there could be no doubt that the District Court was
coram non judice [Coram non judice, Latin for "not before a judge", is a legal term typically
used to indicate a legal proceeding that is outside the presence of a judge (or in the presence of
a person who is not a judge), with improper venue, or without jurisdiction] and that the judgment
and decree would be nullities. However, Section 11 of the Suits Valuation Act was also
relied upon and a technicality like undervaluation of the Court fees was not held to be
ground for nullity of decision of District Court when no Prejudice on merits was caused
to the plaintiffs by District Court’s decision.
3. “A defect of jurisdiction, whether it is pecuniary or territory, or whether it is in respect of the
subject-matter of the action, strikes at the very authority of the court to pass any decree, and
such a defect cannot be cured even by consent of parties.”
HELD
1. The court came upon conclusion to the question – Whether the appellants have suffered any
prejudice by reason of the undervaluation (adverse effect on account of the judgment of the
Court of District Judge) ?
“…… the party who has resorted to a forum of his own choice on his own valuation cannot
himself be heard to complain of any prejudice. Prejudice can be a ground for relief only when it
is due to the action of another party and not when it results from one’s own act.” Court held that
no prejudice was caused to the appellants by their appeal having been heard by the District
Court.
2. The decision of the learned Judges that: “There were no grounds for interference under Section
11 of the Suits Valuation Act” is correct.” Section 11 of the Suits Valuation Act, 1887 describes
the procedure where objection is taken on appeal on revision that a suit or appeal was not
properly valued for jurisdictional purposes.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 14 of 1953.

 Appeal by special leave granted by the Supreme Court, by its Order dated the 29th
October, 1951, from
 the Judgment and Decree dated the 19th July, 1950, of the High Court of Judicature at
Patna (Sinha and Rai JJ.)
 in appeal from Appellate Decree No. 1152 of 1946 from
 the Judgment and Decree dated the 24th day of May, 1946, of the Court of the 1st
Additional District Judge in Single Judge Title Appeal No. I of 1946 arising out of
 the Judgment and Decree dated the 27th November, 1945, of the First Court of
Subordinate Judge at Monghyr in Title Suit No. 34 of 1944.
Judgment dated 14/4/1954
 The appellants instituted the suit out of which this appeal arises, in the Court of the
Subordinate Judge, Monghyr, for recovery of possession of 12 acres 51 cents of land
situated in mauza Bardih, of which defendants Nos. 12 and 13, forming the second
party, are the proprietors.
 The allegations in the plaint are that on 12th April, 1943, the plaintiffs were admitted by
the second party as occupancy tenants on payment of a sum of Rs. 1,950 as salami and
put into possession of the lands,
 and that thereafter, the first party consisting of defendants Nos. 1 to 11 trespassed on
them and carried away the crops.
 The, suit was accordingly laid for ejecting defendants Nos. I to II and for mesne profits,
past and future, and it was valued at Rs. 2,950, made up of Rs. 1,950 being the value of
the relief for possession and Rs. 1,000, being the past mesne profits claimed.
 Defendants Nos.- I to II contested the suit. They pleaded that they had been in
possession of the lands as tenants on batai system, sharing the produce with the
landlord., from fasli 1336 (Fasli year means the period of 12 months from July to June)
and had acquired occupancy rights in the tenements, that the second party had no right
to settle them on the plaintiffs, and that the latter acquired' no rights under the settlement
dated 12th April, 1943. Defendants Nos. 12 and 13 remained ex-parte.
 The Subordinate Judge held, relying on certain receipts marked as Exhibits A to A-114
which were in the handwriting of the patwaris of the second party and which ranged over
the period from fasli 1336 to 1347, that defendants Nos. I to II had been in possession
for over 12 years as cultivating tenants and had acquired occupancy rights, and that the
settlement dated 12th April, 1943, conferred no rights on the plaintiffs. He accordingly
dismissed the suit.
 The plaintiffs preferred an appeal against this decision to the Court of the District Judge.
Monghyr, who agreed with the trial Court that the receipts, Exhibits A to A-114 were
genuine, and that defendants Nos. I to 11 had acquired occupancy rights, and
accordingly dismissed the appeal.
 The plaintiffs took up the matter in second appeal to the High Court, Patna, Second
Appeal No. 1152 of 1946, and there, for the first time; an objection was taken by the
Stamp Reporter to the valuation in the plaint and after enquiry, the Court determined that
the correct valuation of the suit was Rs. 9,980.
 The plaintiffs paid the additional Court-fees required of them, and then raised the
contention that on the revised valuation, the appeal from the decree of the Subordinate
Judge would lie not to the District Court but to the High Court, and that accordingly
Second Appeal No. 1152 of 1946 should be heard as a first appeal, ignoring the
judgment of the District Court.
 The learned Judges held following the decision of a Full -Bench of that Court in Ramdeo
Singh v. Raj Narain, I.L.R. 27 Patna 109; A.I.R. 1949 Patna 278, that the appeal to the
District Court was competent, and that its decision could be reversed only if the
appellants could establish prejudice on the merits, and holding that on a consideration of
the evidence no such prejudice had been shown, they dismissed the second appeal.
The matter now comes before us on special leave. It will be noticed that the proper Court
to try the present action would be the Subordinate Court, Monghyr, whether the
valuation of the suit was Rs. 2,950 as given in the plaint, or Rs. 9,880 as determined by
the High Court; but it will make a difference in the forum to which the appeal from its
judgment would lie, whether the one valuation or the other is to be accepted as the
deciding factor. On the plaint valuation, the appeal would lie to the District Court; on the
valuation as determined by the High Court, it is that Court that would be competent to
entertain the appeal. The contention of the appellants is that as on the valuation of
the suit as ultimately determined, the District Court was not competent to
entertain the appeal, the decree and judgment passed by that Court must be
treated as a nullity, that the High Court should have accordingly heard Second
Appeal No. 1152 of 1946 not as a second appeal with its limitations under section
100 of the Civil Procedure Code but as a first appeal against the judgment and
decree of the Subordinate Judge, Monghyr, and that the appellants were entitled
to a full hearing as well on questions of fact as of law.
 And alternatively, it is contended that even if the decree and judgment of the District
Court on appeal are not to be treated as a nullity and the matter is to be dealt with
under section 11 of the Suits Valuation Act, the appellants had suffered "Prejudice"
within the meaning of that section, in that their appeal against the judgment of the
 Subordinate Judge was heard not by the High Court but by a Court of inferior
jurisdiction, viz., the District Court of Monghyr, and that its decree was therefore liable to
be set aside, and the appeal heard by the High Court on the merits, as a first appeal.
 We have now to see whether the appellants have suffered any prejudice by reason of
the under-valuation. They were. the plaintiffs in the action. They valued the suit at Rs.
2,950. The defendants raised no objection to the jurisdiction of the Court at any time.
When the plaintiffs lost the suit after an elaborate 17 130 trial, it is they who appealed to
the District Court as they were bound to, on their valuation. Even there, the defendants
took no objection to the jurisdiction of the District Court to hear the appeal. When the
decision went on the merits against the plaintiffs, they preferred S. A. No. 1152 of 1946
to the High Court of Patna, and if the Stamp Reporter had not raised the objection to the
valuation and to the Court-fee paid, the plaintiffs would not have challenged the
jurisdiction of the District Court to hear the appeal. It would be an unfortunate state of the
law, if the plaintiffs who initiated proceedings in a Court of their own choice could
subsequently turn round and question its jurisdiction on the ground of an error in
valuation which was their own. If the law were that the decree of a Court which would
have had no jurisdiction over the suit or appeal but for the over-valuation or
undervaluation should be treated as a nullity, then of course, they would not be estopped
from setting up want of jurisdiction in the Court by the fact of their having themselves
invoked it. That however, is not the position under section 11 of the Suits Valuation Act.
Why then should the plaintiffs be allowed to resile (abandon a position or a course of
action) from the position taken up by them to the prejudice of their opponents, who had
acquiesced (to accept something without argument, although you may not agree with it)
therein ?
 We are satisfied that no prejudice was caused to the appellants by their appeal having
been heard by the District Court. There was a fair and full hearing of the appeal by that
Court; it gave its decision on the merits on a consideration of the entire evidence in the
case, and no injustice is shown to have resulted in its disposal of the matter. The
decision of the learned Judges that there were no grounds for interference under section
11 of the Suits Valuation Act is correct. In the result, the appeal fails and is dismissed
with costs. Appeal dismissed.

What are those assets that can be stressed and sold in the execution of decree ? What
are those assets that cannot be stressed and sold in the execution of decree ? Describe.
There are three stages of every civil suit. It starts with the institution of a suit, adjudication of a
suit and finally the implementation of a suit. The implementation of the suit is a step in which the
results of the adjudication are put into action, hence this stage is known as execution. In this
process, the order or judgement passed by the court is enforced or given effect. It is the
enforcement of the decree and gives the benefit to the decree-holder in whose favour the
decree has been passed. Section 38 of CPC states as to who can execute the decree. A decree
may be executed either by the court which passed it, or by the Court to which it is sent for
execution. Section 37 gives further explanation of certain expressions. In a proceeding for the
arrest of Judgment Debtor, if the Decree Holder satisfies the Court that the Judgment Debtor
has sufficient means to satisfy the decree, the Court cannot refuse to order arrest, on the
ground that there is an alternative remedy of attachment available to the Decree Holder for
realization of the decretal amount.
The Code of Civil Procedure, 1908 provides various modes of execution of a decree subject to
some conditions and limitations.
Section 51 of CPC provides the following modes of execution of decrees subject to such
conditions and limitations as may be prescribed.
(a) By delivery of any property specifically decreed;
(b) By attachment and sale or by the sale without attachment of any property;
(c) By arrest and detention in prison for such period not exceeding the period;
(d) In such other manner as the nature of the relief granted may require.
Attachment of property is one of the modes of execution applied by the court of justice. An
executing court is competent to attach the property if it is situated within the jurisdiction of the
court. The place where a judgement debtor carries out his business is not relevant.
Nature, Scope and Objective
Attachment of property is one of the modes of execution of a decree in a civil suit. In a decree,
the court may require a person(defendant) to pay an amount to the decree-holder. In cases
where the defendant fails to pay the required sum, the court can, in the execution of its decree,
attach the movable and immovable property of the defendant and recover the amount which is
due by the disposal of these assets. However, there are some assets which cannot be attached
to recover the due amount.
This article goes through various modes adopted by courts in executing a decree in a suit with
special emphasis on “Attachment of property”. It also examines the various provisions relating to
attachment in the Code.
Property which can be attached
Attachment is a legal term which refers to the action of seizing property in anticipation of a
favourable ruling for a plaintiff who claims to owed money by the defendant. Decree Holder is
Dominus litis(person to whom the suit belongs) and he h.as the right to choose the mode of
execution from those available to him. Neither the Court nor the Judgement debtor can force or
persuade him to choose a particular mode of execution. This can be referred from the case V.
Dharmavenamma v. C. Subrahmanyam Mandadi.
In the process of attachment, the court at the request of the decree-holder designates specific
property owned by the debtor to be transferred to the creditor or sold for the benefit of the
creditor. Sections 60 to Section 64 and Rules 41-57 of Order 21 of CPC 1908, deals with the
matter of attachment of property.
Section 60 CPC,1908 describes the property which can and cannot be attached while
execution. Several types of property are liable for attachment and sale in execution of a decree
like lands, houses or other buildings, goods, money, banknotes, checks, bills of exchange,
hundis, government securities, bonds or other securities etc., and things on which he has a
disposing power. There is express mention of particulars which shall not be liable for attachment
or sale. The decree as mentioned in this section is only a money decree and it does not include
a mortgage decree. Therefore, it is important that the property not only belongs to the
judgement-debtor but also he has disposing power on it.
In M. Balarajan vs. M. Narasamma, it was held that the said house of the JUdgement-debtor
was liable to be sold for execution of the decree as his contention of agricultural produce was
declined.
Section 61 grants partial exemption to agricultural produce- The state Government may by
general or special order published in the Official Gazette declare any piece of agricultural land
for the purpose until next harvest season for the due cultivation of land and support of the
Judgement-debtor and his family, exempt that property from being attached or sold in execution
of the decree.
Section 62 talks about seizure of property in case of dwelling house. No person executing under
the code will enter the premises of a dwelling house after sunset and before sunrise. No door of
such dwelling house can be broken without the knowledge of the Judgement-debtor. Where a
woman resides in such house and she is not allowed to appear in public. The person executing
has to give her a notice to be at liberty to withdraw and also reasonable time to do the same.
Once she withdraws he has the power to enter the premises.
Section 63 says that where the property attached in execution of decree is going on in several
courts then the final decision of the court of higher grade prevails and where the court are at
same grades then the court where the case of attachment came first will hold a higher value.
Property which cannot be attached
Some kind of property which cannot be attached and sold in execution of a decree is expressly
mentioned in Section 60 of the Code of Civil Procedure. Particulars like wearing apparel,
cooking vessels, beds, tools of artisans, books of accounts, any right of personal service, wife
and children, stipends and gratuities allowed to pensioners of the Government etc. and many
more.

In which court and at what place can a suit be instituted ? Discuss.

INTRODUCTION
Jurisdiction is derived from the Latin words Juris which means “law” and Dicere which means “to
speak”. Jurisdiction refers to the power of the Court to take the cognizance of an offense and to
determine the cause of action. The Civil Procedure Code provides the procedural law for all civil
matters in the country. It is based on the English principle of “Ubi Jus Ibi Remedium” which
means where there is a right there is a remedy. When the right of a person has been infringed,
they can approach the court for a remedy or compensation. The CPC lays down rules about
which court can be approached for what matters. A suit needs to be filed in a court having
jurisdiction to try the case and pass an order or decree. Which court has the right jurisdiction is
a question determined by the CPC. Sections 9-21 cover all aspects relating to the fundamentals
of jurisdiction.
Jurisdiction of A Civil Court: Sec-9
Section 9-
On the face of it, S.9 seems to be pretty clear and simple. As per S.9 civil courts have
jurisdiction to deal with all matter of civil nature that it is not expressly or impliedly barred.
However, this section fails to define the word civil, so when we look at a dictionary definition it
refers to the private rights and remedies as distinguished from criminal and political. A suit of
civil nature can hence be defined as a suit in which the fundamental question for determination
in the case is related to the private rights of citizens. A suit is said to be expressly barred if any
enactment that is in force expressly takes away the judicial power of the civil court on certain
matters. The legislature can bar the jurisdiction of the civil court with respect to a particular class
of suit keeping itself within the ambit of the power conferred on it by the Constitution of India. A
suit is impliedly barred when a general principle of law bars jurisdiction.
The Supreme Court in case of Most Rev. P.M.A. Metropolitan V. Moran Mar
Marthoma explained Section 9 as follows-
1. The phraseology used in the section is both positive and negative,
2. The earlier part opens the door widely and the latter debars the entry of those which are
expressly or impliedly barred.
3. The two explanation, one from the inception and the second added in 1976 reflects the
legislative intentions.
4. That those religious matters in which rights of the property or the office is involved
irrespective of the fact whether any fee is attached to the office or not is a matter of civil nature
and the civil court is competent to try such suit.
5. Each word and expression casts an obligation on the court to exercise jurisdiction for
enforcement of rights.
6. The word ‘shall’ makes it mandatory.
7. No Court can refuse to entertain a suit if it is of the description mentioned in the section.
The jurisdiction in CPC is of 3 types-
1. Pecuniary Jurisdiction
2. Territorial Jurisdictions, and
3. Subject Matter Jurisdictions
 A matter can only be tried by a court if it operates within all three kinds of jurisdictions. When a
court with a faulty jurisdiction tries the case, it will be termed as an irregular exercise of
jurisdiction or lack of jurisdiction which may turn the decision void or voidable depending upon
the situations. Sections 15-20 explicitly talk about the types of jurisdiction and Section 21 talks
about judgment passed by a court with no jurisdiction. The territorial and pecuniary jurisdiction
in civil matters is usually set in concerned state enactments on the subject of civil courts.
Pecuniary Jurisdiction: Sec.15: Every suit shall be instituted in the Court of the lowest grade
competent to try it. This section states that a suit should be filed in the lowest civil court that is
empowered to try matters of the specific pecuniary value. Pecuniary jurisdiction of the court
divides the court on a vertical basis. The valuation to decide on jurisdiction for filing a suit is
generally done by the plaintiff, however, if the valuation of the plaintiff is prima facie incorrect,
then the court valuates and directs the party to approach the right forum. The valuation of the
suit cannot be arbitrary, and the plaintiff must not overvalue or undervalue the suit to approach a
specific court.
At present the pecuniary jurisdiction of the Delhi courts is as follows:
· Suits amounting to Rs.1 – Rs.20,00,000 lie before district courts.
· Suits over and above Rs. 20,00,000/- lie before High Courts.
It is essential to note that the monetary value to decide the pecuniary jurisdiction is different for
all High Courts. This limit is decided by respective High Court Rules. In many states High Courts
have no pecuniary jurisdiction. All civil suits go before District Courts, and only appeals lie
before the High Court.
Territorial Jurisdiction: Sec.16-20 :Territorial Jurisdiction divides jurisdiction of courts on a
horizontal basis. All courts that have power to take cognizance of a case have the same powers
and no court is considered above the other. Territorial jurisdiction in CPC is further divided into-
1. Suits related to immovable property (Section 16 to 18)
2. Suits related to Movable property (Section 19)
3. Other suits (Section 20)
Immovable property (Section 16 to 18)
Sections 16-
This Section states that when a suit is filed regarding relief or compensation for wrong caused to
an immovable property that is held by the defendant or any other person on the behalf of the
defendant where the relief can be obtained through his personal attendance then suits may be
instituted in a court within whose local jurisdiction of either where the property is located or
where the defendant resides or carries out business.
Section 17-
According to this Section, when an immovable property falls under the jurisdiction of two or
more courts, then it is up to the discretion of the plaintiff to decide which court to file the suit at.
When a property shares the jurisdiction of multiple courts, the plaintiff can choose as per their
convenience. E.g.-If a dispute relating to an immovable property spread over Delhi and Noida
arises, then the Plaintiff can file a suit in the court of either Delhi or Noida, both courts have valid
jurisdiction.
Section 18-
This section states that when the local limits of the jurisdiction of courts is uncertain, and any of
the courts is satisfied that there is a ground of uncertainty, then such court can record the
statement and proceed with hearing the case and passing a final decree. The decree passed by
such court will have the same effect as if the property was situated within the local limits of the
jurisdiction of the said court.
In case the court taking cognizance of the case does not record the statement and an objection
is raised before the Appellate or Revisional Court, the Appellate or Revisional court shall not
allow the objections unless it is satisfied that at the time of institution of the suit there was no
reasonable ground for uncertainty as regards to jurisdiction of Court and there has been a
failure of justice.

Movable Property– Section 19

When the suit filed is regarding a movable property, then the jurisdiction for filing such suit shall
be in the court under whose local limits the right was violated or where the defendant resides or
carries on business. It is the discretion of the plaintiff to decide which of the above jurisdiction to
invoke. E.g.- If the issue relating to the movable property arises in Bangalore and the defendant
is a resident of Mumbai, then the plaintiff has the option of either filing the suit in Bangalore or
Mumbai.
Other Suits- Section 20
Civil suits under the purview of CPC that aren’t related to property, both movable and
immovable, come under the ambit of this section. This includes matters such as breach of
contract or commercial transactions. When a suit is filed under this section, the jurisdiction for
filing such suit shall be in the court under whose local limits the right was violated or where the
defendant resides or carries on business. It is the discretion of the plaintiff to decide which of the
above jurisdiction to invoke
Subject-Matter Jurisdiction
Different courts are empowered to decide different types of suits. Certain courts have no
jurisdiction to entertain certain kinds of suits. For example, the Court of Civil Judge (Junior
Division) cannot pass a decree in suits for testamentary succession, divorce cases, probate
proceedings, insolvency matters, etc. This is known as subject matter jurisdiction, where only if
a court has jurisdiction over a certain class of cases can a case from such a class be
approached. Subject matter jurisdiction has been excessively gaining popularity with the recent
trend of the Tribunal System. Under the tribunal system, the administrative establishes quasi-
judicial bodies that have expertise in the given subject matter. E.g.-Company Law related cases
generally is tried by the Company Law Tribunal in the first instance and the judiciary is
approached in an appellate stage.
Objections as to Jurisdiction: S.21
This section states that a judgment passed by a court with no jurisdiction is an irregular
judgment. The objection regarding judgment is to be brought by the parties in the instance itself.
If the error in the jurisdiction is related to the subject matter and irrespective of whether it is
objected before the court in the first instance or not, the judgment can be considered null and
void, and such an issue can be raised in an appellate or revisional level as well. However, if the
error in jurisdiction arises because of a pecuniary or territorial error and is not brought before the
court in the first instance, the judgment is held to be irregular but no objection relating to
jurisdiction can be raised in an appellate or revisional stage.
Conclusion
Jurisdiction plays an important role in the justice system. Approaching the right court with an
appropriate jurisdiction is the first step to justice. A plaintiff must hence keep in mind the
importance of approaching the right forum. A defendant must always check for a fault in the
jurisdiction as it would greatly affect the case. Jurisdiction plays a major role especially at times
of appeal and revision.

What is temporary injunction ? When and under what circumstances, temporary

injunction can be granted ?
What do you mean by temporary injunction ? When and in what matters are the
temporary injunction granted ?
Injunction – meaning and object
An Injunction is an equitable remedy which is “a judicial process that compels a party to refrain
from doing or to do a particular act or thing”. If any person disobeys the Order of Injunction
passed by the Competent Court then there can be stiff monetary penalties and even
imprisonment in certain instances. The primary purpose of granting interim relief is the
preservation of property in dispute till legal rights and conflicting claims of the parties before the
court are adjudicated. However, Injunction can also be modified or dissolved if circumstances
change in future. Section 94, 95 and Order 39 of the Civil Procedure Code precisely talks about
the Injunctions.
Order XXXIX of The Code of Civil Procedure, 1908: Cases in which temporary injunction may
be granted.
1. Where in any suit it is proved by affidavit or otherwise
(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated
by any party to the suit, or wrongfully sold in execution of a decree, or
b) that the defendant threatens, or intends, to remove or dispose of his property with a
view to defraud his creditors.
c) that the defendant threatens to dispossess, the plaintiff or otherwise cause injury to the
plaintiff in relation to any property in dispute in the suit.
the Court may by order grant a temporary injunction to restrain such act, or make such other
order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal
or disposition of the property as the Court thinks fit, until the disposal of the suit or until further
orders.
2. Injunction to restrain repetition or continuance of breach.__
(1) In any suit for restraining the defendant from committing a breach of contract or other injury
of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time
after the commencement of the suit, and either before or after judgment, apply to the Court for a
temporary injunction to restrain the defendant from committing the breach of contract or injury
complained of, or any breach of contract or injury of a like kind arising out of the same contract
or relating to the same property or right.
(2) The Court may by order grant such injunction, on such terms as to the duration of the
injunction, keeping an account, giving security or otherwise, as the Court thinks fit.
What are the basic principles of temporary injunction
It is well settled that in order to obtain an order of injunction, the party who seeks for grant of
such injunction has to prove that he has made out a prima facie case to go for trial, the balance
of convenience is also in his favour and he will suffer irreparable loss and injury if injunction is
not granted. The Judge has to consider whether the Application is falling into below-mentioned
categories:
 Prima Facie Case: The term prima facie is used in modern law to signify that upon initial
examination, sufficient corroborating evidence appears to exist to support a case.
 Irreparable Injury: The second condition is that the applicant would suffer 'Irreparable
Injury' if the respondent is not injuncted. An irreparable injury is, in equity, "the type of
harm which no monetary compensation can cure or put conditions back the way they
were."
 Balance of convenience: The Applicant is required to prove in application for grant of
temporary injunction that there is the balance of convenience is in favour of the applicant
i.e. the comparative mischief, hardship or inconvenience which is likely to be caused to
the Applicant if the injunction is being refused. When the need for protection of plaintiff's
rights is compared with or weighed against the need for protection of defendant's rights
or likely infringement of defendant's rights, the balance of convenience tilting in favour of
plaintiff.
Temporary Injunction when cannot be granted
 To restrain any person from prosecuting a judicial proceeding at the institution of the
suit, in which injunction is sought, unless restraint is necessary to prevent multiplicity
of proceedings.
 to restrain any person from instituting or prosecuting any proceeding in a Court not
subordinate to that, from which injunction is sought.
 to restrain any person from applying to any legislative body,
 to restrain any person from instituting or prosecuting any proceeding in a criminal
matter,
 to prevent the breach of a contract the performance of which could not be specifically
enforced.
 to prevent on the ground of nuisance, and act of which it is not reasonably clear that it
will be a nuisance.
 to prevent a continuing breach in which the plaintiff has acquiesced,
 when equally efficacious relief can be certainly be obtained by any other usual mode
of proceeding except in case of breach of trust,
 when conduct of the plaintiff or his agents has been such as to disentitle him to the
assistance of the Court.
 when the plaintiff has no personal interest in the matter
Who may apply for temporary injunction and against whom injunction may be issued
An application for interim injunction along with affidavit may be made both by Plaintiff or
Defendant. Order 39 Rule (1) a, any party to the suit can apply for a Temporary Injunction.
 An Injunction may be issued only against a party and not against a stranger or third party.
Further, the injunction cannot be issued against the Court or Judicial Officers.

On what proceedings does Section 5 of the Limitation Act apply ? What are the sufficient
causes for the purposes of this Section ? Explain.
Section 5 of The Limitation Act, 1963: Extension of prescribed period in certain cases.—Any
appeal or any application, other than an application under any of the provisions of Order XXI of
the Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period if the
appellant or the applicant satisfies the court that he had sufficient cause for not preferring the
appeal or making the application within such period.
The term sufficient cause has nowhere been defined in the act; however, it seems that the
courts have construed it quite liberally in order to meet the ends of justice, so much so that
meritorious matters are not disregarded solely on the basis of a slight delay (Collector, Land
Acquisition, Anantnag v. Mst. Katiji). It should also be kept in mind that the law of limitation in
itself was founded on the principles on public policy in order to ensure that the parties approach
the court for vindication of their rights without causing unreasonable delay.
The term seems to have a wide and comprehensive import. Whether or not the furnished
reason would constitute a sufficient cause will depend on facts of each case. There is no
prescribed formula which can be applied for accepting or rejecting the explanation provided for
proving the delay. In a case where a party has been negligent, the approach cannot be the
same and liberal interpretation of the term will be discouraged. In normal circumstances,
acceptance of the reason furnished should be the rule and refusal an exception, more so when
no negligence can be attributed to the defaulting party (State of West Bengal v. Administrator,
Howrah Municipality).
On the other hand, while considering the matter the courts should not disregard the fact that by
not taking steps within the stipulated time, a valuable right has accrued to the other party which
should not be undermined by condoning delay in a routine like manner.
However, by taking an over scrupulous approach to the matter, the explanation furnished should
not be dismissed especially when stakes are high, causing considerable harm and irreparable
damage to the party against whom the suit terminates and defeating valuable right of such a
party to have the decisions on merits. Ideally, the courts should strike a balance between the
subsequent impact of the order it was going to pass upon the parties either way. This approach
was taken by the court in the case Ram Nath Sao v. Gobardhan Sao.
In the case State (NCT of Delhi) v. Ahmed Jaan, the court further clarified that the term
sufficient cause has to be considered with pragmatism in a justice oriented approach rather
than looking at the detection of a reasonable cause for justifying every day's delay.
In another case N. Balakrishnan v. M. Krishnamurthy, the court elaborated on the point that in
the cases of condonation of delay, the acceptability of the explanation is the sole criterion; the
duration of delay does not matter. There have been cases where a slight delay in filing the
application has not been condoned due to unacceptable reasons; whereas on the other hand,
the court has neglected years of delay as the reason provided was satisfactory. This was
reiterated by the court in State of Nagaland v. Lipok AO.
Hence, it can be concluded that the remedy provided under the Limitations Act to condone the
delay where a sufficient cause has been provided for the same should be construed liberally in
order to meet the ends of justice.

Difference between Res Judicata and Res Sub Judice

Sl. # Res Judicata Res Subjudice
1 In Res Judicata the motive is that ‘there must be an end to In the case of Res Sub Judice, there must be
litigation.ʼ Thus, there is a bar on trial that has already two suits, one of which should be previously
been adjudicated. In simpler terms, a matter that has instituted.
 previously been decided is not put to trial again. This saves
the precious time of our already overburdened and
resource-less courts.
2 The doctrine of Res Judicata is contained in section 11 of The doctrine of Res Sub Judice is contained
the Civil Procedure Code, including eight explanations that in section 10 of the Civil Procedure Code,
provide when and how it can be applied. which provides when and how it can apply.
3 On the other hand, Res Judicata prohibits the second trial Res Sub Judice prohibits proceedings of two
of the same dispute between the same parties. parallel suits between the same parties. This
means that if two competent courts try the
same suit on the same issue, the subsequent
court can put stay on the trial to prevent the
multiplicity of proceedings and time of the court.
4 In the case of Res Judicata, the previously instituted In the case of Res Sub Judice, the previously
suit must be decided by the competent court in which the instituted suit must be pending in the same
issue has been raised subsequently. court or any competent court having
jurisdiction.
5 In the case of Res Judicata, it applies to suit and In the case of Res Sub Judice, it applies to
applications. only suit, including appeal.
Sl. # Res Judicata Res Subjudice

What is the difference between :

(i) the doctrine of limitation and prescription,
(ii) the doctrine of limitation and laches,
(iii) the doctrine of limitation and acquiescence ?
(i) Difference between Limitation and Prescription - The Indian Limitation Act deals with the Law of Prescription as well the Law
of Limitation. A Law of Prescription prescribes the period at the expiry of which not only the judicial remedy is barred but a
substantive right is acquired or extinguished. A Law of Limitation limits the time after which a suit or other proceeding cannot be
maintained in a Court of Justice. It simply bars the judicial remedy but it neither affects the extrajudicial remedies nor the substantive
right itself.
Prescription is the acquisition of title by possession of property for the prescribed period provided that possession was neither
forcible nor clandestine (hidden) nor permissive. Such possession acquires its title chiefly on account of the fact that those who had
interest in the property have allowed their rights to get barred by not caring to pursue their remedies within the time allowed by law
to enforce those remedies.
# Limitation Prescription
1 Limitation is an adjective law. Prescription is a branch of substantive law.
2 Limitation bars the enforcement of a right. Prescription creates a right.
3 Limitation is negative right. Prescription is an affirmative or assertive right.
4 Limitation only extinguishes the right of the claimant to sue in Prescription creates or extinguishes a right.
a court of law.
5 According to the Limitation Act, time and period after the Whereas prescription indicates a period after the expiry of which
expiry of which one’s right to get his substantive right enforced one’s right becomes absolute.
by a court of law, comes to an end.
6 Limitation applies to all suits, appeals and application dealt Whereas, in the case of acquisition of a title under prescription, it is
with by the Act, unconditionally. absolutely necessary the claimant must have enjoyed the use of the
property peaceably, openly, without any interruption and as of right;
if the prescriptive right was enjoyed clandestinely forcefully no legal
right accrues to the claimant.
7 In the cases of limitation, there is no question of presumption. Prescription is based on a legal presumption that if the claimant had
The provisions are quite clear and direct and they leave no used and enjoyed the property for a certain number of years openly
room for any presumption of supposition. and as of right it must be presumed that the real owner had no
objection to the enjoyment of the property by the claimant.
The following are some of the main differences of the law of limitation:
1. The law of limitation is a part of `adjective law' being barring the remedy after expiry of the period of limitation, while the law of
prescription is a part of the substantive law and it effects the substantive right of a person;
2. The Limitation Act prescribes the period after the expiry of which a suit cannot be filed in the court, while a right through
prescription arises after the expiry of definite period of time.
3. The law of limitation imposes restrictions only on the judicial remedies and not on extra judicial remedies, while a right
extinguished due to prescriptions can not be enforced by any judicial or extra judicial method.
(ii) Limitation and laches : The differences between limitation and laches are as under:
1. In case of limitation, the knowledge of the ignorance of the plaintiff, with reference to his right, is deemed immaterial, while the
knowledge of the plaintiff about right if proved, defeats the claim due to laches. The term laches here means, negligence or
slackness. The doctrine of laches is based on the principle that `delay defeats equity.'
In Roop Chand v. Madan Mohan AIR 1960 Cal. 351 it was observed that the basis of doctrine of limitation is public policy while
basis of the doctrine of laches is `equity'. Laches like limitation no doubt deprive plaintiff of his remedy but it depends upon general
principles of justice and fair play while limitation depends upon express law. A positive rule of limitation cannot be depended
whether there is laches or not and except in the case of discretionary order, the defence of laches or acquiescence cannot prevail
when a statutory period of limitation is prescribed for action.
2. Limitation prescribes a period of time within which a suit must be filed in the court, whereas period time is not fixed for laches. In
case of laches, it is the duty of a court to see (a) Whether the evidences of the case have been lost or destroyed due to the delay
caused by plaintiff (b) Whether the plaintiff caused unreasonable delay and (c) Whether the defendant has been induced by the
plaintiff by causing delay or commission to alter his position or to incur an expense.
The doctrine of laches is applied in India in the following cases:
(i) Cases relating to the Specific Relief Act;
(ii) Cases of temporary injunction;
(iii) Cases of interlocutory orders;
(iv) Cases relating to marriage and divorce;
(v) Cases relating to limitation.
3. The law of limitation is based on public policy and general utility while laches is based on equity.
4. The law of limitation is based on expression while laches is based on the doctrine of impartial judicial behaviour.
5. The plea of limitation is raised by the defendant against the plaintiff while the plea of laches can be raised against both i.e. plaintiff
or defendant.
(iii) Limitation and Acquiescence : Acquiescence implies an active consent of a party. It widely differs from limitation particularly
on the following points:
1. Limitation indicates towards the provision against which a suit cannot be filed in a court after the expiry of the prescribed time.
While acquiescence refers to a position in which an objection is not raised by person against an act done by another person having
a right to do so; provided that it is not inconsistent with the right of the former.
2. The right of a person to file a suit or initiate a proceeding is extinguished after the expiry of period of time while acquiescence is
most wide in comparison to that because a consent is involved in it.
3. The acquiescence can either be direct or indirect but it is not so in case of limitation.
4. The acquiescence is based on knowledge and conduct of the concerning party while it is not so in case of limitation.
5. When acquiscence is proved a person who did so loses his right to file a suit in the court irrespective of the fact that the time for
filing a suit has since expired or not.

"Laws of Limitation are Statute of repose and legally just and morally justified" - Discuss.
The object of law of limitation is to prescribe periods after the expiry of which a suit cannot be maintained in court of law. The
principle on which law of limitation is based is incorporated in well-known maxim "interest republic let sit finis litium" i.e. it is in the
interest of the State that remedies for violated rights should be sought in courts of Law without delay. Basically the laws of limitation
are founded on public policy.
The statute of limitation is a statute of repose, peace and justice. It secures peace as it ensures security of rights and justice. Law of
Limitation primarily founded on public policy and serve the people to sit with peace of mind, after certain prescribed period. It puts
limit to long lasting litigation proceedings and thereby serve the people to enable them to prosper. Therefore, Mr. Justice Story has
observed in "Conflict of Laws" as -
"Law thus limiting suits are founded in the noblest policy. They are statutes of repose, to quiet titles, to suppress frauds and to
supply deficiency of proofs arising from the ambiguity or obscurity or the antiquity of transactions. They proceed upon the
presumption that claims are extinguished or ought to be held extinguished, whenever they are not litigated in the proper forum
(court) within the prescribed period. They take away all solid grounds of the complaint because they rest on the negligence or
neglect of the party himself. They quicken diligence by making it in some measure, equivalent to right. They discourage litigation by
bringing in one common receptacle all the accumulations of past times which are unexplained, and have now, from lapsed of time,
become inapplicable."

What is pleading ? Discuss the objects and rule of pleading.

Definition of Pleading
Pleading is the foundation of litigation. Pleading has been dealt with in Order 6 of the Civil Procedure Code. Order 6 Rule 1 of CPC
defines pleadings as plaint or written statement.
The word ‘plaint’ is undefined in the code. However, it can be said to be the statement of claim – a document that contains the
material fact by the presentation of which a suit is instituted in the court of law.

The word ‘written statement’ has also not been defined in the code. In ‘Food Corporation of India vs Yadav engineer and contractor‘,
it has been defined as a term of specific connotation ordinarily signifying a reply to the plaint filed by the plaintiff.
According to Cornell Law School, The pleading is the beginning stage of the lawsuit in which parties formally submit their claims and
defences.

Objects of Pleading
Here are four objectives of pleading:
 Pleadings ascertain the actual issues between the parties.
 Pleadings state the issues to avoid surprise to the other party.
 Pleadings narrow down the area of conflict.
 Pleadings state the facts which need to be proved at the trial.
In ‘Virendra Kashinath vs Vinayak N. Joshi‘, the Supreme Court stated, “the object of the rule is twofold: First is to afford the other
side intimidation regarding the particular facts of his case so that they may be met by the other side. Second is to enable the court to
determine what is really the issue between the parties.”

Importance of Pleading
The fate of the suit lies on the pleading as;
 Pleading determines the burden of proof.
 It aids the court in the final decision of the case.
 Pleading enables the court to decide the right of the parties in the trial.
 Pleading enables the opposite party to know the case.

Basic rules of Pleading

Basic rules of pleadings are given in Order 6 Rule 2 of the Civil Procedure Code, 1908. They are as follows:
 Pleading should state the facts.
 The fact should be material facts.
 Pleading should not state the evidence.
 The facts stated in the pleading should be in a concise form.
Let us learn more about these four points in detail.

1. Pleading should state the facts.

The first rule of pleading states that the pleading should state the facts and only facts and not the law. Question of fact must be
pleaded, i.e. the existence of any custom or usage, intention, waiver or negligence must be pleaded.

2. The fact should be material facts.

The second rule of pleading is that the facts stated should be material facts only and not the particulars. Material facts are the basic
facts.
In ‘Virendra Nath vs Satpal Singh‘, the Supreme Court stated, “the phrase ‘material’ fact may be said to be those facts upon which a
party relies for his claim or defence. In other words, ‘material facts’ are facts upon which the plaintiff’s cause of action or the
defendant’s defence defends.” Whether a fact is a material fact or not differs from case to case and depends on the circumstances
of the case.

3. Pleading should not state the evidence

The third rule of pleading is that the pleading should not state the evidence with which the material facts are to be proved. Facts are
of two types:
(i) Facta probanda: the facts which need to be proved.
(ii) Facta probantia: the fact through which material facts are proved.
Facta probanda should be pleaded in the pleadings and not the facta probantia.

4. The facts stated in the pleading should be in a concise form.

The last fundamental rule of pleading is that the pleading should be in a concise form. Unnecessary and irrelevant details should not
be added to the pleading. Instead, pleading should be precise, clear and specific.

Other rules of Pleading

Other rules of pleadings have been given under Rule 4 to 18 of Order 6 of CPC:
 Every pleading must be signed by the party or his pleader – Rule 14
 Particulars with date should be stated, wherever misrepresentation, fraud, breach of trust, wilful default or undue influence
is pleaded in the pleading – Rule 4
 The effect of the document shall be stated briefly where the contents of any document are material – Rule 9