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Explain the different kinds of the Jurisdiction of Civil Courts.

INTRODUCTION
Meaning of Jurisdiction

The word ‘Jurisdiction’ is obtained from Latin

words juris and dicto which is said as “I speak by law”. Jurisdiction is
defined as the power authorities of the court to Adjudicate the cases,
appeal suits and to render a particular Judgment in the law.
Jurisdiction of a court means the scope to deliver Justice ordered with
in reference to the subject matter, pecuniary value and local limits.

Jurisdiction defines the limits under which a court has the right to
try/not try a matter. As jurisdiction is not properly defined under code
of civil procedure so there is no proper definition for it but various courts
at different times have interpreted jurisdiction as the power of the court
to try the matter. So, jurisdiction defines the authority of the court to
hear or not to hear a matter. A court deciding a matter out of its
jurisdiction will lead to irregular exercise of jurisdiction. The matters
decided during exercise of irregular jurisdiction can be termed voidable/
void depending upon the nature and circumstances of that matter.
Civil courts in India have a pre-determined jurisdiction according to
which they are authorised to exercise their power to determine the civil
matters and pronounce judgements. If the court exercises its power
outside its defined jurisdiction, then it is said to be irregular exercise of
jurisdiction/ lack of jurisdiction. Civil courts in India can provide
penalties in the form of monetary fines or by inducing permanent/
temporary injunction.
There are many provisions available under code of civil procedure, 1908
which defines the jurisdiction of civil courts in India. Civil courts are of
great importance to the nation as they help in safeguarding the interest
of the citizens and provide them with remedy(s). Civils courts are also
responsible for safeguarding the fundamental rights, interpreting the
laws/ statutes, enforcement of rights of the parties, resolve disputes,
etc. Civil courts are concerned with non-criminal matters and have a
primary function to resolve civil disputes.

TYPES OF JURISDICTIONS
Jurisdiction has been classified into various types under which the
powers/authority of the courts to hear and decide the matter are
determined. Various types of jurisdictions are: -
● GEOGRAPHICAL/TERRITORIAL JURISDICTION
Territorial jurisdiction defines the geographical area till which the
authority of court lies and the court is competent to hear and decide the
matter. Any matter tried outside the territorial jurisdiction of the court
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can be termed void/ voidable i.e. court cannot exercise powers outside
its territorial jurisdiction. Section 16 of code of civil procedure, 1908
defines the territorial jurisdiction with respect to immovable property.
It is very important to file the matter in the court with proper jurisdiction
i.e. competent court as the efforts done to file the case in an incompetent
court will go in vain at the early stages only and then the party(s) have
to file the matter again in a competent court with proper jurisdiction to
try the matter.

● PECUNIARY JURISDICTION
Generally, pecuniary means ‘involving money’. So, pecuniary
jurisdiction defines the competency of the courts to hear and decide the
matter on its pecuniary/financial value. Each court has its own
different pecuniary jurisdiction under which it is allowed to exercise its
powers. Pecuniary jurisdiction is pre-determined and helps in reducing
the burden of the higher courts.

● SUBJECT MATTER JURISDICTION

Each court has a pre-defined subject matter under which it is
specialized to hear the matter like civil courts, criminal courts, family
courts, electricity tribunals, commercial courts, etc. each court is
determined to hear and decide the matter particularly related to that
subject matter only i.e. they cannot hear matters related to any other
subject matter. Civil courts can only try civil matters any criminal
matter filed in civil courts is not maintainable under law and will be
dismissed.

● ORIGINAL JURISDICTION
Original jurisdiction defined the powers/authority of courts to decide
the matter in the first instance i.e. fresh matters. Each court has its
own original jurisdiction to try and decide the matter. While exercising
this jurisdiction the courts can conduct hearing, record/take evidence
and determine facts and laws. It can also be said as a fundamental
power of judiciary to adjudicate matters and resolve them. The supreme
court of India can exercise original jurisdiction under article 32 and 131
of constitution of india,1950.

● APPELLATE JURISDICTION
Appellate jurisdiction defines the authority of the court to hear an
already decided matter by the sub-ordinate court(s). This jurisdiction is
exercised by the higher courts to fix the errors/correct the mistakes/
prevent injustice (if any) done by the sub-ordinate courts. Appellate
jurisdiction can only be exercised by supreme court and high courts.
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● CONCURRENT JURISDICTION
Concurrent jurisdiction arises when two or more courts simultaneously
have jurisdiction over a single particular matter i.e. all of these courts
have the jurisdiction to try and decide the matter. Parties in this
situation have the choice to file the matter in any competent court which
is favourable/nearby to them.

● EQUITABLE JURISDICTION
Equitable jurisdiction gives the authority to the court to hear and decide
such matters where the situation demands solution to a question which
is outside the purview of law. The court in these cases have to produce
an equitable decision using justice, equity and good concise. The
jurisdiction helps the courts to decide matters which are not earlier
decided and lay down new statutes.

INTERNATIONAL JURISDICTION UNDER CPC

International jurisdiction comes into play when foreign parties are
involved or the event on which the matter is based happened somewhere
outside India. Some legal provisions under code of civil procedure, 1908
which governs the international jurisdiction are: -
● SECTION 9 OF CPC
Civil courts are authorized for using the powers given under this
section, civil courts can hear any matter that falls under their
jurisdiction until that suit is barred by law. It helps in preventing
irregular exercise of jurisdiction by the courts.

● SECTION 14 OF CPC
This section provides civil courts the authority to presume that any
foreign judgement produced before them was pronounced by a
competent court and is enforceable if it fulfils all the criteria prescribed
u/s 13 of code of civil procedure, 1908.
● SECTION 20 OF CPC
Civil courts can use the powers provided under this section to presume
jurisdiction in cases where one party resides in a foreign nation but
cause of action arises in India. This enables the court to undertake such
matters and adjudicate them.

PREREQUISITE CONDITIONS
There are two conditions which needs to be fulfilled by the case to be
heard and tried by the civil court.
1. COGNIZANCE NOT BARRED
Any party having complaint against the other party has a right to sue
the other party unless its cognizance is barred under law, either
impliedly or expressly.
EXPRESSLY BARRED
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A ‘Suit Expressly Barred’ means that suit is not maintainable because

it is prohibited by law. These types of suits are prohibited for further
proceedings in the court.
IMPLIEDLY BARRED
A ‘Suit Impliedly Barred’ means that suit is not maintainable as it is
barred by the general principles of law.
In Shankar Narayan Potti vs K. Sreedevi, The Supreme Court ruled that
civil courts have primary jurisdiction in all civil matters under Section
9 of the Code of Civil Procedure,1908, unless the action is barred by
law. The court also said that the legislature can limit the jurisdiction of
civil courts by adding a clause or provision to an act.
2. NATURE
The matter should be of civil nature to be tried by the civil courts. The
word ‘CIVIL SUIT’ is not defined under law but can be generally defined
as suits that are not criminal in nature. Civil suits are generally related
to performance or establishment of civil rights. Civil suits can be of
different types such as civil defamation, breach of contract, consumer
protection, family disputes, torts, land and family disputes.
Civil suits generally involve parties/disputes between
corporation/individuals. In civil suits criminal charges are not framed
and punishments are given in the form of monetary penalties or
injunctions. Civil suits help the parties to gain justice and determine
their rights.

LANDMARK CASES
In Hariday Nath Roy v. Ramchandra, the Calcutta High Court has
explained the eloquence of the word Jurisdiction in detail. It was held
that during an investigation or inquiry in books that exhibit various
efforts to describe the term jurisdiction, which is established as:
● the power to hear and adjudicate the issues of law and facts or
● the Power by which the judges take the cognizance of facts which are
given or
● the power to listen and adjudicate any legal controversies or
● the Power to listen and take the subject matter in issue between the
parties and also to adjudicate or
● the power to affirm the judgment on the issues of facts and law laid
before the court or
● the power to go through the facts, to apply the law, to ordain the
judgment, and to execute the same which is conferred by the legislature
upon Court.
In Kiran Singh v. Chaman Paswan, the Supreme Court underscored a
fundamental principle: a decree issued by a court lacking jurisdiction
is deemed null and void.
●Its invalidity can be contested whenever and wherever it is invoked,
even during execution proceedings or in collateral matters.
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● A jurisdictional deficiency undermines the very authority of the court

to issue any decree, and such a flaw cannot be remedied even through
the parties consent.
● Conversely, when a court possesses jurisdiction to adjudicate a
dispute, parties cannot relinquish or invalidate it through consent.
● Any attempt to completely exclude the court's jurisdiction would be
unlawful and unenforceable, as it contravenes public policy (ex dolo
malo non oritur actio).
● However, if multiple courts have jurisdiction over a case, parties can
mutually agree to select a specific forum and exclude others.
● In such instances, where no inherent lack of jurisdiction exists, such
agreements are lawful, valid, and enforceable.
In Abdulla Bin Ali v. Galappa, the plaintiff initiated a lawsuit in the civil
court seeking a declaration of title, possession, and mesne profits,
treating the defendants as trespassers.
Despite the defendants' argument that the civil court lacked jurisdiction
because of their status as tenants, the Supreme Court dismissed this
contention. It emphasised that the allegations in the plaint determine
the appropriate forum, independent of the defences raised by the
defendants. The suit, characterised by the plaintiffs as against
trespassers, was deemed cognizable by the civil court based on the
plaint's assertions.
However, it's imperative to note that a plaintiff cannot manipulate the
drafting of their plaint to evade legal provisions and confer jurisdiction
upon a civil court where it doesn't inherently exist. Furthermore, in
jurisdictional matters, substance prevails over form.

CONCLUSION
Jurisdiction plays a major role in determining the competency of the
court and whether the suit will be maintainable under law or not. Before
filing the suit proper scrutinization of competency of court should be
taken into account to avoid any repercussion in the future. There are
various types of jurisdiction and prerequisite conditions required to be
fulfilled for the suit to be maintainable in the court.
Jurisdiction of civil courts are presumed u/s 9 of code of civil procedure,
1908. Civil courts have the jurisdiction to hear and try that matter
unless its expressly/ impliedly barred or not of civil in nature. Civil
courts have the authority to hear and resolve the matters falling under
its jurisdiction. Civil courts are also responsible to fill the gap that lies
in the drafted laws by interpreting the law which works as precedents
for the future.
Civil courts play a major role in enforcement and implication of legal
rights ultimately safeguarding the citizens of the country. They are also
responsible for ensuring justice and fairness in the system. Civil courts
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also help in providing social justice by entertaining various public

interest litigation (PIL).

Briefly explain the different parts of a plaint.

What is Plaint in CPC?

A plaint is a legal document that contains the claims made by the
plaintiff when they bring a case to a civil court. It’s the first step in
starting a lawsuit.
So, what does a plaint in CPC include?
Well, it has all the important details and things needed for the case, like
what the plaintiff is complaining about and why. Even though it’s not
defined in the CPC (Civil Procedure Code), you can find the rules for it
in Order VII of the CPC.
When we talk about the cause of action in a plaint, it has two parts.
First, there’s the legal theory, which is like the facts that show why the
plaintiff thinks they’ve been harmed. Second, there’s the legal remedy,
which is what the plaintiff wants the court to do about it.
A plaint is a big deal because it’s the very first step in starting a lawsuit
and it helps figure out which civil court should hear the case.

Provisions of Plaint in CPC

Order VII of the Code of Civil Procedure is all about the “plaint.” In this
order, you’ll find different rules that cover various aspects of what
should be in a plaint. Here’s a breakdown:
 Rules 1 to 8: These rules explain what specific details should be
included in the plaint.
 Rule 9: This rule tells us how the court should admit the plaint.
 Rules 10 to 10-B: These rules discuss what happens if the plaint
in CPC needs to be returned and how parties should appear.
 Main Rules 11 to 13: These rules lay out the situations in which
the court can reject the plaint.
Section 26 of the Code of Civil Procedure is important because it says
that every lawsuit has to start with the presentation of a plaint in CPC
or in a way that the law says. So, it’s clear that a plaint is essential when
you want to begin a case in a civil or commercial court.

Contents of A Plaint
A plaint in CPC is a crucial legal document that must contain specific
information; otherwise, it won’t be considered valid. These necessary
details are outlined in Rules 1 to 8 of Order VII of the CPC. Here’s a
breakdown of what should be the content of a plaint in CPC:
 The name of the civil or commercial court where the lawsuit will
be filed.
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 Information about the plaintiff, including their name, address and

description.
 Details about the defendant, including their name, residence and
description.
 If the plaintiff has any health issues or disabilities, these should
be mentioned.
 The facts that give rise to the cause of action and where this cause
of action occurred.
 Facts that help determine the court’s jurisdiction.
 Information about the relief or remedy the plaintiff is seeking from
the court.
 If the plaintiff wants to set off a portion of their claim, the amount
allowed should be stated.
 The value of the subject matter of the suit, not just for jurisdiction
but also for court fees.
 Verification by the plaintiff under oath.
These details make a plaint in CPC essential for starting a lawsuit in
civil or commercial courts and it remains significant throughout the
legal process. Additionally, Rule 2 of Order VII specifies that the plaintiff
must state the exact amount of money they seek from the defendant
and Rule 3 requires a proper description of immovable property when
it’s involved in the case.

Return of Plaint in CPC.

Section 19A of the Code of Civil Procedure (CPC) deals with the “Return
of Plaint.”
“19A. Return of plaint.—Whenever the Court finds that for want of
jurisdiction it cannot finally determine the question at issue in the suit, it
may at any stage of the proceedings return the plaint to be presented to
a Court having jurisdiction to determine the question. When the Court so
returns a plaint, it shall comply with the provisions of the second
paragraph of section 57 of the Code of Civil Procedure (14 of 1882) and
make such order with respect to costs as it may think just and the Court
shall for the purposes of the Indian Limitation Act, 1877 (15 of 1877) be
deemed to have been unable to entertain the suit by reason of defect of
jurisdiction. When a plaint so returned is afterwards presented to a High
Court, credit shall be given to the plaintiff for the amount of the court-fee
paid in the Small Cause Court in respect of the plaint in the levy of any
fees which according to the practice of the High Court are credited to the
Government.”

According to this section:

1. If a court determines that it lacks jurisdiction to finally decide the
matter in a lawsuit at any stage of the proceedings, it has the
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authority to return the plaint to be presented before a court that

has the jurisdiction to address the issue.
2. When a court returns a plaint in such a situation, it must follow
the provisions of the second paragraph of Section 57 of the Code
of Civil Procedure (Amendment) Act, 1882. This may include
making orders related to costs, as deemed just.
3. For the purposes of the Indian Limitation Act, 1877, the court
returning the plaint is considered to have been unable to entertain
the suit due to a jurisdictional defect.
4. If a returned plaint is later presented to a High Court, the plaintiff
is credited for the amount of court fees paid in the Small Cause
Court concerning the plaint, as is the practice of the High Court,
in the levy of any fees, which are typically credited to the
government.

Rejection of Plaint
A plaint in CPC can be rejected in certain situations when specific
requirements are not met. Here are some instances in which a plaint
may be rejected:
 Non-Disclosure of Cause of Action: If the cause of action is not
clearly mentioned in the plaint, making it impossible to prove the
harm suffered by the plaintiff, the court may reject the plaint. It’s
essential to present the facts clearly to seek relief. For example, in
the case of SNP Shipping Service Pvt. Ltd. v. World Tanker
Carrier Corporation, the plaint in CPC was rejected and the suit
dismissed under Order 7, Rule 1(a) of the CPC, 1908.
 Undervaluation of Relief: If the relief sought by the plaintiff is
undervalued and the court asks the plaintiff to correct the
valuation within a given time frame, but the plaintiff fails to do so,
the plaint in CPC may be rejected.
 Improperly Stamped Documents: When all the documents are
not properly stamped and the court requires the plaintiff to
provide the required stamp paper within a specified time, failure
to do so may lead to the rejection of the plaint.
 Lack of Legal Basis: If the plaint is based on a statement or claim
secured by a law or statute that does not grant the plaintiff the
right to file the suit, the court may reject it.
 Failure to Submit Duplicate Copy: If the rules stipulate the
submission of a duplicate copy of the plaint and the plaintiff fails
to do so, the court may dismiss the plaint.
 Non-Compliance with Rule 9 of Order VII: If the plaintiff does
not comply with the provisions of Rule 9 of Order VII of the CPC,
the court may reject the plaint.
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From of the Plaint in CPC

A plaint in CPC should follow a specific format, consisting of three
essential parts:
 the heading and title,
 the body of the plaint and
 the relief claimed.

Heading and Title

Name of the Court: The plaint in CPC should begin with the name of
the court where the case is being filed. It is not necessary to mention
the name of the presiding officer; specifying the court’s name is
sufficient. For example, “In the Court of the District Judge, Sirsa.”
Parties to the Suit: In every lawsuit, there are typically two parties: the
plaintiff and the defendant. However, there can be more than one
plaintiff or defendant. The plaint in CPC must provide all the necessary
particulars about these parties, including their names, residences,
father’s names, ages and any other details required for identification.
If there are multiple parties, their names should be mentioned
according to their respective roles in the case. If one of the parties is a
minor or of unsound mind, this information should also be included in
the cause title.
Title of the Suit: The title of the suit should explain the reasons for
bringing the matter to court and indicate the court’s jurisdiction.
Body of the Plaint
The body of the plaint in CPC is where the plaintiff elaborates on their
concerns. It should be organised into short paragraphs, each presenting
a single fact or point. The body of the plaint can be further divided into
two main parts:
1. Formal Part:
 Date of Cause of Action: The plaint in CPC must include the date
when the cause of action occurred. This date is crucial because it
helps determine whether the lawsuit is filed within the legally
specified time limits, known as the period of limitation.
 Jurisdiction of the Court: The plaint should clearly state the
facts that establish the court’s pecuniary (financial) and territorial
(geographical) jurisdiction over the subject matter of the lawsuit.
 Value of the Subject Matter: The value of the subject matter of
the lawsuit should be properly stated. This is essential both for
determining the court’s pecuniary jurisdiction and for calculating
court fees.
 Statement Regarding Minority: If any party involved in the case
is a minor, this should be mentioned in the plaint.
 Representative Character of the Plaintiff: If the plaintiff is
representing others, such as in a class-action lawsuit or as a legal
representative, this should be indicated in the plaint.
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 Reasons for Claiming Exemptions: If the plaintiff is initiating

the suit after the period of limitation has expired and is seeking
an exemption under the law, the reasons for this should be
explained in the plaint.

2. Substantial Portion:
 In this section, the plaint in CPC must include all the essential
facts that form the basis of the lawsuit. This means detailing the
grounds on which the plaintiff is pursuing the cause of action,
including any additional legal grounds.
 It should be demonstrated in the plaint that the defendant has a
clear interest in the subject matter of the case, justifying their
involvement and the court’s jurisdiction.
 If there are multiple defendants and their liability is not joint, the
individual liability of each defendant should be separately
specified in the plaint.
 Similarly, if there are multiple plaintiffs and their causes of action
are not joint, this should also be clearly indicated in the plaint.

Relief
The relief claimed is a crucial part of the plaint. It is where the plaintiff
specifies precisely what they are seeking from the court. This can be a
request for compensation (damages), a demand for specific performance
of a contract, an injunction to prevent certain actions, or any other form
of relief. It’s vital to state the relief clearly and accurately in the plaint
because the claims made in the plaint in CPC cannot be supplemented
or altered through oral pleadings later on.

Signature and Verification

At the end of the plaint, the plaintiff’s signature should be placed. If the
plaintiff cannot be present due to a legitimate reason, an authorised
representative’s signature can suffice.
The plaint in CPC must also be duly verified by the plaintiff. If the
plaintiff is unable to do so personally, their representative may verify it
on their behalf, after informing the court.
The verification process involves specifying which paragraphs in
the pleadings the plaintiff has personally verified based on their
knowledge of the facts and which paragraphs have been verified based
on information received and subsequently believed to be true.
The plaintiff or verifier’s signature, along with the date and place, at the
end of the plaint, is essential.
It’s worth noting that the verification process must take place before a
competent court or in front of an Oath Commissioner to ensure the
authenticity of the statements made in the plaint in CPC. This adds
credibility to the claims presented in the legal document.
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Conclusion
In conclusion, a plaint in CPC is a formal and crucial legal document
that initiates a civil lawsuit. It provides a clear and structured account
of the case, including the parties involved, the facts leading to the cause
of action, the relief sought and jurisdictional details.
The plaint plays a fundamental role in defining the scope and purpose
of the lawsuit and it ensures that the court has the necessary
information to proceed with the case. Adherence to the specific rules
and guidelines outlined in the CPC is essential when drafting a plaint
to maintain legal clarity and fairness in civil litigation.

What is an Ex-Parte decree ? What are the remedies available

against an ex-parte decree ?

Under Order 9, Rule 6(1)(a) the court may proceed ex-parte and pass
an ex-parte decree when it deems fit that the defendant has absent
himself from the court on the date of hearing stated in the summons
served to him in accordance with the provisions of the Code.

Order 9, rule 6(1)(a) states that:

Where the plaintiff appears and the defendant does not appear when
the suit is called on for hearing
. The Rule further classifies this situation into three distinct scenario
i. When summons duly served. if it is proved that the summons
was duly served, the Court may make an order that the suit shall
be heard ex parte.
ii. When summons not duly served. if it is not proved that the
summons was duly served, the Court shall direct a second
summons to be issued and served on the defendant.
iii. When summons served but not in due time. if it is proved that
the summons was served on the defendant, but not in sufficient
time to enable him to appear and answer on the day fixed in the
summons.
Decree can only be given in relation to a suit. Although CPC does not
define what suit means, in Hansraj vs Dehradun Mussoorie Tramways
Co. Ltd.[1] the Privy Council defined the term suit as a civil proceeding
instituted by the presentation of a plaint.

Consequences of Non Appearance of Parties (Order 9)

The general provisions of CPC are based on the principle that both the
parties must be given an opportunity to be heard. The proceedings must
not be held to the disadvantage of one party. Order 9 lays down rules
regarding the appearance and the consequences of nonappearance of a
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party in the hearing.

Appearance and Non-Appearance
Rule 1 - Parties to appear on day fixed in summons for defendant to
appear and answer:
On the day fixed in the summons for the defendant to appear and
answer, the parties shall be in attendance at the Court-house in person
or by their respective pleaders, and the suit shall then be heard unless
the hearing is adjourned to a future day fixed by the Court.

Dismissal of Suits
Rule 2 - Dismissal of suit where summons not served in consequence
of plaintiff.- failure to pay cost:
Where on the day so fixed it is found that the summons has not been
served upon the defendant in consequence of the failure of the plaintiff
to pay the court-fee or postal charges (if any) chargeable for such
service, or to present copies of the plaint or concise statements, as
required by rule 9 of order VII, the Court may make an order that the
suit be dismissed. Provided that no such order shall be made, if,
notwithstanding such failure the defendant attends in person (or by
agent when he is allowed to appear by agent) on the day fixed for him
to appear and answer.

Rule 3 - Where neither party appears, suit to be dismissed:

Where neither party appears when the suit is called on for hearing, the
Court may make an order that the suit be dismissed

Rule 4 - Plaintiff may bring fresh suit or Court may restore suit to file:
Where a suit is dismissed under rule 2 or rule 3, the plaintiff may
(subject to the law of limitation) bring a fresh suit, or he may apply for
an order to set the dismissal aside, and if he satisfies the Court that
there was sufficient cause for such failure as is referred to in rule 2, or
for his non-appearance, as the case may be, the Court shall make an
order setting aside the dismissal and shall appoint a day for proceeding
with the suit.

Rule 5 - Dismissal of suit where plaintiff after summons returned

unserved, fails for one month to apply for fresh summons:
(1) Where after a summons has been issued to the defendant, or to one
of several defendants, and returned unserved the plaintiff fails, for a
periods of one month from the date of the return made to the Court by
the officer ordinarily certifying to the Court returns made by the serving
officers, to apply for the issue of a fresh summons the Court shall make
an order that the suit be dismissed as against such defendant, unless
the plaintiff has within the said period satisfied the Court that-
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a. he has failed after using his best endeavors to discover the

residence of the defendant, who has not been served, or
b. such defendant is avoiding service of process, or
c. there is any other sufficient cause for extending the time, in which
case the Court may extend the time for making such application
for such period as it thinks fit.
(2) In such case the plaintiff may (subject to the law of limitation) bring
a fresh suit.
Ex parte Proceedings
Rule 6 - Procedure when only plaintiff appears
1. Where the plaintiff appears and the defendant does not appear
when the suit is called on for hearing, then-
(a) When summons duly served if it is proved that the summons
was duly served, the Court
(b) When summons not duly served if it is not proved that the
summons was duly serve, the Court shall direct a second
summons to be issued and served on the defendant;
(c) When summons served but not in due timeif it is proved that
the summons was served on the defendant, but not in sufficient
time to enable him to appear and answer on the day fixed in the
summons, the Court shall postpone the hearing of the suit to
future day to be fixed by the Court, and shall direct notice of such
day to be given to the defendant.
.
2. Where it is owing to the plaintiffs' default that the summons was
not duly served or was not served in sufficient time, the Court
shall order the plaintiff to pay the costs occasioned by the
postponement.

Rule 7- Procedure where defendant appears on day of adjourned

hearing and assigns good cause for previous non-appearance.
Where the Court has adjourned the hearing of the suit, ex parte, and
the defendant, at or before such hearing appears and assigns good
cause for his previous non-appearance, he may, upon such terms as
the Court directs as to costs or otherwise, be heard in answer to the suit
as if he had appeared on the day fixed for his appearance.

Rule 8 - Procedure where defendant only appears

Where the defendant appears and the plaintiff does not appear when
the suit is called on for hearing, the Court shall make an order that the
suit be dismissed, unless the defendant admits the claim, or part
thereof, in which case the Court shall pass a decree against the
defendant upon such admission, and where part only of the claim has
been admitted, shall dismiss the suit so far as it relates to the
remainder.
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Rule 9 - Decree against plaintiff by default bars fresh suit:

1. Where a suit is wholly or partly dismissed under rule 8, the
plaintiff shall be precluded from bringing a fresh suit in respect of
the same cause of action. But he may apply for an order to set the
dismissal aside, and if he satisfies the Court that there was
sufficient cause for his non-appearance when the suit was called
on for hearing, the Court shall make an order setting aside the
dismissal upon such terms as to costs or otherwise as it thinks
fit, and shall appoint a day for proceeding with the suit.
.
2. No order shall be made under this rule unless notice of the
application has been served on the opposite party.

Rule 10 - Procedure in case of non-attendance of one or more of several

plaintiffs.
Where there are more plaintiffs than one, and one or more of them
appear, and the others do not appear, the Court may, at the instance of
the plaintiff or plaintiff.- appearing, permit the suit to proceed in the
same way as if all the plaintiff.- had appeared, or make such order as it
thinks fit.

Rule 11 - Procedure in case of non-attendance of one or more of several

defendants.
Where there are more defendants than one, and one or more of them
appear, and the others do not appear, the suit shall proceed, and the
Court shall, at the time of pronouncing judgment, make such order as
it thinks fit with respect to the defendants who do not appear.

Rule 12 - Consequence of non-attendance, without sufficient cause

shown, of party ordered to appear in person.
Where a plaintiff or defendant, who has been ordered to appear in
person, does not appear in person, or show sufficient cause to the
satisfaction of the court for failing so to appear, he shall be subject to
all provisions of the foregoing rules applicable to plaintiffs and
defendants, respectively who do not appear.

Setting aside Decrees ex parte

Rule 13 - Setting aside decree ex parte against defendant
In any case in which a decree is passed parte against a defendant, he
may apply to the Court by which the decree was passed for an order to
set it aside; and if he satisfies the Court that the summons was not duly
served, or that he was prevented by any sufficient cause from appearing
when the suit was called on for hearing, the Court shall make an order
 Page 15 of 316

setting aside the decree as against him upon such terms as to costs,
payment into Court or otherwise as it thinks fit, and shall appoint a day
for proceeding with the suit:
Provided that where the decree is of such a nature that it cannot be set
aside as against such defendant only it may be set aside as against all
or any of the other defendants also. And that no Court shall set aside a
decree passed ex parte merely on the ground that there has been an
irregularity in the service of summons, if it is satisfied that the
defendant had notice of the date of hearing and had sufficient time to
appear and answer the plaintiff's claim.

Rule 14 - No decree to be set aside without notice to opposite party.

No decree shall be set aside on any such application as aforesaid unless
notice thereof has been served on the opposite party.

Remedies Against Ex Parte Decree

1. An Application Under Order 9, Rule 13,
Order 9 Rule 13 states that while setting aside ex-parte decree,
the defendant may apply to the Court by which the decree was
passed for an order to set it aside and if the Court is satisfied that
the summons were not duly served, or that he was prevented by
any sufficient means from appearing when the suit was called on
for hearing, the Court may make such order setting aside the
decree against him as it thinks fit, and shall appoint a day for
proceeding with the suit, provided that the decree was of such a
nature that it could not be set aside as against such defendant
but it may be set aside as against all or any of the other defendants
also.
.
2. Appeal Under Section 96
Section 96-Appeal from original decree
(2) An appeal may lie from an original decree passed ex parte
Unless expressly provided, appeal lies from any decree passed by
the court. In cases, where the value of suit does not exceed Rs.10,
000 appeal can only be filed on question of law. When a decree
has been passed against the Defendant as Ex-Parte appeal lies. In
cases headed by two or more judges, the majority decision shall
prevail. In case there is no majority, then the decree of lower court
shall be confirmed.

3. A Review Application Under Section 114 of C.P.C.

Section 114 states that-
Review- Subject as aforesaid, any person considering himself
aggrieved-
(a) by a decree or order from which an appeal is allowed by this
 Page 16 of 316

Code, but from which no appeal has been preferred.

(b) by a decree or order from which no appeal is allowed by this
Code, or
(c) by a decision on a reference from a Court of Small Causes, may
apply for a review of judgment to the Court which passed the
decree or made the order, and the Court may make such order
thereon as it thinks fit.

Section 114 basically empowers the court to review its order if the
condition precedent laid down therein are satisfied .the substantive
provision of law does not prescribe any limitation on the power of the
court except those which are expressly provided under the Section 114
of the code in terms whereof it is empowered to make such order as it
thinks fit[2]

In another case Kaptur Agro Forest Enterprises V. Union Of India[3]

were the question regarding the concession in respect of and overhead
charged was concluded in the earlier writ petition by the allotters and
the special leave petition in a special leave petiole by supreme court also
dismissed.

Grounds
Order 9, Rule 13 prescribes two grounds for setting aside an ex-
parte decree.
 That the summons was not duly served, or
 That the defendant was prevented by sufficient cause from
appearing when the case was called on for hearing.
If either of these conditions is satisfied, the court must set aside the
decree and where these conditions are not satisfied the decree cannot
be set aside.

This question has to be decided on the basis of evidence or affidavits:

 Summons not duly served
Prior to proceedings ex parte, a court must record a declaration of
due service under Order 5 rule 19 (Issue and Service of Summons,
Examination of serving officer), this is mandatory. Where there is
nothing to show due compliance with rules 13 (Service on agent
by whom defendant carries on business) and 20 (Substituted
service) of Order 5, the decree should be set aside. Where the
summons has not been duly served, the ensuing proceedings will
be a nullity.

Due service refers to service which effectively brings the claim to

the knowledge of the defendant and is effected in accordance with
the provisions of the code relating to service of summons and in
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time for the defendant to attend and at the proper address.

By virtue of the proviso, an ex parte decree will not be set aside on

the ground of irregularity in the service of summons, when the
court for reasons to be recorded, is satisfied, that notwithstanding
such irregularity, the defendant had knowledge in sufficient time
to appear on that date and answer the claim.
.
 Sufficient cause
Where sufficient cause is shown, the decree shall have to be set
aside. The term .€˜sufficient cause.€™ is not susceptible of an
exact definition and no hard and fast rule can be laid down to
cover all possible cases and each case is to be judged upon its
particular circumstances, and where non-appearance is not
intentional, a strict view should not be taken to put a party out of
court. The term sufficient cause means beyond the control of a
party and cannot include cases of extreme negligence.
.
 Upon such terms as to costs; etc.
The rule gives a wide discretion to the court in the matter of
imposing conditions upon ordering the setting aside of an ex parte
decree. A court can make an order of restoration subject to
fulfillment of conditions, but it should clearly specify the
consequences of non-fulfillment of conditions. The court can also
extend the time for fulfillment of the conditions.
.
 Effect of setting aside
Upon setting aside of an ex parte decree, the status quo ante is
restored and the trial commences de nova from the stage at which
the proceedings were taken ex parte. However, where the decree
is set aside on the ground that the claim is fraudulent, the suit
cannot be restored and tried.

 Dismissal of setting aside application

In appropriate cases restoration can be made u/s 151. An appeal
may lie against the dismissal of the application in default.
.
 Limitation
An application under Order 9 rule 13 must in accordance with the
bounds of Art. 164 of the Limitation Act 1908 be made within 30
days of the decree.
 Page 18 of 316

 Appeal
The following types of orders can be passed under rule 13:
 An order setting aside the decree which is not appealable nor can
it be attacked under S. 105.
 An order setting aside the decree on certain terms which is by
itself not appealable.
 An order rejecting an application under Order 9 rule 13 is
dismissed on merits; it cannot be attacked under S. 105 before
the court hearing an appeal against the decree.
 Pending proceedings to set aside the decree, execution can be
stayed.
 Revision
An order setting aside an ex parte decree is not a decree. A revision
against the order may lie if the conditions of S. 115 are satisfied,
as for instance, where the order is contrary to the provisions of
Order rule 13, or where the court has disposed of the application
upon a consideration of the merits of the decree, or has refused to
set aside the decree despite the fact that summons was not duly
served or has disposed of the matter on an erroneous view
regarding limitation etc. However, no revision will lie if an
alternate remedy is available.

 Res Judicata under Code of Civil Procedure, 1908

Section 11 of CPC embodies the doctrine of res judicata or the rule
of conclusiveness of a judgement, as to the points decided either
of fact, or of law, or of fact and law, in every subsequent suit
between the same parties. It enacts that once a matter is finally
decided by a competent court, no party can be permitted to reopen
it in a subsequent litigation. In the absence of such a rule there
will be no end to litigation and the parties would be put to constant
trouble, harassment and expenses.

Section 11 says thus:

No Court shall try any 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.

Ex parte decree as Res Judicata

An ex parte decree, unless it is set aside, is a valid and enforceable
decree. However, the real test for res judicata is whether the case was
decided on merits. The real test for deciding whether the judgment has
 Page 19 of 316

been given on merits or not is to see whether it was merely formally

passed as a matter of course, or by way of penalty for any conduct of
the defendant, or is based upon a consideration of the truth or falsity of
the plaintiff's claim, notwithstanding the fact that the evidence was led
by him in the absence of the defendant. Thus, a decree may not act as
res judicata merely because it was passed ex parte. It therefore acts a
res judicata.

Conclusion:
Where a defendant absents himself from court on date of hearing
mentioned in the summons duly served on him, the court is empowered
under Order 9, Rule 6(1)(a) to proceed ex parte and to pass an ex parte
decree against such defendant thereon.

Or the Order 9 rule 13 , said that when an setting aside decree ex-parte
against defendant .in which the a decree is passed ex parte against the
defendant, he may apply to the court by which the decree was passed
for an order to set it aside and if he satisfies that summons was not duly
served, or that he was prevented by any sufficient cause from appearing
when the suit was called on for hearing ,the court shall make an order
setting aside the decree against him upon such term as to cost payment
to court or otherwise as it think fit and shall appoint a day for
proceeding with the suit.
Case Law
In the case of Bhanu Kumar Jain v. Archana Kumar & Anr (2004),
the Apex Court set aside an Ex-Parte decree on the ground that the
defendant had sufficient and reasonable grounds for not being able
to attend the hearing of the suit on the day fixed in the summons.

Who are the parties to a suit ?

Discuss joinder of parties and effect of non-joinder

Institution of Suit: Order IV

Section 26 and Order IV of the Code of Civil Procedure provide the
foundation for the institution of suits. According to these provisions,
every suit must be instituted by the presentation of a plaint, typically in
duplicate, to a court of competent jurisdiction. The plaint can be filed
by the plaintiff himself, by his pleader or by an agent or recognised
person on his behalf. The institution of a suit marks the formal
commencement of legal proceedings and the plaint is the primary
document that outlines the plaintiff’s claims and the relief sought.
Order IV underscores the necessity of following prescribed procedures
for filing a plaint, thereby ensuring that the court is properly apprised
of the dispute and can exercise its jurisdiction accordingly. This
procedural requirement is essential for the orderly administration of
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justice, as it allows the court to assess the merits of the case and
proceed with adjudication.

Parties to the Suit: Order I

Order I of the CPC is devoted to the subject of parties to suits,
encompassing the joinder, misjoinder and non-joinder of parties, as well
as the joinder of causes of action. Understanding the distinction
between necessary and proper parties is important for ensuring that all
relevant parties are present in the suit and that the court can effectively
adjudicate the matter.

Joinder of Parties
The joinder of parties refers to the inclusion of multiple plaintiffs or
defendants in a single suit. Order I, Rule 1, outlines the conditions
under which multiple persons may be joined as plaintiffs in a single
suit:
 Right to Relief: The plaintiffs must have a right to relief in respect
of or arising out of, the same act, transaction or series of acts or
transactions.
 Common Question of Law or Fact: If separate suits were
brought by these persons, a common question of law or fact would
arise.
Illustration: An altercation occurs between A, on one hand and B and
C on the other. A assaults B and C simultaneously. B and C can join as
plaintiffs in one suit against A for damages, as both the above conditions
are fulfilled.
However, the court may intervene if it appears that the joinder of
plaintiffs may embarrass or delay the trial. In such cases, the court may
put the plaintiffs to their election, order separate trials or make other
orders as necessary.
Joinder of Defendants
Order I, Rule 3, similarly provides for the joinder of defendants in a suit:
 Right to Relief: The right to relief must exist against the
defendants concerning the same act, transaction or series of acts
or transactions.
 Common Question of Law or Fact: If separate suits were
brought against these defendants, a common question of law or
fact would arise.
Case Law: Govindaraju v. Alagappa (AIR 1926 Mad 911): In this case,
the court held that the word “and” in Order III indicates that both
conditions for joinder must be satisfied cumulatively. This means that
both conditions (right to relief and common question of law or fact) must
be explicitly met for the joinder of defendants.
Illustration: B, C, D and E each separately enter into agreements with
A to supply 100 tins of oil. They fail to supply the goods. A cannot join
 Page 21 of 316

B, C, D and E as defendants in one suit for damages, as these are

distinct contracts and therefore constitute separate transactions.

Necessary and Proper Parties

Before delving into the concepts of non-joinder and misjoinder, it is
important to understand the terms “necessary party” and “proper
party”:
 Necessary Party: A necessary party is one whose presence is
indispensable for the proceedings and for a final decision in the
suit. Without this party, no effective decree can be passed.
 Proper Party: A proper party is one whose presence is not
indispensable for an effective order, but whose presence is
required for a complete and final decision of the suit.

Case Law: Hardeva v. Ismail (AIR 1970 Raj 167): The court in this
case provided two tests for determining whether a party is necessary:
1. There must be a right to some relief against the party concerning
the matter involved in the proceeding.
2. It should not be possible to pass an effective decree in the absence
of such a party.

Misjoinder and Non-joinder of Parties (Order I, Rule 9)

Order I, Rule 9, addresses the consequences of misjoinder and non-
joinder of parties:
 Misjoinder: Occurs when two or more persons are joined as
plaintiffs or defendants in contravention of the rules outlined in
Order I, Rules 1 and 3, respectively. In such cases, these persons
are neither necessary nor proper parties.
 Non-joinder: Refers to a situation where a necessary party has
not been joined in the suit. If the decree cannot be effectively
enforced without the absent party, the suit may be liable to
dismissal.
Key Provisions:
 A suit shall not be defeated by reason of the misjoinder or non-
joinder of parties.
 The court may deal with the matter in controversy so far as the
rights and interests of the parties actually before it are concerned.
 The rule does not apply to the non-joinder of a necessary party,
meaning that the absence of a necessary party could lead to the
dismissal of the suit.
Case Law: B.P. Rao v. State of Andhra Pradesh (1985 Supp (1) SCC
432): The Supreme Court held that if affected persons are not joined as
parties to a petition, the petition is not necessarily liable to dismissal if
the interests of the absent parties are identical with those of the parties
before the court.
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Striking Out, Adding or Substituting Parties: Rule 10

Order I, Rule 10, provides the procedure for striking out, adding or
substituting parties in a suit. This rule ensures that the real matter in
dispute is determined by the court, even if it requires altering the parties
involved.
Conditions for Substitution or Addition of Parties
1. The suit must have been filed in the name of a wrong person as a
plaintiff due to a bona fide mistake.
2. The substitution or addition of a party must be necessary for
determining the real matter in dispute.
Illustration: If C, acting as an agent of A, mistakenly files a suit in his
own name against B, the court can substitute A as the plaintiff instead
of C.
Grounds for Striking Out or Adding Parties
1. A person ought to have been joined as a plaintiff or defendant but
has not been joined.
2. Without the presence of this person, the question involved in the
suit cannot be completely decided.
Such amendments can be allowed at any stage of the suit or even at the
appellate stage, upon terms and conditions deemed just by the court.
However, no person can be added as a plaintiff without their consent.
 Case Law: Md. Sabir Ansari v. Sada Nanda Mandal (AIR 2010
Jhar 43): In this case, the court highlighted the importance of
joining necessary parties to ensure that a fair and effective decree
could be passed. The petitioner in this case was deemed necessary
for the effective resolution of the dispute.
 Case Law: Babulal Khandelwal v. Balkishan D. Sanghvi (AIR
2009 SC 67): The Supreme Court held that in an administration
suit concerning the estate of a deceased person, it may be
necessary to implead persons involved in transactions related to
the estate for a comprehensive decision.
 Case Law: Laxmi Shankar v. Yash Ram Vasta (AIR 1993 SC
1587): The Supreme Court, relying on earlier judgments, held
that one co-owner could maintain an eviction petition in the
absence of other co-owners if those co-owners did not object.

Practical Considerations and Application

The joinder of parties and the related procedural rules are fundamental
to the efficient functioning of the civil justice system. These provisions
ensure that all relevant parties are brought before the court and that
the dispute is resolved comprehensively. However, the application of
these rules requires careful consideration of the specific facts and
circumstances of each case.
In practice, the determination of whether a party is necessary or proper
can significantly impact the outcome of a suit. Courts must balance the
 Page 23 of 316

need for efficiency with the principles of justice, ensuring that all
interested parties have the opportunity to be heard.
Moreover, the procedural mechanisms for striking out, adding or
substituting parties provide flexibility in the legal process, allowing for
the correction of bona fide mistakes and the inclusion of relevant parties
as the case progresses.

Conclusion
The provisions of the Code of Civil Procedure, 1908, particularly Orders
I and II, play an important role in shaping the procedural landscape of
civil litigation. The rules governing the joinder of parties, misjoinder and
non-joinder ensure that disputes are adjudicated efficiently and fairly.
By providing mechanisms for the inclusion or exclusion of parties, these
provisions help to streamline the litigation process and prevent
unnecessary delays or complications.
Ultimately, the joinder of parties and related procedural rules are
designed to facilitate the just resolution of disputes, ensuring that all
relevant parties are before the court and that the matter in controversy
is comprehensively addressed. Courts must apply these rules
judiciously, taking into account the specific circumstances of each case
to achieve a fair and equitable outcome.

What is the procedure for institution of suit by an indigent person

? Explain.
(Indigent Meaning - poor; needy, suffering from extreme poverty .)

Historical Background and Purpose of Order XXXIII for Suits by

Indigent Persons Under CPC
Historically, access to justice has been a concern in many legal systems,
including India’s. The concept of in forma pauperis (meaning “in the
manner of a pauper”) has been a part of common law jurisdictions for
centuries. It allows individuals without sufficient financial resources to
bring their grievances to court without paying fees upfront.
Order XXXIII of the CPC was introduced to uphold the principle of equal
access to justice by enabling economically disadvantaged persons to
approach the judiciary for redressal of their grievances. This provision
embodies the spirit of Article 14 (Right to Equality) and Article
39A (Free Legal Aid and Equal Justice) of the Constitution of India.
Order XXXIII serves a dual purpose:
1. Facilitating Access to Justice: It allows individuals without
adequate means to file a lawsuit without paying court fees.
2. Safeguarding Revenue: It ensures that if the indigent person is
successful, the state can recover the court fees from the opponent
or the subject matter of the suit.
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Who is an Indigent Person?

The term ‘indigent person’ is defined under Order XXXIII, Rule 1 of the
CPC. An indigent person is someone who:
 Does not possess sufficient means to pay the court fees required
for filing a suit.
 Does not own property worth ₹1,000, excluding essential items
such as clothing, household utensils, and other basic necessities.
Thus, indigence is determined by a person’s inability to afford the court
fees and their lack of substantial property that can be liquidated to pay
the fees.
Exclusion of Property
While assessing whether a person qualifies as indigent, certain
properties are excluded from consideration. These include:
1. Clothing and household utensils: Necessary for the
maintenance of life.
2. Immovable property: If it is an essential source of livelihood and
cannot be easily liquidated.
3. Tools of trade: Tools essential for the person’s trade or profession.
If a person’s assets exceed the prescribed threshold or if they are found
to have disposed of property fraudulently to qualify as indigent, their
application will be rejected.
Procedure for Filing Suits by Indigent Persons Under CPC
To file a suit as an indigent person, an individual must follow a
prescribed legal procedure under Order XXXIII. The key steps involved
are as follows:
1. Filing of Application (Order XXXIII, Rule 2)
The first step for an indigent person is to file an application to the court
seeking permission to file a suit without paying court fees. The
application must contain the following details:
 A description of the applicant’s financial status and lack of
sufficient means to pay court fees.
 A schedule of the applicant’s assets, including movable and
immovable property.
 The particulars of the plaint, just like a regular suit.
2. Inquiry into the Application (Order XXXIII, Rule 1A)
Once the application is filed, the court undertakes an inquiry to verify
the applicant’s claim of indigency. This inquiry is primarily conducted
by the court’s chief ministerial officer, although the court itself may also
conduct the investigation if necessary. The inquiry includes:
 Examination of the applicant’s financial status.
 Evaluation of the applicant’s property and assets.
 Inquiry into whether the suit is barred by law or if the applicant
has any ulterior motives.
If the court finds that the applicant is truly indigent, the application is
admitted, and the suit proceeds in the normal course.
 Page 25 of 316

3. Notice to the Opposing Party (Order XXXIII, Rule 6)

Before admitting the application, the court issues a notice to the
opposite party (defendant) and provides them with an opportunity to
contest the indigency claim. The defendant may argue that the
applicant is not indigent, in which case the court examines evidence
from both sides.
4. Adjudication of the Application (Order XXXIII, Rule 7)
After conducting the inquiry and hearing both parties, the court decides
whether the applicant qualifies as an indigent person. If the court grants
permission, the application is treated as a plaint, and the case proceeds
without the plaintiff being required to pay court fees.
5. Rejection of Application (Order XXXIII, Rule 5)
The court may reject the application for permission to sue as an indigent
person under the following circumstances:
 The application is not presented in the prescribed manner.
 The applicant is found not to be indigent.
 The applicant has disposed of property fraudulently to qualify as
indigent.
 The allegations in the plaint do not disclose a cause of action.
 The suit is barred by law.
 The applicant has entered into any agreement concerning the
subject matter of the suit with another person who has an interest
in the case.
If the application is rejected, the applicant is free to file the suit in the
ordinary manner by paying the requisite court fees.
Rights and Liabilities of an Indigent Person
Once an individual is allowed to file a suit as an indigent person under
CPC, certain rights and liabilities are attached to their status.
Rights of an Indigent Person
1. Exemption from Court Fees: The primary right of an indigent
person is that they are exempted from paying court fees for the
duration of the suit. This includes fees for filing the plaint, process
fees, and other litigation-related expenses.
2. Representation by a Lawyer: If an indigent person is not
represented by a lawyer, the court may assign a legal
representative to assist them in pursuing their case. This is in line
with the principle of free legal aid, as enshrined in Article 39A of
the Constitution.
3. Right to Appeal: An indigent person may file an appeal against a
judgement or order in the same manner as they filed the original
suit—without paying court fees. This is provided under Order
XLIV of the CPC.
Liabilities of an Indigent Person
1. Payment of Court Fees if They Succeed: If an indigent person
succeeds in the suit, the court calculates the amount of court fees
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that would have been payable had they not been indigent. This
amount is then recovered from the opposing party or the subject
matter of the suit. The state has the first charge on the property
involved in the litigation.
2. Withdrawal of Indigent Status: The court may revoke the status
of indigent person if it is found that the individual’s financial
situation has improved, allowing them to pay the court fees.
Additionally, if the person engages in vexatious or improper
conduct during the proceedings, the court may withdraw their
indigent status.
3. Liability for Costs if They Fail: If an indigent person loses the
suit, they may be liable to pay court fees and costs, just like any
other litigant. In such cases, the court can order the person to pay
the fees retrospectively.

Appeals by Indigent Persons

Under Order XLIV of the CPC, an indigent person may also file an
appeal without paying the requisite court fees. The procedure for filing
an appeal as an indigent person is similar to the procedure for filing a
suit. The court conducts an inquiry into the applicant’s financial status,
and if satisfied, grants permission to file the appeal without fees.
However, if the court rejects the application for appeal, the indigent
person is required to pay the court fees within a specified time. If the
fees are paid within this time, the appeal proceeds as though the fees
had been paid from the beginning.
Case Laws on Suits by Indigent Persons
Several landmark judgements have clarified the rights, liabilities, and
procedures associated with suits by indigent persons:
1. M.L. Sethi v. R.P. Kapur (1972)
In this case, the Supreme Court held that the provisions of Order I, Rule
10, relating to the addition of parties, and Order IX, dealing with the
consequences of non-appearance, apply to proceedings under Order
XXXIII. This ruling clarified that suits filed by indigent persons follow
the same procedural rules as regular suits.
2. Union Bank of India v. Khader International Construction (2001)
This case affirmed that Order XXXIII is an enabling provision that
allows indigent persons to file suits without paying court fees at the
initial stage. However, if the suit is dismissed, the state is entitled to
recover the court fees from the plaintiff. The court fees are treated as
the first charge on the subject matter of the suit.

3. Smt. Lakshmi v. Vijaya Bank (2010)

In this case, the court held that the right to sue as an indigent person
is a personal right. If the indigent person dies, the right to sue cannot
be inherited by their legal representatives. However, the court may grant
 Page 27 of 316

permission to the legal representatives to continue the suit in an

ordinary manner by paying court fees.
4. Sumathy Kutty v. Narayani
This case established that the real test for determining indigence is
whether the person can convert their assets into liquid cash without
undue hardship and delay. The decision emphasised that the court
must conduct a thorough inquiry into the applicant’s financial status
before granting permission to sue as an indigent person.

Challenges in the Implementation of Order XXXIII

While Order XXXIII provides a robust framework for indigent persons to
access justice, several challenges remain:
1. Delay in Processing Applications: The inquiry into an
applicant’s financial status can be time-consuming, leading to
delays in the commencement of the suit. This can be particularly
problematic for indigent persons who may already be facing
financial and social hardships.
2. Vexatious Litigation: Some individuals may attempt to misuse
the provisions of Order XXXIII by fraudulently claiming indigence
to avoid paying court fees. Courts must remain vigilant in
scrutinising such claims to prevent abuse of the legal system.
3. Awareness and Accessibility: Many indigent persons may not be
aware of their right to file suits under Order XXXIII. Legal aid
organisations and the judiciary must work together to raise
awareness about these provisions and ensure that they are
accessible to all sections of society.
Conclusion
Order XXXIII of the CPC is a testament to the Indian legal system’s
commitment to ensuring equal access to justice. By providing indigent
persons with the means to file suits without paying court fees, the law
upholds the constitutional principles of equality and free legal aid.
However, challenges such as delays, fraudulent claims, and lack of
awareness must be addressed to ensure that the provisions are
implemented effectively.
The right to justice should not be a privilege reserved for the
wealthy. Order XXXIII stands as a crucial tool in ensuring that
financial hardship does not deprive individuals of their ability to seek
redress for their grievances. As the legal system continues to evolve,
further reforms and awareness initiatives are needed to ensure that
access to justice is a reality for all, regardless of economic status.

Distinguish between judgement and decree.

Judgement= Judge + Statement.
A judgement is a formal pronouncement made by a judge based on the
facts, evidence and legal arguments presented during a trial. According
 Page 28 of 316

to Section 2(9) of the Code of Civil Procedure, 1908, a judgement is

defined as a statement given by the judge on the grounds of a decree or
order. It is a comprehensive document that encapsulates the court’s
reasoning, findings and decisions.

Judgements serve multiple purposes:

 Resolution of Disputes: They provide a final decision on the
matters in dispute between the parties.
 Precedential Value: Judgements set precedents for future cases,
guiding lower courts and ensuring consistency in the application
of the law.
 Transparency: They ensure transparency in the judicial process
by documenting the reasons behind the court’s decision.

Contents of a Judgement
The Code of Civil Procedure, 1908, outlines the essential components of
a judgement. According to Rule 4 of Order XX:
 Summary of Pleadings: This is a concise statement of the case,
summarising the claims and defences of the parties.
 Issues: These are the specific points of contention that the court
needs to resolve.
 Findings on Each Issue: The judgement must provide the court’s
findings on each issue based on the evidence and arguments
presented.
 Ratio Decidendi: This is the legal reasoning or rationale behind
the court’s decision on each issue.
 Relief Granted: The judgement must specify the relief or remedy
awarded to the prevailing party.

Examples and Analysis

Consider a case where two parties are involved in a property dispute.
The judgement would start by summarising the pleadings, detailing the
property claims made by each party. The issues might include questions
about the validity of the property title and the rightful owner.
The court would then analyse the evidence, such as property deeds and
witness testimonies, to make findings on each issue. The ratio decidendi
would explain the legal principles applied, such as property law statutes
and precedents. Finally, the judgement would state the relief granted,
such as awarding the property to one party and possibly ordering
compensation for the other.

Decree
A decree is the formal expression of an adjudication that conclusively
determines the rights of the parties with regard to the matters in
dispute. Section 2(2) of the Code of Civil Procedure, 1908, defines a
 Page 29 of 316

decree as the formal expression of an adjudication that, so far as

regards the court expressing it, conclusively determines the rights of the
parties with regard to all or any of the matters in controversy in the suit.
Unlike a judgement, which is a detailed document, a decree is a formal
declaration and is conclusive in nature.
Decrees are critical because:
 Finality: They provide a conclusive determination of the rights of
the parties, leading to the final disposal of the suit.
 Enforceability: Decrees are enforceable in a court of law, allowing
the prevailing party to seek enforcement of the court’s decision.

Types of Decrees
Decrees can be classified into three types:
 Preliminary Decree: This determines the rights of the parties but
does not completely dispose of the suit. For example, in a partition
suit, the court may pass a preliminary decree determining the
shares of the parties without dividing the property.
 Final Decree: This completely disposes of the suit by conclusively
determining the rights of the parties. Using the partition suit
example, the final decree would divide the property according to
the shares determined in the preliminary decree.
 Partly Preliminary and Partly Final Decree: In some cases, a
decree may be partly preliminary and partly final. For instance, in
a mortgage suit, the court might pass a decree for the sale of
mortgaged property (preliminary) and simultaneously determine
the amount due to the mortgagee (final).

Contents of a Decree
A decree must include specific details to be valid:
 Suit’s Number: Every suit is assigned a unique number, which
must be mentioned in the decree.
 Names, Description and Registered Addresses of the
Parties: The decree must include the names, proper descriptions
and registered addresses of all parties involved in the suit.
 Particulars of the Parties’ Claims or Defences: It must detail
the claims or defences asserted by the parties in the suit.
 Relief Granted: The decree should specify the relief or remedy
awarded to the aggrieved party.
 Costs Incurred: It should outline the total costs incurred in the
suit and how they are to be apportioned among the parties.
 Date of Judgement: The decree must mention the date on which
the judgement was pronounced.
 Judge’s Signature: The judge’s signature is essential for the
validity of the decree.
 Page 30 of 316

Examples and Analysis

In the earlier example of a property dispute, the decree would formally
declare the decision made in the judgement. It would list the parties
involved, detail the claims about the property and specify the relief
granted, such as transferring the property title to one party. It would
also outline the costs of the suit and how they are to be borne by the
parties. The decree would be dated and signed by the judge.

Differences Between Judgement and Decree

While judgements and decrees are interrelated, they have distinct
characteristics and roles in the judicial process and differ in the
following way:
Aspect Judgement Decree

A detailed document
based on the facts, A formal declaration based
issues, evidence and on the judgement,
Definition
legal arguments conclusively determining the
presented during the rights of the parties.
trial.

Order of Made prior to the

Always follows a judgement.
Issuance decree.

Includes the suit’s number,

Includes a summary of
parties’ details, claims or
pleadings, issues,
defences, relief granted,
Contents findings, ratio
costs incurred, date of
decidendi and the relief
judgement and the judge’s
granted.
signature.

Section 2(9) of the Code

Legal Section 2(2) of the Code of
of Civil Procedure,
Reference Civil Procedure, 1908.
1908.

Divided into three types:

Types Has no types. preliminary, final and partly
preliminary & partly final.

May result in a
preliminary decree,
May be preliminary, final or
Nature of final decree or an
partly preliminary and partly
Decision order, but the
final.
judgement itself is
always final.
 Page 31 of 316

Leads to the final After passing the decree, the

Effect on disposal of the suit suit stands disposed of since
Suit after the decree is the rights of the parties are
drawn up. finally determined.

Provides detailed Conclusively determines the

Purpose reasoning and findings rights of the parties and is
of the court. enforceable.

Sets precedents for

Provides finality and
future cases and
Significance enforceability to the court’s
ensures transparency
decision.
in the judicial process.

Detailed explanation of
the case, issues, Formal declaration including
Components evidence, legal necessary details for
reasoning and relief enforcement of the decision.
granted.

In Balraj Taneja v. Sunil Madan:

the Hon'ble Supreme Court observed that a judgement should be a self-
contained document from which it should appear as to what the facts
of the case were and what was the controversy which was tried to be
settled by the Court and in what manner. The process of reasoning by
which the Court came to the ultimate conclusion and decreed the suit
should be reflected clearly in the judgement.

In Surendra Singh v. State of U.P.:

Justice Vivian Bose defined a judgement as "the final decision of the
Court intimated to the parties and to the world at large by formal
'pronouncement' or 'delivery' in open Court."Section 33 of the Code and
Rule 1 of Order XX provides the time limit for the delivery of a
judgement and the manner in which it may be pronounced.
Conclusion
Understanding the concepts of judgement and decree is essential for
comprehending the judicial process in civil cases. A judgement
provides the detailed reasoning and findings of the court, while a
decree is the formal expression of the court’s decision that
conclusively determines the rights of the parties.
Both are integral to the judicial system, ensuring that justice is served
and that the rights of the parties are clearly defined and enforceable. As
legal practitioners and scholars, it is important to grasp these concepts
to effectively navigate and apply the law in civil litigation.
 Page 32 of 316

Explain the salient features of Limitation Act.

1. Introduction
The law of limitation finds its root in the maxims “Interest Reipublicae
Ut Sit Finis Litium” which means that in the interest of the state as a
whole there should be a limit to litigation and “vigilantibus non
dormientibus Jura subveniunt” which means the law will assist only
those who are vigilant with their rights and not those who sleep upon
it. The law of limitation specifies the statutory time frame within which
a person may initiate a legal proceeding or a legal action can be brought.
If a suit is filed after the expiry of the time prescribed it will be barred
by the Limitation. It means that a suit brought before the Court after
the expiry of the time within which a legal proceeding should’ve been
initiated will be restricted.

2. History of the Act

The law of limitation developed in stages and finally took the shape of
the Limitation Act of 1963. Prior to 1859, there was no law of limitation
applicable to the whole of India. It was only in 1859 that a law relating
to limitation (Act XIV of 1859) was enacted that was applicable to all the
Courts. The Limitation Act was subsequently repealed in the years
1871, 1877, 1908. The Limitation Act, 1908 was repealed by the Third
Law Commission and the Limitation Act of 1963 came into force. The
1908 Act referred only to foreign contracts whereas the 1963 Act talked
about contracts entered into the territory of Jammu and Kashmir or in
a foreign country.

Sections 86 and Section 87 of the Civil Procedure Code, requires the

consent of the Central Government before suing foreign rulers,
ambassadors and envoys. The Limitation Act, 1963 provides that when
the time obtained for obtaining such consent shall be excluded for
computing the period of limitation for filing such suits. The Limitation
Act, 1963 with its new law signifies that it does not make any racial or
class distinction since both Hindu and Muslim Law are now available
under the law of limitation as per the existing statute book. In the
matter of Syndicate Bank v. Prabha D. Naik, (AIR 2001 SC 1968) the
Supreme Court has observed that the law of limitation under the
Limitation Act, 1963 does not make any racial or class distinction while
making or indulging any law to any particular person.

3. Object of the Act

The Law of limitation prescribes a time period within which a right can
be enforced in a Court of Law. The time period for various suits has
been provided in the schedule of the Act. The main purpose of this Act
is to prevent litigation from being dragged for a long time and quick
disposal of cases which leads to effective litigation. As per the Jammu
 Page 33 of 316

and Kashmir Reorganisation Act, 2019, provisions of the Limitation Act

will now apply to the whole of India. The Limitation Act, 1963 contains
provisions relating to the computation of time for the period of
limitation, condonation of delay, etc. The Limitation Act contains 32
sections and 137 articles and the articles are divided into 10 parts.

3.1 Whether the Act is exhaustive?

The Limitation Act is exhaustive with respect to all matters expressly
dealt in it. It cannot be extended by analogy. Ordinarily, the Act applies
only to civil cases except in the matter expressly and specifically
provided for that purpose.

3.2. Retrospective Operation

In BK Education Services Private Limited v. Parag Gupta and
Associates, the Supreme Court clarified that since the law of limitation
is procedural in nature, it will be applied retrospectively. The Supreme
Court in Thirumalai Chemicals Ltd v. Union of India observed that
statutes of limitation are retrospective so far as they apply to all legal
proceedings brought after their operations for enforcing causes of action
accrued earlier. In Excise and Taxation v. M/S Frigoglass India Private
Ltd, the Punjab and Haryana High Court ruled that It is well- settled
that the law of limitation is a procedural law and operates
retrospectively unless it has been provided differently in the amending
statute. In other words, unless there is a contrary intention manifested
by express or necessary implication of the legislation itself, procedural
law is generally retrospective law.

3.3 Limitation Bars Remedy

Section 3 lays down the general rule that if any suit, appeal or
application is brought before the Court after the expiry of the prescribed
time then the court shall dismiss such suit, appeal or application as
time-barred. The law of limitation only bars the judicial remedy and
does not extinguish the right. 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.
However, Section 27 is an exception to this rule.
The Supreme Court in Punjab National Bank and Ors v. Surendra
Prasad Sinha held that the rules of limitation are not meant to destroy
the rights of the parties. Section 3 only bars the remedy but does not
destroy the right which the remedy relates to.
In case of Against the Judgement in As 15/1996 v. K.J Anthony, the
Court held that a defendant in a suit can put forward any defence
though such defence may not be enforceable in the court, for being
barred by limitation.
 Page 34 of 316

It was held in Bombay Dyeing and Manufacturing v. State of Bombay

that the statute of limitations only bars the remedy but does not
extinguish the debt.

Limitation Does Not Bar Defence

The law of limitation does not restrict the defendant if he raises a
legitimate plea in his defence even though the suit is time-barred. It was
held in Rullia Ram Hakim Rai v. Fateh Singh, the bar of limitation does
not stand in the way of defence. It only bars action and it is only its
recovery that is time-barred. There is no provision that prohibits or
prevents a debtor from clearing his time-barred outstandings.

The Supreme Court observed in Shrimant Shamrao Suryavanshi v.

Pralhad Bhairoba Suryavanshi, the Limitation Act takes away the
plaintiff’s remedy to enforce his rights by bringing an action in a court
of law, but it does not place any restriction on the defendant to put
forward his defence though such defence is barred by limitation and is
unenforceable in the Court.

3.4 Application to courts

Under Section 3(c), an application by a notice of motion in a High Court
can be made when the application is presented to the proper officer of
that court. If the period prescribed for any application expires on the
day on which the court is closed, the application shall be made on the
day on which the court reopens as per Section 4.

3.5 Plea of limitation: Duty of Court

The Court is under an obligation to dismiss a suit if it is filed beyond
the time prescribed by the Limitation Act. The provisions of Section 3
are mandatory and the Court will not proceed with the suit if it is barred
by time. Under Section 3 of the Act, it is clearly mentioned that every
suit instituted, appeal preferred and the application made after the
prescribed period shall be dismissed. Even though limitation has not
been set up as a defence.

It was held in Craft Centre v. Koncherry Coir Factories, it is the duty of

the plaintiff to convince the Court that his suit is within time. If it is out
of time and the plaintiff relies on any acknowledgments in order to save
the limitations then he has to plead them or prove, if denied. The Court
further held that, provision of Section 3 is absolute and mandatory and
if a suit is barred by the time the court is under a duty to dismiss the
suit even at the appellate stage though the issue of limitation may not
have been raised. It was held in ICICI Bank Ltd v. Trishla Apparels Pvt
Ltd that there is no doubt that the court is duty- bound to dismiss the
 Page 35 of 316

suit in a case if it is barred by time even though no such plea has been
taken by the opposite party.

In Mukund Ltd v. Mumbai International Airport, it was ruled that it is

explicitly clear that when a suit is barred by limitation, the Court is
precluded from proceeding on the merits of the contentions and in fact
is obliged to dismiss the suit.

3.6 Starting point of Limitation

The time from which period of limitation begins to run depends upon
the subject matter of the case and a specific starting point of such
period is provided extensively by the Schedule in the Act. It generally
starts from the date when the summons or notice is served, or the date
on which the decree or judgment is passed, or the date on which the
event that forms the basis of the suit takes place. The Supreme Court
in Trustee’s Port Bombay v. The Premier Automobile held that the
starting point of limitation is the accrual of the cause of action.

3.7 Expiry Period of Limitation When Court is closed

When a court is closed on a certain day and the period of limitation
expires on that day, then any suit, appeal or application shall be taken
up to the Court on the day on which it reopens. This means that a party
is prevented not by his own fault but because of the Court being closed
on that day. Section 4 of the Limitation Act provides that when the
period of limitation is prescribed for any suit, appeal or application and
such period expires on a day when the Court is closed, such suit, appeal
or application shall be instituted, preferred or made on the day on which
the Court reopens. The explanation to this section mentions that within
the meaning of this Section a Court shall be deemed to be closed on any
day if during any part of the normal working of the Court it remains
closed on that day.
For instance, if a Court reopens on 1st January and the time for filing
the appeal expires on 30th December (the day on which the Court
remains closed) then the appeal can be preferred on the 1st of January
when the Court reopens.

4. Condonation of Delay
Condonation of delay means that extension of time given in certain
cases provided there is sufficient cause for such delay. Section 5 talks
about the extension of the prescribed period in certain cases. It provides
that if the appellant or the applicant satisfies the court that he had
sufficient cause to not prefer the appeal or application within that
period, such appeal or application can be admitted after the prescribed
time. This Section further mentions that an application made under any
of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of
 Page 36 of 316

1908). The explanation states that in ascertaining or computing the

period prescribed when the applicant or appellant has been misled by
any order, practice or judgment of the High Court. It will be a sufficient
cause within the meaning of this section.

However, If a party does not show any cogent ground for delay then the
application, suit or appeal will be rejected by the court.
In the case of State of Kerala v. K. T. Shaduli Yussuff, the court held,
whether or not there is sufficient cause for condonation of delay is a
question of fact dependant upon the circumstances of a particular case.

4.1 Sufficient Cause

Sufficient cause means that there should be adequate reasons or
reasonable ground for the court to believe that the applicant was
prevented from being proceeding with the application in a Court of Law.

In State (NCT of Delhi) v. Ahmed Jaan, it was said that the expression
“sufficient cause” should receive a liberal construction. In Balwant
Singh (Dead) v. Jagdish Singh & Ors, the Supreme Court held that it is
obligatory upon the applicant to show sufficient cause because of which
he was prevented from continuing to prosecute the proceeding in the
suit. In this case, there was a delay of 778 days in filing the application
for bringing the legal representatives on record.

In Ornate Traders Private Limited v. Mumbai, the Bombay High Court

ruled that where there is sufficient cause shown and the application for
condonation of delay has moved bonafidely, the court would usually
condone the delay but where the delay has not been explained at all and
there is an inordinate delay in addition to negligence and carelessness,
the discretion of the court would normally be against the applicant.
The Bombay High Court in Brij Indar Singh v. Kansi Ram observed that
the true guide for the Court while exercising jurisdiction under Section
5 is whether the litigant acted with sensible and reasonable diligence in
prosecuting the appeal.

Whether an applicant has given a sufficient cause or not depends upon

the discretion of the court and the circumstances of each case. For
instance, a Court can condone the delay on medical grounds.

4.2 Case law: Collector (LA) v. Katiji (1987)

4.2.1 Facts
In this case, an appeal was preferred by the State of Jammu and
Kashmir against the decision of enhancing the compensation in the
matter of acquisition of land for a public purpose, raising important
 Page 37 of 316

questions with regard to principles of valuation. An appeal for

condonation of delay was filed but was dismissed by the High Court as
time-barred because it was four days late. The State later appealed to
the Supreme Court by special leave.

4.2.2 Held
The Supreme Court allowed the appeal and ruled that the expression
‘sufficient cause’ under Section 5 is adequately elastic to enable the
Court to do substantial justice to parties. The order of the High Court
dismissing the appeal as time-barred was set aside and the matter was
remitted back to the High Court to dispose of the appeal on merit after
affording a reasonable opportunity of hearing to both sides.
The Supreme Court also laid down certain principles to be followed by
the Court while interpreting the matter relating to condonation of delay:
 Normally a litigant does not get the benefit by lodging a late
appeal;
 Refusal to condone delay might result in a meritorious matter
being thrown out;
 Delay must be explained in a pragmatic matter;
 A litigant does not stand to benefit by resorting to delay but in
fact, he is at serious risk;
 It must be understood that the judiciary is resected not
because of its power to legalize injustice on technical grounds
but because it is capable of removing injustice.

4.3 Delay by Government

Under Section 25, where a property belonging to the Government over
which access and use of light or any way or watercourse or the use of
any water, have been peaceably and openly enjoyed as an easement and
as of a right by any person claiming title thereto, without any
interruption for thirty years, the right to such access and use of light or
air, or way or waterway, or use of their easement shall be absolute and
indefeasible, In case of a private property it is twenty years.

4.4 Exclusion of Time

Section 12 to Section 15 deals with the exclusion of time under the
Limitation Act. Section 12 talks about the time that has to be excluded
for computing time of limitation in legal proceedings. Sub-section (1)
says that the day on which the cause of action arises that day shall be
excluded while computing the period of limitation for any suit, appeal
or application, the day from which such period is to be reckoned.

The following time has to be excluded from computing the period of

limitation:
 Page 38 of 316

 The day on which the period of limitation for any suit, appeal
or application has been reckoned.
. In case of an appeal or an application for leave to
appeal/revision/review of a judgment:
i) The day on which the judgment complained of was pronounced.
ii)Necessary time taken for obtaining a copy of the decree, sentence,
order appealed from or sought to be revised or reviewed.

 In case of decree or order is appealed from or sought to be

revised or reviewed or an application for leave to appeal from a
decree:
i) Time requisite for obtaining a copy of the judgment
 In case of application to set aside an award:
i) Time requisite for obtaining a copy of the award
Explanation to this Section states that in computing the time necessary
for obtaining a copy of the decree or order the time taken by the court
to prepare the decree or order before an application for a copy of the
decree or order is made shall not be excluded.

Under Section 13, where an application for leave to sue or appeal as a

pauper (indigent) has been made and rejected, the time spent by the
applicant in prosecuting in good faith shall be excluded.

Under Section 14, if a party is proceeding in good faith in a court

without jurisdiction any suit or application the time spent by the party
should be prosecuting another civil proceeding with due diligence and
that prosecution shall be in good faith shall be excluded.

Under Section 15, the following time shall be excluded:

 The day of the issuance and withdrawal of the stay order or
injunction.
 In case where a previous consent or sanction of the
government is required – the time spent on obtaining the
consent or sanction.
 In case of proceedings for winding up of a company- the time
during which the receiver or liquidator was appointed.
 In case of a suit for possession by a purchaser at a sale in
execution of decree- the time during which proceeding to set
aside sale has been prosecuted.

 The time during which the defendant is absent from India and
under territory outside India under the administration of the
Central Government.
 Page 39 of 316

4.5 Postponement of Limitation

Postponement of limitation means extending the period of limitation.
Section 16 to 23 of the Act deals with the postponement of limitation.

In the following cases the period of limitation will not begin to run:
 Under Section 16: Firstly, where a person having the right to
sue or make an application has died before the right accrues
or right accrues only on the death of that person- the period of
limitation will be computed from the time when there is a legal
representative who is capable of instituting. Secondly, where a
person against whom the right to sue or make an application
would have accrued dies or would have accrued on his death,
limitation will start when there will be a legal representative of
the deceased.
 Under Section 17: Where the suit or application is based upon
fraud, mistake or concealment by fraud- the period of
limitation will not start unless the plaintiff or applicant has
discovered the fraud, concealment or mistake.
 Under Section 18: In case of an acknowledgment of liability in
respect of any property or right-a-fresh period of limitation will
be computed from the time acknowledgment was signed.
 Under Section 19: where payment on account of a debt or of
interest on legacy- a fresh period of limitation will be computed
when payment was made.
 Section 20: Section 20 is only a further explanation of section
18 and section 19. It says that under a disability the
expression ‘agent duly authorised’ will include the lawful
guardian, committee, manager or agent duly authorised by
such guardian, committee or manager.

 Section 21: Where a new plaintiff or defendant is added or

substituted after the institution of suit- the suit will be deemed
to be instituted when he was so made the party. However, if
the new plaintiff or defendant was added due to a mistake in
good faith and the Court is satisfied, the suit shall be deemed
to have been instituted on an earlier date.
 Under Section 22: Where there is a continuing breach of
contract or tort – a fresh period of limitation will start at the
moment when the breach or tort continues.
 Under Section 23: In case of suits for compensation for acts
not actionable without special damage- limitation period will
start from the time when the injury occurs.
 Page 40 of 316

4.6 Extinguishment of Right

General Rule that the law of limitation only bars the remedy but does
not bar the right itself. Section 27 is an exception to this rule. It talks
about adverse possession. Adverse possession means someone who is
in the possession of another’s land for an extended period of time can
claim a legal title over it. In other words, the title of the property will
vest with the person who resides in or is in possession of the land or
property for a long period. If the rightful owner sleeps over his right,
then the right of the owner will be extinguished and the possessor of the
property will confer a good title over it. Section 27 is not limited to
physical possession but also includes de jure possession. As per the
wordings of this Section, it applies and is limited only to suits for
possession of the property.

4.7 Void Order: Limitation

An order that exceeds the jurisdiction of the court is void or voidable
and can be taken up in any proceeding in any court where the validity
of the order comes into question.

In Sukhdev Raj v. State of Punjab, the court held that even for void
orders if the suit is filed then the period of limitation prescribed by the
schedule appended to the Limitation Act is applicable.

The Court in Devi Swarup v. Smt Veena Nirwani ruled that it is a well-
settled proposition that even void orders have to be challenged so that
the same can be declared as void. Even a void order continues to have
effect till the same is declared non-est.
In State of Punjab and Ors v. Gurdev Singh, where the question arose
whether for avoiding an ultra vires order of dismissal, an employee is
required to approach a court within the prescribed time by the law of
limitation. The argument was based upon the proposition that to
challenge a void order, there is no limitation period prescribed and the
aggrieved person can approach the Court at any time. The Apex Court
held that to say that a suit is not governed by the law of limitation runs
afoul to the Limitation Act. The statute of limitations was intended to
provide a time limit for all suits conceivable.

4.8 Case Law: Exception: Union Carbide Corporation. v. Union of

India (1991)
 This case involved Union Carbide (India) Ltd (UCIL) which was
a subsidiary of the Union Carbide Corporation (UCC), New
York. One of the world’s largest disaster occurred on the fateful
night of 2nd and 3rd December 1984. Methyl Isocyanide Gas
(MIC) considered the most toxic chemical in industrial use
 Page 41 of 316

leaked from the tanks used for its storage in the Union Carbide
Company at Bhopal causing the death of thousands of people.
 An Act was passed by the Central Government on 23 March
1985 named the Bhopal Gas Leak Disaster (Processing of
Claims) Act, 1985 to authorise the Central Government to
ensure that the claims arising out of or in connection to Bhopal
Gas Tragedy are dealt with effectively, swiftly and to the best
advantage of the claimant and for matters related to it.
 The Union of India in the exercise of its power conferred by the
Act instituted an action on behalf of the victims for the award
of compensation before the US District Court, Southern
District of New York.
 Justice Keenan of the Federal District Court dismissed the
case as forum non conveniens with the condition that Union
Carbide shall consent to the jurisdiction of the Indian court
and shall waive the defence based upon the statute of
limitations.
 The Bhopal District Court made an order for payment of
compensation of rupees 350 crores as interim compensation.
This award was challenged in the High Court and the
compensation amount reduced to rupees 250 crores. Later,
both the UCC and the Union of India appealed by special leave
against the order of the High Court. The Supreme Court
recorded settlement of claims in the suit for U.S. Dollar 470
million and for the termination of the civil and criminal
proceeding. Soon petitions were filed in the Supreme Court
challenging the constitutional validity of the Act. The
judgment, in this case, was pronounced on 22 December 1989
upholding the validity of the Act.
 The Bhopal Act under Section 8 provides that if a claim is
registered under the provisions of this Act then the provisions
of the Limitation Act shall be excluded. Section 8 states that in
computing, under the Limitation Act,1963 or any other law for
the time being in force, the period of limitation for the purpose
of instituting a suit or other proceeding for the enforcement of
the claim, any period after the date on which such claim is
registered under, and in accordance with, the provisions of the
Scheme shall be excluded.
 Further, by virtue of Section 11, the Bhopal Act has an
overriding effect over any other law inconsistent with this Act.

Section 11 states that the provisions of this Act and of any Scheme
framed thereunder shall have effect notwithstanding anything
inconsistent therewith contained in any enactment other than this Act
 Page 42 of 316

or any instrument having effect by virtue of any enactment other than

this Act.
Hence, the Union Carbide case serves as an exception to the Limitation
Act for it excludes the Limitation Act, 1963 from the purview of the
Bhopal Act, 1985.

5. Conclusion
The law of limitation prescribes the time within which a person can
enforce his legal right. This Act keeps a check on the cases so that they
are not dragged for over a long time. This Act also recognizes the fact
that there are situations when persons instituting a suit or preferring
an appeal for a genuine cause are unable to institute a suit within the
time prescribed in the Act and the same criteria cannot be applied to
every situation.
The Limitation Act contains 32 Sections and 137 Articles. The articles
have been divided into 10 parts. The first part is relating to accounts,
the second part is relating to contracts, the third part is relating to
declaration, the fourth part is relating to decrees and instrument, the
fifth part is relating to immovable property, the sixth part is relating to
movable property, the seventh part is relating to torts, the eighth part
is relating to trusts and trust property, the ninth part is relating to
miscellaneous matters and the last part is relating to suits for which
there is no prescribed period.

There is no uniform pattern of limitation for the suits under which the
classifications has been attempted. The limitation period is reduced
from a period of 60 years to 30 years in the case of suit by the mortgagor
for the redemption or recovery of possession of the immovable property
mortgaged, or in case of a mortgages for the foreclosure or suits by or
on the behalf of Central Government or any State Government including
the State of Jammu and Kashmir. Whereas a longer period of 12 years
has been prescribed for different kinds of suits relating to immovable
property, trusts and endowments, a period of 3 years has been
prescribed for the suits relating to accounts, contracts and declarations,
suits relating to decrees and instruments and as well as suits relating
to movable property. A period varying from 1 to 3 years has been
prescribed for suits relating to torts and miscellaneous matters and for
suits for which no period of limitation has been provided elsewhere in
the Schedule to the Act. It is to be taken as the minimum period of seven
days of the Act for the appeal against the death sentence passed by the
High Court or the Court of Session in the exercise of the original
jurisdiction which has been raised to 30 days from the date of sentence
given.
 Page 43 of 316

One of the main salient feature of the Limitation Act, 1963 is that it has
to avoid the illustration on the suggestion given by the Third Report of
the Law Commission on the Limitation Act of 1908 as the illustration
which are given are most of the time unnecessary and are often
misleading. The Limitation Act, 1963 has a very wide range considerably
to include almost all the Court proceedings. The definition of
‘application’ has been extended to include any petition, original or
otherwise.

The change in the language of Section 2 and Section 5 of the Limitation

act, 1963 includes all the petition and also application under special
laws. The new Act has been enlarged with the definition of ‘application’,
‘plaintiff’ and ‘defendant’ as to not only include a person from whom the
application is received, Plaintiff or defendant as the case may be derives
his title but also a person whose estate is represented by an executor,
administrator or other representatives.

Res Sub Judice: Stay of Suit

Introduction
 Section 10 of the Code of Civil Procedure, 1908 (CPC) deals with
the concept of Res sub judice.
 Res Sub judice is a Latin maxim which means under judgement.
 It implies that where the same subject matter is pending in a
Court of law for adjudication between the same parties, the other
court is barred to entertain it.
Section 10 of CPC
 This section states that no Court shall proceed with the trial of
any suit in which the matter in issue is also directly and
substantially in issue in a previously instituted suit between the
same parties, or between parties under whom they or any of them
claim litigating under the same title where such suit is pending in
the same or any other Court in India have jurisdiction to grant the
relief claimed, or in any Court beyond the limits of India
established or continued by the Central Government and having
like jurisdiction, or before the Supreme Court.
o Explanation - The pendency of a suit in a foreign Court does
not preclude the Courts in India from trying a suit
founded on the same cause of action.
 This Section applies only to suits and not to applications and
complaints. The term suit in this section includes appeal.
 The words ‘matter in issue’ means the entire matter in
controversy in the suit and not merely one of the several issues.
Object of Section 10 of CPC
 Page 44 of 316

 The object of Section 10 of CPC is to prevent the courts of

concurrent jurisdiction from simultaneously entertaining and
adjudicating upon two parallel litigations in respect of the
same cause of action, the same subject matter and the same relief.
 It also aims to avoid frivolous litigation and thus save the
judicial system from the wastage of time and money of the State
and of the litigant.
Conditions for Section 10 of CPC
For the application of Section 10 of CPC, the following conditions must
be satisfied:
 There must be two suits, one previously instituted and the other
subsequently instituted.
 The matter in issue in the subsequent suit must be directly and
substantially in issue in the previous suit.
 Both the suits must be between the same parties or their
representatives.
 Such parties must be litigating under the same title in both the
suits.
 The previously instituted suits must be pending in the same
court in which the subsequent suit is brought or in any other
court in India or beyond the limits of India having the like
jurisdiction.
 The Court in which the previous suit is instituted must have
jurisdiction to grant the relief claimed in the subsequent suit.

Section 10 of CPC Only Bars the Trial

 This Section does not bar the institution of a suit, but only bars
the trial.
 The subsequent suit therefore cannot be dismissed by the court
but is required to be stayed. In certain cases, it is necessary for
the plaintiff to file the second suit.

Inherent Power to Stay

 The provisions contained in Section 10 are mandatory and no
discretion is left with the court.
 The order to stay proceedings in the subsequent suit can be made
at any stage.
 When there is a case for the application of Section 10 of CPC,
recourse to the inherent powers under Section 151 of CPC is not
justified.

Effect of Contravention
 A decree passed in contravention of Section 10 of CPC is not a
nullity and therefore cannot be disregarded in execution
proceedings.
 Page 45 of 316


 This Section lays down a rule of procedure, pure and simple,
which can be waived by a party.
 Mere filing of an application under Section 10 does not in any
manner put an embargo on the power of the court to examine the
merits of the matter.

Case Laws
 In the case of Indian Bank v. Maharashtra State Co-operative
Marketing Fed. Ltd. (1998), the Supreme Court held that the
rule laid down in Section10 of CPC applies to trial of a suit and
not the institution thereof.
 In the case of Ragho Prasad Gupta v. Shri Krishna Poddar
(1969), the Supreme Court held that the Doctrine of Res Sub
Judice will not apply when the matter in issue in a subsequent
suit is completely different from the suit that was instituted
initially.
 Page 46 of 316

Reference, Review, Revision:

Civil procedure code neither creates nor take away any right. It is
intended to regulate the procedure followed by the civil court. The
procedure must not be complex and the litigant must get a fair trial in
accordance with the accepted principles of natural justice. Preamble of
the code says that it was enacted to consolidate and amend the laws
relating to the procedure to be followed in the civil court having civil
jurisdiction in India.

The main aim of CPC is to facilitate justice and seek an end to the
litigation rather than provide any form of punishment and penalties. So
some inherent powers are also given to the court to meet such
circumstances according to the principles of natural justice, equity and
good conscience. In India we have three tier of judiciary.

The district, High court and the Hon'ble supreme court of India. Every
day so many cases are filed and each case having different
circumstances. When hearing is going on different questions rises
before the court and the court has to decide all the questions according
to law. Some times such questions requires the opinion of High Court,
such doubtful question can be cleared from the superior courts.
Meaning of reference
Reference is mentioned under sec113 of CPC. Where the subordinate
court refers the case involving the question of law to the Highcourt for
the opinion on that matter, reference is made to the Highcourt when it
has reasonable doubt during any suit, appeal, execution proceeding
etc.Reference means referring a case to Highcourt on a question of law.

Sec113 of civil procedure code

Sec113 empowers a subordinate court to state a case and refer the same
to the Highcourt for its opinion. Such opinion can be seeked when the
subordinate court has a doubt on a question of law. so a reference can
be made on a question of law only when the judge trying the case has a
reasonable 3 doubt about it.

No party to the suit has the right to apply for reference. It is only the
subordinate court as the power of reference suo moto. Where there is
doubt regarding the validity of any legal provision, for matters other
than the validity of legal provision, 4 the court is not found to refer to
the High Court. A Tribunal or persona designate cannot be said to be a
court and no 5 reference can be made by them.
 Page 47 of 316

Object of Reference
The underlying object for this provision is to enable subordinate court
to obtain in non appealable cases the opinion of High court in the
absence of a question of law and there by avoid the commission of an
error which could not be 6 remedied later on. Such provision also
ensures that the validity of a legislative provision (Act, Ordinance or
regulation) should be interpreted and decided by the highest court in
the state and there wouldn't remain any chance of misrepresentation.
Reference should be made before passing of the judgment in the court.
Conditions for Reference:
Order 46 Rule 1 requires the following condition for a subordinate
court to make a reference:
1. Suit or appeal must be pending in which the decree is not subject
to appeal or a pending proceeding in execution of such decree.
2. There must arise a question of law in such suit, appeal or
proceeding.
3. The court trying the suit or appeal or executing the decree must
have a reasonable doubt on such question.
The subordinate court having a doubt on question of law may be
divided into two classes:
1. The question related to the validity of any Act, Ordinance or
regulation and any other questions.

Under the second condition reference is optional, but in the first

condition it is obligatory, if the following conditions are fulfilled:
1. It is necessary to decide such question in order to dispose of the
case.
2. The subordinate court is of the view that impugned Act, ordinance
or regulation is ultra- virus and.
3. There is no determination either by the supreme court or by the
High Court to which such court is subordinate that such Act,
Ordinance or Regulation is ultra virus.It is also essential that only
a court can make a reference on 9 application of parties or sumoto,
on its own discretion having fulfilled the above conditions.

The apparent requirement of court to make sure such question

must have been arisen between parties to the suit and hence port
leaves no scope for reference on a hypothetical question which is
based on pillars of may or might on a point likely to arise to in
 Page 48 of 316

future.

So it is clear that a reference can be made in a suit, appeal or

execution proceeding pending before the court only when there is
a doubt of law.

Power and Duty of The High Court

The High Court has consultative jurisdiction in this regard. In deciding
and dealing with it High court is not found to decide only the question
of law in doubt,it can consider new aspects of law. So it is fully
discretion of the Highcourt as mentioned Order 46 of the civil procedure
code.It as discretion to refuse to answer the question are even power to
quash it.
Review
It is the process of judicial reexamination of a case by the same court
and by the same judge who has passed the judgment or order. Sec 114
of CPC gives a substantive right of review in certain circumstances and
the procedure to be followed for review is laid down in Order 47 of the
code.

The general rule is that once a judgment is signed and pronounced by

the court, that court ceases to have control over the matter. The court
passing the judgment or order cannot later alter its pronouncement.
But the power to review is an exception to this general rule. An aggrieved
party can file an application for review in the same court where the
decree has been passed.

In the Common parlance the word review means to re consider, to look

again or to reexamine. This section enables the court to review its own
judgment in case of any error or mistake made with regard to the
decision rendered, to rectify the same. Section 114 is substantive, the
procedure for which is provided in Order 47. Review is not to be taken
lightly. It is a very serious step. The power of review has to be taken with
great care and caution.

Object of Review
The procedure of review has been embedded in the legal system to
correct and prevent miscarriage. The review application is not an appeal
or revision made to the superior court, but it is a request to recall and
reconsider the decision made before the same court. If the judge who
decided is present in the court then he alone has jurisdiction to review
the matter decided by him. He is the best to reconsider the case as he
may be able to remember what was argued before him and what was
 Page 49 of 316

not mentioned in the case there fore he alone should hear the review
petition.
Grounds of Review
Rule1 Order 47 lays down the grounds on which an application for
review of a judgment is maintainable:
1. On the discovery of new important matter or evidence. Court can
review it's judgment. when some new and important matter or
evidence is discovered by the applicant which could not be
produced or was not available at the time of passing the decree.
2. When the mistake or error are apparent on the face of the record
then the court may review it's judgment or decree. Error may be a
fact or law. In Thungabhadra industries limited V Government of
AP , Supreme court observed that "a review is by no means an
appeal in disguise where by an erroneous decision is reheard and
correct, but lies only for patent error.
3. Other sufficient reason: Any other sufficient reason must mean a"
reason sufficient on grounds specified in the rule" for example
where the statement in the judgment is not correct or where the
court had failed to consider a material issue, fact or evidence etc.
So it could be of any reason which the court feels sufficient to
review it's judgment in order to avoid a miscarriage of justice.

The power of Review is not an inherent Right: It is well settled matter

that the power to review is not an inherent power. It is conferred by law
either expressly or by necessary implication. It is the duty of the court
to correct grave and palpable errors committed by it. So it is empowered
to review and to undo in justice.
Limitation period of Review
 The limitation period for filing an application for review is thirty
days
Revision: Sec115 of the CPC 1908 empowers the Highcourt with
Revisional jurisdiction. The dictionary meaning of the world revision is
to revise, to look again, to go through a matter 1 carefully and correctly
and correct where necessary.
Object of Revision: The object of Sec 115 is to prevent subordinate
court from acting arbitrarily, capriciously and illegally or irregularly in
the exercise of their jurisdiction. The power of High court to see that the
proceedings of the subordinate court are conducted in accordance with
law and within the bounds of 19 the jurisdiction and in furtherence of
justice.
 Page 50 of 316

It enables the High court to correct the error of jurisdiction commited

by the subordinate court. This provision of revision provides an
opportunity to the aggrieved party to get their non appealable orders
rectified. Revisional power is excercised when no appeal lies to the High
court. High court can 20 exercised the revisional power even suo moto.

Limitation Period
 Limitation period for revision application is 90 days. The ground
for revision will be mainly on jurisdiction.
Highlights:
1. Reference is made by a subordinate court to the High court where
there is doubt regarding the question of law.
2. Review is made by the same court which has passed the decree to
rectify the mistake or error on the record.
3. Revision application is made only to High court when the decree
passed by subordinate court is not in accordance 21 with
appropriate jurisdiction.
Conclusion
Application for review revision and reference do not deal with facts or
evidence of the case they are only based on technical grounds. To err is
human. Every human being commits a mistake. Judges are also human
beings so there are chances for them to commit mistake. In such cases
these provisions well help the judges in order to correct the mistakes.
So Sec 113,114,115 of CPC embedded in the legal system in order to
maintain the fairness and accuracy of the justice system.

The effects of fraud, mistake, and Acknowledgment under the

Limitation Act, 1963
Effect of fraud or mistake:
The period of limitation starts only after fraud or mistake is discovered
by the affected party.
[section 17(1)]. In Vidarbha Veneer Industries Ltd. v. UOI – 1992 (58)
ELT 435 (Bom HC), it was held that limitation starts from the date of
knowledge of a mistake of law. It may be even 100 years from the date
of payment.
The cardinal principle enshrined in section 17 of the Limitation Act is
that fraud nullifies everything. Thus, an appeal against the party can
be admitted beyond limitation, if the party has committed fraud (in
submitting non-genuine documents at adjudication in this case) –
 Page 51 of 316

CC v. Candid Enterprises 2001(130) ELT 404 (SC 3 member bench).

Section 17 – Effect of fraud or mistake – (1) Where, in the case of any
suit or application for which a period of limitation is prescribed by this
Act-
(a) The suit or application is based upon the fraud of the defendant or
respondent or his agent;
or
(b) The knowledge of the right or title on which a suit or application is
founded is concealed by the fraud of any such person as aforesaid; or
(c) The suit or application is for relief from the consequences of a
mistake; or
(d) Where any document necessary to establish the right of the plaintiff
or applicant has been fraudulently concealed from him;
The period of limitation shall not begin to run until the plaintiff or
applicant has discovered the fraud or the mistake or could, with
reasonable diligence, have discovered it, or in the case of a concealed
document, until the plaintiff or the applicant first had the means of
producing the concealed document or compelling its production.
Provided that nothing in this section shall enable any suit to be
instituted or application to be made to recover or enforce any charge
against or set aside any transaction affecting, any property which-
(i) In the case of fraud, has been purchased for valuable consideration
by a person who was not a party to the fraud and did not at the time of
the purchase know, or have reason to believe, that any fraud had been
committed, or
(ii) In the case of mistake, has been purchased for valuable
consideration subsequently to the transaction in which the mistake was
made, by a person who did not know, or have reason to believe, that the
mistake had been made, or
(iii) In the case of a concealed document, has been purchased for
valuable consideration by a person who was not a party to the
concealment and, did not at the time of purchase know, or have reason
to believe, that the document had been concealed.
(2) Where a judgment-debtor has, by fraud or force, prevented the
execution of a decree or order within the period of limitation, the court
may, on the application of the judgment-creditor made after the expiry
of the said period extend the period for execution of the decree or order.
Provided that such application is made within one year from the date of
the discovery of the fraud or the cessation of force, as the case may be.
Effect of acknowledgment in writing – If acknowledgment of any
property is right or liability is obtained in writing duly signed by the
party against whom such property, right or liability is claimed, before
the expiration of period of limitation, a fresh period of limitation is
computed from date of acknowledgment. [section 18(1)],
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Acknowledgment can be signed either personally or by an agent duty

authorized in this behalf. [section 18(2)]. [That is why Banks and
Financial Institutions insist on confirmation of balance every year].
Section 18 – Effect of acknowledgment in writing –
(1) Where before the expiration of the prescribed period for a suit or
application in respect or any property or right, an acknowledgment of
liability in respect of such property or right has been made in writing
signed by the party against whom such property or right is claimed, or
by any person through whom he derived his title or liability, a fresh
period of limitation shall be computed from the time when the
acknowledgment was so signed.
(2) Where the writing containing the acknowledgment is undated, oral
evidence may be given of the time when it was signed; but subject to the
provisions of the Indian Evidence Act,1872 ( 1 of 1872), the oral
evidence of its contents shall not be received.
Explanation – For the purposes of this section, –
(a) An acknowledgment may be sufficient though it omits to specify the
exact nature of the property or right, or avers that the time for payment,
delivery, performance, or enjoyment has not yet come or is accompanied
by a refusal to pay, deliver, perform or permit to enjoy, or is coupled
with a claim to set-off, or is addressed to a person other than a person
entitled to the property or night;
(b) The word “signed” means signed either personally or by an agent
duly authorized on this behalf; and
(c) An application for the execution of a decree or order shall not be
deemed to be an application in respect of any property or right.
As held in Subbarsadya vs Narasimha, AIR 1936 It is not necessary that
an acknowledgment within Section 18 must contain a promised to pay
or should amount to a promise to pay.
 Page 53 of 316

Ravi has instituted a suit against his wife Usha in the civil Court
at Dharwad. Usha is residing at Kalaburgi with her parents. She
has no income of her own and therefore, she is finding it difficult
to travel to Dharwad frequently to attend the proceedings. Advise
her.

Ramesh has instituted a suit against Santosh, seeking possession

of a house on the ground that he has purchased the same from
Santosh. Now he wants to amend the plaint to the effect that he
is entitled to the possession of the house as a tenant. Can he
succeed ?

Right to sue arises to 'X'during his minority. 'X' dies one day after
attaining majority. He is succeeded by his son 'Y' who is minor.
Determine the effect on the period of limitation.

Explain Doctrine.of 'Resjudicata'. State the conditions for

applicability of the doctrine of 'Resjudicata'.
Introduction
Section 11 of the Code of Civil Procedure, 1908 represents the doctrine
of res-judicata or the rule of conclusiveness of judgement, as to the
points determined earlier of fact, or of law, or of law and fact and in
every consecutive suit between the identical parties. It legislates that
once the matter is finally settled by a competent Court, no party can be
allowed to reopen it in a subsequent litigation. In absence of such a rule
there will be no end to litigation and the parties would be put to non
stop dilemma, harassment and expenses.
Satyadhyan Ghosal v. Deoraji Debi
The actual meaning of “res” is “everything that may form an object of
rights and includes an object subject-matter or status” and “judicata”
means adjudged, adjudicated or decided. Thus, actually means: “a
matter adjudged; a thing judicially acted upon or decided by judgment.
Escorts Farms v. Commissioner
The doctrine of Res judicata is a very old doctrine. Under Roman law, it
was recognised as ex-captio res judicata which indicates previous or
former judgment. The principle of Res judicata is accepted in the larger
public interest which involves that all litigations must, sooner or later,
 Page 54 of 316

come to an end. The principle is also established on equity, justice and

good conscience which demands that a party which has once succeeded
on an issue should not be permitted to be harassed by a multiplicity of
proceedings involving determination of the identical issue.
In Satyadham Ghosal v. Deorajin Debi[3], the Supreme Court made
clear the principle of Res judicata in the following words:- “The principle
of res judicata is established on the need of giving finality to judicial
decisions, what it says is that once a res is judicata, it shall not be
arbitrated again. When a matter, whether on a question of fact or a
question of law, has been settled between two parties in one suit or
proceeding and the decision is final, either because no appeal was taken
to a higher Court or because the appeal was dismissed, or because no
appeal lies, neither party will be permitted to participate in a future suit
or proceeding between the same parties.
In Lal Chand v. Radha Krishna, Chandrachud, J. interpreted the
principle of Res judicata in the following words:
“Section 11 is long settled, is not comprehensive and the principle which
instigates that section can be extended to cases which do not fall strictly
within the letter of the law….. The principle of res judicata is accepted
in larger public interest which requires that all litigations must, sooner
or later, come to an end. The principle is also based in equity, justice
and good conscience which requires that a party which has once
succeeded on an issue should not be allowed to be intimidated by a
multiplicity of proceedings involving determination of the same issue”.
Thus, it can be said that doctrine of res judicata is a rule of universal
law pervading every well-regulated system of jurisprudence.
The doctrine of res judicata is compiled in Section 11 of the Civil
Procedure Code.
Res Judicata (Section 11)
No Court shall try any suit or issue in which the matter directly and
extensively in issue has been directly and extensively in issue in a
former suit among the same parties, or among parties under whom they
or any of them claim, litigating under the same title, in a Court
competent to try such suit later or the suit in which such issue has
been raised later, and has been heard and finally decided by such a
Court.
Explanation I: The expression ‘former suit shall mean a suit which has
been decided earlier to the suit in question whether or not it was
appointed prior thereto.
 Page 55 of 316

Explanation II: For the purposes of this section, the appropriateness of

the Court shall be determined irrespective of any provisions as to a right
of appeal from the decision of such Court.
Explanation III: The matter above mentioned to must in the former suit
have been asserted by one party and either renounced or admitted,
precisely or impliedly, by the other.
Explanation IV: Any matter which might or must have been made
ground of defence or attack in such a former suit, shall be considered
to have been a matter directly and substantially in issue in such suit.
Explanation V: Any relaxation claimed in the plaint, which is not
specifically granted by the decree, shall, for the purposes of this section
be deemed to have been refused.
Explanation VI: Where persons litigate bona fide in respect of a public
right or of a private right alleged in common for themselves and others
all persons interested in such right shall, for the purposes of this
section, be deemed to allege under the persons so litigating.
Explanation VII: The provisions of this section shall administer to a
proceeding for the execution of a decree and references in this Section
to any suit, issue or former suit shall be explained as references,
respectively, to a proceeding for the execution of the decree, question
arising in such proceeding and a former proceeding for the execution of
that decree.
Explanation VIII: An issue heard and finally decided by a Court of
limited jurisdiction, competent to determine such issue, shall operate
as res judicata in a subsequent suit, nevertheless that such Court of
limited jurisdiction was not adequate to try such subsequent suit or the
suit in which such issue has been subsequently raised.
Object of Res Judicata
“Res judicata pron veriate accipitur” is the full maxim which has over the
years decreased to mere “res judicata”. It is well decided that Section 11
of the Code of Civil Procedure is not comprehensive of the general
doctrine of res-judicata and though the rule of res-judicata as legislated
in Section 11 has some technical aspects the general doctrine is
established on considerations of high public policy to attain two
objectives namely, that there must be finality to litigation and that
person should not be harassed twice over with the same kind of
litigation. (Gulam Abbas v. State of Uttar Pradesh[5]).
In Halsbury’s Laws of England[6],’ the following observation regarding
Res judicata is stated:
 Page 56 of 316

“Res Judicata is a rule of universal law that pervades every well-

regulated system of jurisprudence and is based on two grounds, each
of which is represented in a different maxim of the common law: the
first is public policy and necessity, which makes it to the state’s interest
to end litigation; the second is the hardship to the individual of being
vexed twice for the same cause.”
Nature and Scope of Res Judicata
The doctrine of res judicata, i.e., rule of conclusiveness of a judgment is
established on three maxims.
(i) Nemo debet bis vexari pro una et eadem causa (No man should be
vexed twice for the same cause).
(ii) Interest republicae ut sit finis litium (It is in the interest of state that
there should be an end to litigation).
(iii) Res judicata pro veritate accipitur (A judicial decision must be
accepted as correct).
The first maxim is based on the approach of private justice. It looks to
the interest of litigants. The principle of res-judicata is expected not only
to avoid a new decision but also to avoid a new investigation so that the
same person cannot be harassed again and again in different
proceedings upon the same question.
The second maxim is established on public policy that there should be
an end to litigation otherwise if suits were permitted to be filed endlessly
for the same cause of action it would be plainly absurd for the existing
Courts to cope with ever growing litigation.
The third maxim is also based on public policy, that judicial decisions
must be acknowledged as correct. In other words, it executes a rule of
conclusiveness of judgments as to the points decided in every
subsequent suit between the same parties.
The doctrine of res judicata is established on the principles of justice,
equity and good conscience. The doctrine of res judicata is a rule of
procedure and not substantive law. The bar of res judicata is mandatory
and cannot be avoided by a party except by invoking the Section 44 of
Indian Evidence Act, 1872 on the grounds that the judgment was
obtained by fraud or collision or was without jurisdiction.
The issue of res judicata is a combination of legal and factual issues.
The bar not only applies to the decision itself, but also to all facts and
circumstances in the case as necessary steps in laying the foundation
for that decision.
In Jaswant Singh v. Custodian of Evacuee Property[7], it was held
that in order to determine the question whether a subsequent
proceeding pending is barred by res judicata, it is essential to examine
the question with reference to the (i) forum or ability of the Court; (ii)
parties or their representatives, (iii) matters in issue, (iv) matter which
ought to have been made ground for attack or justification in the former
suit and (v) the final decision.
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In Management of Indian Aluminium Co. Ltd. v. Nagaiah[8], it was

held that Section 11 of the Code is not comprehensive of res judicata.
The administration of the doctrine is not restricted to Code of Civil
Procedure but extends to all litigations including Industrial Disputes
cases. The doctrine is established in consideration of high public policy.
Conditions for Application of Res Judicata
In order to establish a matter as res judicata, the following conditions
must be fulfilled :-
(i) There must be two suits, one former suit and other consecutive suit.
(ii) The Court which determined the former suit must be competent to
try the subsequent suit.
(iii) The matter directly and substantially in issue must be the same
either literally or constructively in both the suits.
(iv) The matter directly and subsequently in issue in the subsequent
suit must have been heard and finally decided by the Court in the
former suit.
(v) The parties to the suits or the parties under whom they or any of
them claim must be the same in both the suits.
(vi) The parties in both the suits must have prosecuted under the same
title.
Exceptions to the Plea of Res Judicata
Judgment in original suit acquired by fraud – if a court assumes that
the judgment of former suit is obtained by fraud, then the doctrine of
the res judicata is not used.
When the previous SLP is dismissed – When a special leave petition is
dismissed without decision then res judicata should not be used. For
obtaining Doctrine of Res Judicata, the formal suit should be decided
by the competent court.
A different cause of action – Section 11 will not be used when there is a
different cause of action in the consecutive suits. The court cannot bar
a consecutive suit if it contains a different cause of action.
When there is Interlocutory Order – Interlocutory order is the interim
order, decree or sentence delivered by the court. A principle of the Res
Judicata will not be used when an interlocutory order is passed on the
former suit. It is because in Interlocutory order immediate relief is given
to the parties and it can be modified by subsequent application and
there is no finality of the decision.
Waiver of a decree of Res Judicata – Decree of Res Judicata is a plea in
the bar that must be waived by the opposing party. If a party fails to
raise the defense of res judicata, the case will be determined in his favor.
It is the responsibility of the opposing party to inform the court of the
outcome of the previous suit. If a party fails to do so, the matter is
settled against him.
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Court not competent to decide – When the former suit is settled by the
court who has no jurisdiction to decide the matter then the doctrine of
res judicata is not used to the subsequent suit.
When there is a change in Law – When there is a change in the law and
new laws bring new rights to the parties then such rights are not
prohibited by Section 11.
When the court fails to apply Res Judicata
If the court fails to apply for res judicata and instead issues a contrary
judgement on the same issue, the matter will be sent to the third court,
which will apply res judicata based on the prior suit’s decision. Thus it
is the function and authority of the parties to the suit to bring the former
case to the attention of the court and the Judge will determine on
whether a plea of Res judicata should be allowed or not.
Conclusion
Res Judicata is a legal notion that exists in all jurisdictions around the
world. The Res Judicata concept has become an important feature of
the Indian legal system. The court can use Res Judicata when it believes
the case has already been determined by the previous suit, according to
Section 11 of the Civil Procedure Court, 1908.
This doctrine applies not only to civil courts in India, but also to
administrative law and other legislation. The finality concept, on which
the res judicata plea is based, is an issue of public policy. Res Judicata
is a legal doctrine that prevents repetitive judgements and protects the
interests of the other party by limiting the plaintiff’s ability to obtain
damages from the defendant twice for the same injury.

Every civil suit must be instituted before a lowest civil court

competent to try it.
What is the Place of Suing in CPC?
Place of suing in CPC refers to where a lawsuit or legal action should be
initiated or filed. It specifies the jurisdiction and venue where the case
should be brought before a court.
The provisions regarding the place of suing are outlined in the Code of
Civil Procedure to ensure that the appropriate Court with the necessary
jurisdiction is chosen for the efficient and fair resolution of the dispute.
The rules and guidelines related to the place of suing help determine
which Court is competent to hear and decide a particular case based on
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factors such as the nature of the case, the subject matter, the
geographical location of the parties involved, and other relevant
considerations.
Provisions for Place of Suing under CPC
The place of suing in CPC is discussed under Sections 15 to 20. Section
15 pertains explicitly to the pecuniary jurisdiction of the Court. Sections
16 to 18 address suits concerning immovable property, Section 19
covers suits related to compensation for wrongs and movable property,
and Section 20 deals with suits concerning other matters.
Section 15: Place of Suing Based on Pecuniary Basis
Section 15 of Code of Civil Procedure 1908- “Court in which suits to be
instituted”-“Every suit shall be instituted in the Court of the lowest
grade competent to try it”
Section 15 of the Code of Civil Procedure states that every lawsuit
should be initiated in the Court of the lowest grade with the competence
to handle it. This requirement aims to prevent overburdening of higher
courts. While a judgment passed by a higher-grade court remains valid,
a decree passed by an incompetent court would be considered void.
Therefore, a higher court decree cannot be passed without jurisdiction,
as clarified by the Nagpur Bench of the Bombay High Court in the case
of Gopal v. Shamrao (1941).
Section 15 serves two primary purposes:
 Reducing the workload of higher courts.
 Providing convenience to the parties and witnesses involved in
such lawsuits.
The jurisdiction of a court under Section 15 is determined based on the
valuation stated by the plaintiff in the lawsuit, rather than the final
amount for which the Court will pass the decree.
Kiran Singh v. Chaman Paswan (1954)
In the case of Kiran Singh v. Chaman Paswan (1954), a bench
comprising Justices Aiyyar and T.L. Venkatarama considered the
application of Section 11 of the Suits Valuation Act, 1887. This
provision, along with Sections 21 and 99 of the Code of Civil Procedure,
1908, is founded on the principle that once a case has been fully heard
and a judgment has been pronounced, it should not be overturned
solely on technical grounds unless there has been a miscarriage of
justice.
Mazhar Husain And Anr. v. Nidhi Lal (1885)
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In the case of Mazhar Husain and Anr. v. Nidhi Lal (1885), heard by
the Allahabad High Court before India’s independence, elucidates the
objectives of Section 15 of the Code of Civil Procedure, 1908. These
objectives, as observed in the case, are as follows:
 Avoiding overburdening higher-grade courts with an excessive
number of suits.
 Providing convenience to the parties and witnesses involved in
such suits.
Tara Devi v. Sri Thakur Radha Krishna Maharaj (1987)
In the case of Tara Devi v. Sri Thakur Radha Krishna Maharaj (1987),
the defendant raised a preliminary objection regarding the valuation of
the suit and questioned the Court’s authority to hear the case in
their written statement. The Trial Court determined that the valuation
of the suit fell under Section 7(IV)(c) of the Court Fees Act, 1870, and
that the plaintiff had correctly assessed the leasehold interest of the
lessee. The Trial Court concluded that the plaintiff had the right to
determine the value of the relief sought, which was neither arbitrary nor
unreasonable. Consequently, it was decided that the plaintiff had
accurately assessed the claim and paid the appropriate court fees.
In upholding the trial court’s decision, the Supreme Court of
India noted that disregarding objective valuation criteria and assigning
a value to the relief sought can be arbitrary and irrational. In such
cases, the Court is justified in intervening.
Section 16 to 20: Place of Suing Based on Territorial Aspects
When examining the territorial jurisdiction of a court, it is important to
consider the following four types of suits:
Suits related to immovable property: These are governed by Sections
16-18 of the Code of Civil Procedure. These sections outline the rules
and guidelines for filing suits concerning disputes over immovable
property.
Suits related to movable property: Section 19 of the Code of Civil
Procedure pertains to suits involving movable property. It lays down the
provisions for filing suits related to disputes over movable assets.
Suits related to compensation for wrongs: Section 19 of the Code of
Civil Procedure also covers suits concerning compensation for wrongs.
This section provides guidelines for filing suits seeking compensation
for injuries or damages caused by wrongful acts.
Other suits: Section 20 of the Code of Civil Procedure deals with suits
that fall outside the specific categories mentioned above. It
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encompasses suits that do not fit into the scope of immovable property,
movable property, or compensation for wrongs.
Place of Suing for Matters Involving Immovable Property (Section
16-18)
Section 16
Section 16 of the Code of Civil Procedure, 1908 states that suits related
to specific types of claims concerning immovable property should be
instituted in the Court within the local jurisdiction where the property
is situated. These types of suits include:
 Recovery of immovable property with or without rent or profits,
 Partition of immovable property,
 Foreclosure, sale, or redemption in the case of a mortgage or
charge on immovable property,
 Determination of any other right or interest in immovable
property,
 Compensation for wrong to immovable property,
 Recovery of movable property that is currently under distraint or
attachment.
However, there is a provision that if a suit seeks relief or compensation
for wrong to immovable property held by or on behalf of the defendant.
The relief can be entirely obtained through the defendant’s obedience,
the suit can be filed either in the Court within the jurisdiction where
the property is situated or in the Court within the jurisdiction where the
defendant resides, carries on business, or works for gain voluntarily and
effectively.

Subject-Matter Jurisdiction
Subject-matter jurisdiction refers to the authority of a court to hear and
decide cases based on the nature of the issues involved. Different courts
are granted jurisdiction over specific types of lawsuits to handle diverse
legal matters. For instance, matters related to insolvency, probate,
divorce, and similar issues cannot be adjudicated by a court of civil
judges of the junior division. If a court lacks subject-matter jurisdiction
over a particular case, any decree or judgment issued by that Court is
considered null and void.
Section 16 of the Code of Civil Procedure, 1908 allows invoking
jurisdiction in five specific types of suits, which are as follows:
 Partition of immovable property
 Recovery of immovable property
 Torts to immovable property
 Determination of any right or interest in the property
Sale, foreclosure, or redemption regarding a mortgage or charge on
immovable property
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In the case of Harshad Chiman Lal Modi v. DLF Universal Ltd.

(2005), the Supreme Court held that an action could be filed under
Section 16 of the CPC, 1908, in the jurisdiction where the immovable
property is located, regardless of factors such as the location of the
cause of action or the residence of the parties. In that particular case,
since the immovable property was in Gurgaon (Haryana), the Delhi High
Court lacked jurisdiction to hear the case.
Section 17 of the CPC
Section 17 of Code of Civil Procedure 1908 states, “Suits for immovable
property situate within the jurisdiction of different Courts”.
In cases where the immovable property is situated within the local
jurisdiction of different courts if a lawsuit is filed seeking compensation
or relief for wrongs caused to the immovable property, it can be brought
before any court within the jurisdiction where a portion of the property
is located. However, it is important to note that the Court hearing the
case will have cognizance over the entire claim, considering the
significance of the subject matter of the suit.
Section 18
Section 18 of Code of Civil Procedure 1908 deals with “Place
of institution of suit where local limits of jurisdiction of Courts are
uncertain”.
(1) Where it is alleged to be uncertain within the local limits of the
jurisdiction of which of two or more Courts any immovable property is
situate, any one of those Courts may, if satisfied that there is ground
for the alleged uncertainty, record a statement to that effect, and
thereupon proceed to entertain and dispose of any suit relating to that
property, and its decree in the suit shall have the same effect as the
property situated within the local limits of its jurisdiction:
Provided that the suit is one with respect to which the Court is
competent as regards the nature and value of the suit to exercise
jurisdiction.
(2) Where a statement has not been recorded under sub-section (1), and
an objection is taken before an Appellate or Revisional Court at a decree
or order in a suit relating to such property was made by a Court not
having jurisdiction where the property is situate, the Appellate or
Revisional Court shall not allow the objection unless in its opinion there
was, at the time of the institution of the suit no reasonable ground for
uncertainty as to the Court having jurisdiction with respect thereto and
there has been a consequent failure of Justice.
When there is uncertainty regarding the local jurisdiction of courts in
relation to immovable property, a court can record a statement and
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proceed with the case. The decree issued by that Court will be effective
as if the property was within its jurisdiction. However, suppose no
statement is recorded and an objection is raised before a higher court.
In that case, the objection will only be entertained if there is no
reasonable ground for uncertainty when filing the suit, resulting in a
miscarriage of justice.
Hakam Singh v. Gammon (India) Ltd. (1971)
In the case of Hakam Singh v. Gammon (India) Ltd. (1971), the
Supreme Court of India dealt with the issue of how the trial of a suit
should proceed when multiple courts have jurisdiction over it. The
defendant, a firm incorporated under the Indian Companies Act, had its
main place of business in Bombay and had entered into a contract with
the plaintiff that included a provision for arbitration and specified that
disputes would be resolved exclusively in Bombay courts. The plaintiff
objected to this restriction, arguing that it was against public policy.
The observations made by the Supreme Court, in this case, are as
follows:
Section 41 of the Arbitration Act, 1940, incorporates the entire Code of
Civil Procedure, 1908, for actions under the Act. Therefore, the Code of
Civil Procedure, 1908 governs the jurisdiction of courts to consider
arbitration proceedings and issue awards under the Arbitration Act,
1940.
Under Section 20(a) of the Code of Civil Procedure, the respondent
company, with its major place of business in Bombay, can be sued in
the courts of Bombay.
Parties cannot confer jurisdiction on a court through an agreement if
the Code of Civil Procedure does not confer such jurisdiction. However,
if two courts have jurisdiction to try a suit under the Code, an
agreement between the parties that the dispute be handled in one of
those courts is not against public policy.
The agreement between the parties, stipulating that the courts in
Bombay alone shall have jurisdiction to try the arbitration proceedings,
is binding since the courts in Bombay possess jurisdiction under the
Code of Civil Procedure, 1908, in this matter.
In summary, the Supreme Court held that the agreement between the
parties, conferring jurisdiction on the courts in Bombay to handle the
arbitration proceedings, was valid and enforceable as the Bombay
courts had jurisdiction as per the Code of Civil Procedure, 1908.
M/s. Exl Careers and Another v. Frankfinn Aviation Services
Private Limited (2020)
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In the case of M/s. Exl Careers and Another v. Frankfinn Aviation

Services Private Limited (2020), the Supreme Court of India examined
the language of Order VII Rule 10-A in comparison to the language used
in Section 24(2) and Section 25(3) of the Code of Civil Procedure, 1908.
The Court noted that there is a difference in the discretion provided to
the Court under Sections 24(2) and 25(3), which allows for the retrial or
continuation of proceedings from the point of transfer or withdrawal.
On the other hand, the scheme outlined in Order VII Rule 10 along with
Rule 10-A does not grant such discretion. Instead, the proceedings must
begin anew.
This observation by the Apex Court highlights the contrasting
approaches between the provisions of Section 24(2) and Section 25(3)
that enable the Court to retry or continue proceedings, and the
requirement under Order VII Rule 10, including Rule 10-A, where the
proceedings must commence afresh.
Place of Suing in CPC for Matters Involving Immovable Property
(Section 19)
Section 19 of Code of Civil Procedure 1908 deals with “Suits for
compensation for wrongs to person or movables”.
In cases where a suit involves compensation for a wrong done to a
person or movable property, if the wrong occurred within the
jurisdiction of one Court and the defendant resides, carries on business,
or personally works for gain within the jurisdiction of another court, the
plaintiff has the option to file the suit in either of the mentioned courts.
For instance, if Raj, who resides in Kolkata, commits a wrongful act
against Suraj, who resides in Gujarat, Suraj can choose to file the
lawsuit in either the Court in Kolkata or the Court in Gujarat, but not
in a third unrelated court like Delhi. This provision allows the plaintiff
to select the Court based on their convenience or strategic
considerations when the wrong and the defendant’s location fall under
different court jurisdictions.
Section 20: Place of Suing in CPC for Other Suits
Section 20 of Code of Civil Procedure 1908 deals with “Other suits to be
instituted where defendants reside or cause of action arises”
“Subject to the limitations aforesaid, every suit shall be instituted in a
Court within the local limits of whose jurisdiction-
(a) the defendant, or each of the defendants where there are more than
one, at the time of the commencement of the suit, actually and
voluntarily resides, or carries on business, or personally works for gain;
or
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(b) any of the defendants, where there are more than one, at the time of
the commencement of the suit, actually and voluntarily resides, or
carries on business, or personally works for gain, provided that in such
case either the leave of the Court is given, or the defendants who do not
reside, or carry on business, or personally work for gain, as aforesaid,
acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises.
Explanation I.-Where a person has a permanent dwelling at one place.
Also, a temporary residence at another place, he shall be deemed to
reside at both places in respect of any cause of action arising at the
place where he has such temporary residence.
Explanation II.-A corporation shall be deemed to carry on business at
its sole or principal office in {Subs. by Act 2 of 1951, s.3, for “the
States”.} [India] or, in respect of any cause of action arising at any place
where it has also a subordinate office, at such place.”
Section 20 of the Code of Civil Procedure is a residuary section that
addresses situations where the cause of action arises from a breach of
contract or business transactions. According to this section, if there is
a breach of contract or a cause of action within the jurisdiction of one
Court, or if the defendant voluntarily resides, carries on business, or
works for personal benefit within the jurisdiction of another court, the
plaintiff has the option to file the suit in either of those courts.
For example, let’s consider a scenario where Rohit, a clothing
manufacturer, is based in Sonepat, and Sonam, a clothing retailer, is
based in Gandhinagar. Through her agent, who resides in Bangalore,
Sonam enters into a transaction with Rohit. In such a case, the suit can
be filed either in Sonepat, where the cause of action originated, or in
Gandhinagar, where Sonam resides.
Section 20 provides flexibility to the plaintiff by allowing them to choose
the Court that is most convenient or beneficial for their case when the
cause of action or the defendant’s location falls under the jurisdiction
of different courts.
Section 21: Objections to Jurisdiction for Place of Suing
Section 21 of Code of Civil Procedure 1908 “Objections to Jurisdiction”
“No objection as to the place of suing shall be allowed by any Appellate
or Revisional Court unless such objection was taken in the Court of first
instance at the earliest possible opportunity and in all cases where
issues are settled at or before such settlement, and unless there has
been a consequent failure of justice.”
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Conclusion
The concept of the place of suing in CPC pertains to where a lawsuit
should be instituted or filed. It is essential to determine the appropriate
Court with the necessary jurisdiction and venue to resolve the dispute
efficiently. The CPC provides provisions and guidelines to identify the
Court of competent jurisdiction based on factors such as the case’s
nature, the parties’ geographical location, and the subject matter.
Section 15 of the CPC emphasizes that a suit must be instituted in the
Court of the lowest grade competent to handle it, thus preventing the
overburdening of higher courts.
Sections 16 to 20 of the CPC further clarify the specific situations where
suits related to immovable property, compensation for wrongs, or other
matters should be filed—additionally, Section 18 addresses cases where
the local limits of jurisdiction are uncertain.
The interpretation of these provisions by the Supreme Court has
provided insights into the significance of subject-matter jurisdiction,
objections related to territorial or pecuniary jurisdiction, and the
relevance of waivers and dispute resolution methods like arbitration.

What is Foreign Judgement under CPC?

The term “foreign judgment” is defined in Section 2(6) of the Code of
Civil Procedure as a judgment issued by a court outside India.
Section 13 of the Code outlines the criteria for recognising a foreign
judgment, which is a prerequisite for any enforcement proceedings.
Unless a foreign judgment meets the conclusiveness test outlined in
Section 13, it cannot be enforced.
What is a Foreign Court?
A “foreign court,” as defined in Section 2(5) of the Code of Civil
Procedure, refers to a court located outside India that is not established
or continued by the central government. Sections 13, 14 and 44 of the
Criminal Procedure Code govern foreign judgments.
Section 13 incorporates principles of private international law,
stipulating that a court will not enforce a foreign judgment if it is not
from a competent court. These rules are substantive and procedural in
nature.
Enforcement of Foreign Judgements Meaning
Enforcement of foreign judgments is the process of recognising and
giving effect to a judgment or order issued by a court in one country in
another country. This process allows the successful party in a lawsuit
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to seek the enforcement of the judgment in a different jurisdiction where

the defendant’s assets are located or where the judgment debtor resides.
For example, if a court in Country A awards damages to a plaintiff
against a defendant who resides in Country B, the plaintiff may seek to
enforce the judgment in Country B to recover the awarded damages.
The process of enforcement typically involves filing an application in the
local court of the jurisdiction where enforcement is sought, providing
evidence of the foreign judgment and complying with any procedural
requirements specified by the local laws.
Nature And Scope of Sec. 13, C.P.C.
A foreign judgment under CPC can operate as res judicata, except in
the six cases specified in Section 13 and subject to other conditions in
Section 11 of the CPC. The rules in this section are substantive rather
than procedural. The failure of a foreign judgment to address every
separate issue, such as the status of the contracting parties or the
measure of damages, is irrelevant unless such failure falls within one of
the exceptions to Section 13.
Object of Section.13 And 14
The primary objective of Sections 13 and 14 of the Code of Civil
Procedure is to provide a framework for the recognition and enforcement
of foreign judgments in India. These sections are based on the principle
that when a court of competent jurisdiction has adjudicated a claim,
there is a legal obligation to satisfy that claim.
Section 13 outlines the conditions under which a foreign judgment can
be recognised as conclusive in India. These conditions include that the
foreign court must have had jurisdiction, the judgment must be on the
merits of the case and it must not be contrary to Indian law or principles
of natural justice.
Section 14, on the other hand, deals with the presumption of lawfulness
of foreign judgments. It presumes that a foreign judgment is valid unless
proven otherwise.
The purpose of these provisions is to ensure that judgments from
foreign courts are respected and enforced in India in a manner that is
consistent with principles of justice, equity and good conscience. They
also provide a framework for the recognition of foreign judgments based
on international conventions and bilateral treaties.
Sources of Law on Enforcement of Foreign Judgements under CPC
There are three primary sources of law concerning the enforcement of
foreign judgments in India:
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 Laws Passed by Parliament (The Code): Section 44A of the Code

of Civil Procedure (CPC) explains that judgments from Superior
Courts of Reciprocating Territories are enforceable in India as if
they were judgments of Indian District Courts. However,
judgments from non-reciprocating territories require a fresh case
for enforcement, treating the foreign judgment as only of
evidentiary value. Sections 13 and 14 of the Code set out
conditions for foreign judgments to be recognised as conclusive or
as a presumption of lawfulness, respectively.
 Bilateral Treaties: India has bilateral treaties with certain
countries concerning the recognition and enforcement of foreign
judgments. These treaties govern the terms under which
judgments from these countries are recognised and enforced in
India.
 Judicial Precedents: Judicial decisions, such as the case of
Moloji Nar Singh Rao v. Shankar Saran, establish principles
regarding the enforcement of foreign judgments. For example, it
was ruled that a foreign judgment not from a superior court of a
reciprocating territory cannot be executed in India without a new
suit where it has only evidentiary value.
It’s important to note that for a foreign judgment to be recognised, it
must not be inconclusive under Section 13 of the Code. This means the
judgment must be from a court of competent jurisdiction, be given on
the merits of the case, not violate principles of natural justice and not
be obtained by fraud, among other criteria. The Code presumes the
competency of the foreign court’s jurisdiction unless proven otherwise.
India is not a party to the Convention on the Recognition and
Enforcement of Foreign Judgments in Civil and Commercial Matters.
However, it has entered into reciprocal cooperation and mutual benefit
agreements with various countries regarding the enforcement of foreign
judgments.
Applications for the recognition and enforcement of foreign judgments
under CPC can be heard by district courts with jurisdiction over the
matter in dispute or by high courts with ordinary original civil
jurisdiction, depending on the specific circumstances and the type of
foreign judgment involved.
Section 13: Enforceability of a Foreign Judgement under CPC
Requirements for the enforceability of a foreign judgment under CPC in
India include:
Finality: The foreign judgment must be final and conclusive. It should
not be subject to appeal or further review in the foreign jurisdiction.
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Compliance with Section 13 of the Code of Civil Procedure: Section 13

outlines the conditions under which a foreign judgment will not be
recognised or enforced in India. These conditions include:
 The judgment is not from a court of competent jurisdiction.
 The judgment is not on the merits of the case.
 The judgment is founded on an incorrect view of international law
or refuses to recognise Indian law.
 The judgment violates the principles of natural justice.
 The judgment was obtained by fraud.
 The judgment sustains a claim founded on a breach of Indian law.
It’s important to note that Indian law does not specify the types of
judgments that may be enforced. Instead, Section 13 of the Code of Civil
Procedure provides a list of conditions under which a foreign judgment
will not be recognised or enforced in India.
When a Foreign Judgement Has Been Passed by a Court Lacking
Jurisdiction
When a foreign judgment has been passed by a court lacking
jurisdiction, it is considered null and void, following a universally
recognised principle of law. This principle applies to Private
International Law as well, as reflected in the Code of Civil Procedure
(CPC).
For a foreign judgment to be recognised as conclusive and enforceable,
it must have been issued by a court of competent jurisdiction under
both the state’s law and international law. The court must have directly
addressed the legal matter for the judgment to be enforceable.
It’s important to note that the conclusiveness of the judgment lies in the
judgment itself, not in the reasoning behind it (ratio decidendi). A
landmark case illustrating this principle is Gurdyal Singh v. Rajah of
Faridkot. In this case, a person filed a suit in the court of Faridkot
against a former employee for misappropriation of money. However, the
employee was not a resident or domiciled in Faridkot at the time of the
suit. The court in Faridkot passed an ex parte decree against the
employee.
When the plaintiff sought to enforce this decree in a court in British-
occupied Indian territory, it was refused because the court in Faridkot
lacked jurisdiction over the matter. The mere occurrence of the alleged
embezzlement in Faridkot did not confer jurisdiction on the Faridkot
court, as the employee was neither residing nor domiciled there at the
time of the decree. Therefore, according to the principles of Private
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International Law, the Faridkot court lacked jurisdiction, rendering the

decree null and void.
When Foreign Judgements are not Passed on Merits of the Case
For a foreign judgment under CPC to be considered conclusive, it must
have been given on the merits of the case. A judgment is considered to
be on the merits when the judge, after conducting a fair hearing where
both parties have had the opportunity to present their case and the
evidence has been scrutinised, rules in favour of one party.
However, there are exceptions. For example, if a suit is dismissed
because the plaintiff failed to appear in court, such a judgment is not
considered to be on the merits of the case. This is because the case was
not fully heard and decided based on the evidence and arguments
presented by both parties.
It’s important to note that a judgment passed by a court ex parte, where
one party is absent, does not automatically mean that it is not based on
the merits of the case. If the absent party had been properly notified of
the proceedings but chose not to participate, the judgment may still be
considered to be on the merits.
When a Foreign Judgement is Against Indian or International Law
A foreign judgment under CPC that is inconsistent with goes against or
is based on an incorrect interpretation of international or Indian law will
not be considered conclusive and enforceable in India. The mistake
must be prima facie apparent in the proceedings for this to apply.
As seen in the case of Narasimha Rao v. Venkata Lakshmi, if a foreign
judgment is delivered based on grounds that are inconsistent,
unrecognised or in violation of Indian or international law, it will not be
considered conclusive and will not be enforceable in India.
When a Foreign Judgement is Passed in Direct Contravention of
the Principles of Natural Justice
A foreign judgment under CPC that is passed in direct contravention of
the principles of natural justice will be considered null and void. Natural
justice requires that a judgment be obtained after following due process
of law, which includes giving both parties a fair hearing and allowing
them to present their case.
If a judgment is passed in ignorance of or in violation of these principles,
the trial will be considered “coram non judice,” meaning it was
conducted without jurisdiction. Such a judgment will not be
enforceable.
When a Foreign Judgement is Procured via Fraud
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If a foreign judgment under CPC is obtained through fraudulent means,

it will not be considered res judicata and thus not be considered
conclusive or enforceable in India. In the case of Satya v. Teja Singh,
for example, the husband obtained a divorce decree by falsely claiming
to be an American citizen.
The Supreme Court of India held that the decree of divorce obtained
through fraud would not be enforceable and was considered null and
void. This principle reflects the stance in Private International Law that
judgments obtained through fraudulent means should not be
recognised or enforced.
When a Foreign Judgement is Found to be in Violation of Indian
Law
When a foreign judgment is based on a violation of Indian law, it will
not be enforceable in India. It is important for any nation-state not to
blindly adopt the rules of Private International Law. Every case
adjudicated by Indian courts must adhere to Indian law and must not
contradict Indian public policy.
In the case of Ruchi Majoo v. Sanjeev Majoo, the Supreme Court
emphasised that in matters concerning child custody, the welfare of the
child is paramount. Therefore, an Indian court must independently
review the case and make a decision that considers the best interests of
the child, taking into account any ruling made by a foreign court.
Final Words
The enforcement of foreign judgments under CPC is essential for
promoting legal certainty, facilitating cross-border trade and commerce
and ensuring access to justice in a globalised world. It provides parties
with the assurance that their rights and obligations will be respected
and enforced across borders, thus fostering trust and confidence in
international transactions. As such, efforts to improve and streamline
the enforcement of foreign judgments can contribute significantly to the
promotion of a fair and efficient international legal framework.

Fundamentals of Pleading: Order-VI

In the court of law, pleadings serve as the case's skeleton or its basis.
Pleadings are specifically covered in Order VI of the Code of Civil
Procedure, 1908 and it talks about Pleadings in General. Order VI
contains 18 rules altogether. According to the provision of this act,
pleading means a plaint or written statement.

In the case of Maria Margarida Sequeria Fernandes v. Erasmo Jack

De Squeria[1]it was stated that- Pleading being the foundation of
 Page 72 of 316

litigation must contain only relevant material by excluding irrelevant

and unnecessary information.
 Rule 1 talks about Pleading.
 Rule 2 outlines the basic principle of Pleading.
 Rule 3- 13 mandates the parties to provide with the required
documents.
 Rule 14-15 covers the signing and verification of pleading
respectively.
 Rule 16 grants the power to the court to strike out pleadings at
any stage of proceedings.
 Rule 17-18 talk about the amendment of pleadings.

According to P.C. Mogha - pleading is a statement in writing drawn up

and file by each party in any suit. It includes all those things upon
which the suit is a frame and the defendant submit his own written
statement.[2] The initial stage of a lawsuit called pleading, parties
formally present their claims and defences.

In this, a plaintiff submits a complaint, or plaint, outlining their cause

of action and the issues at hand. The defendant provides a written
statement in response outlining his or her defences and denies. A
counterclaim naming a cause of action against the plaintiff may also be
submitted by the defendant. An essential purpose of pleadings is to
inform the defendant that a lawsuit has been filed against him.
Additionally, it informs the plaintiff of the defendant's plans in relation
to the lawsuit.

Objective
Pleading helps the parties understand the details of the claim made
against them by the adverse party, saving time and money. In the past,
when pleadings were not common and parties used to argue their case
in court, it occasionally happened that parties took a long time to
respond to claims because of the sudden and new arguments of the
opposing party. The main goal of pleading is to focus on the key issues
and paint a precise picture of the case, which improves and speeds up
the court process.

The pleadings assist both parties in understanding their points of

contention and where they diverge so that they can present the most
pertinent arguments and evidence in court. In the case of Throp v.
Holdsworth[3]it was held that:

The whole object of pleading is to bring parties to an issue and the

meaning of the rules relating to pleadings was to prevent the issues
bring enlarged, which would prevent other parties from knowing when
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the cause came on for trial, what the real point to be discussed and
decided.

Fundamentals Of Pleading
Sub-rule (1) of Rule 2 (order VI) states the fundamentals of
pleadings:
1. The first fundamental of rule of pleading is that it should only
state facts and not the law.
2. The facts that are stated in the pleading must be material facts.
3. It should never state or disclose the evidence.
4. The facts stated in the pleading must be in a concise form.

Facts and not law

In the case of Kedar Lal v. Hari Lal the Supreme Court ruled that in a
civil lawsuit, the parties are only required to describe the events that
occurred and the basis for their claims in their pleadings; it is the
judiciary's responsibility to apply the law. It implies that the parties
should outline their claims and the reasons why they should be
accepted.

Material facts
The term "material fact" is not specifically defined in the CPC, 1908 or
any other law. In Udhav Singh v. Madhav Rao Scindia,[5] the Supreme
Court provided the following definition of "material fact": According to
the court, "material facts" are all those important details that the parties
rely on to support their claims and establish their causes of action or to
make a strong defence or counterclaim against the party making the
initial claim.
The courts have noted that determining what facts or information
qualifies as a material fact is a subjective matter that will be decided by
the court on an individual basis depending on the facts and
circumstances of each case.

Facts and not evidence

This rule mandates that the evidence in the pleadings be excluded. In
other words, the party is not required to mention the witnesses or
documentary evidence that it intends to present to the court in order to
use against the opposing party. This is done to guarantee the safety of
the evidence and the fairness of a trial. According to jurisprudence,
there are two different types of facts: facta probanda and facta
probantia.
 Facts probanda: material facts
 Facts probantia: evidence
Concise form
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The last and most important fundamental rule, also known as the "rule
of brevity," calls for the pleadings to be concise, clear, and limited to the
interpretation that the pleader wishes to convey. Not only should the
pleading be brief, but it also needs to be precise. Even though the
pleading must be concise, it must also be accurate and certain. For the
sake of brevity, pleadings shouldn't be compromised in terms of clarity
and specificity. However, this does not imply that the facts that must be
stated are so brief as to lose their significance in the pleadings.

The very goal and objectives of pleading are to discover the true source
of controversy and it would be defeated if there is a lack of precision in
the arguments. The Golden Rule of pleading states that the facts must
be presented in such a way that neither important nor irrelevant
information is left out or included.

The Supreme Court made the following observation in the case

of Virendra Kashinath v. Vinayak N. Joshi:
"Pleadings must be brief and niggling [i.e. causing slight but persistent
annoyance, discomfort, or anxiety should be avoided.]" However, this
does not imply that crucial information must be left out or overlooked
in an effort to achieve brevity. According to the court, if syntax errors
and drafting style are avoided, pleadings can be clear and legible.
Other Rules Of Pleading
Rule 3 to Rule 16 (Order VI) talks about other rules of pleading:
 Specific details with regard to dates and items should be
mentioned in the pleadings in a case for misrepresentation,
criminal breach of trust, fraud, or willful default in payment of
due.

 It is not necessary to mention a condition precedent to filing a

lawsuit if it has been satisfied. If it is not, it is crucial to mention
the fact and provide justifications. For instance, no legal action
against the government may be brought without two months'
notice under Section 80 of the CPC. Therefore, the plaintiff must
mention this as well as the reason for non-adherence if the notice
is not served.

 If no new allegations or grounds for a claim are added to the initial

pleadings, a pleading may be amended at a later stage of the
proceeding.

 Each pleading must be signed by the party whose pleading it is,

must be verified by the party whose pleading it is, and must be
accompanied by a sworn affidavit that serves as the party's
 Page 75 of 316

deposition.

 Documents need not be fully described in the pleadings unless

their content is crucial.

 When a person's malice, fraudulent intention, knowledge, or other

mental state is relevant, it may be alleged in the pleading only as
a fact without stating the specific circumstances from which it is
to be inferred. Such circumstances actually serve as material fact
evidence.

 When giving notice to a person is required or a condition

precedent, pleadings should only mention giving the notice; they
shouldn't specify its exact form or duration, or the circumstances
from which it should be inferred, unless those details are crucial.

 Implied agreements or relationships between people may be stated

as a fact, and a general plea should be made based on
correspondence, a conversation, or other evidence.

 It is not necessary to plead facts that the court presumes to be

true or that the other side must prove. Every claim must be signed
by the claimant, one of the claimants, or his or her pleader.

 A party to the action must provide his address. He should also

include the other party's address.

 Each pleading must be verified on an affidavit by the party, one of

the parties, or a third party who is familiar with the case's facts.

 If a pleading is unneeded, scandalous, frivolous, vexatious, or has

the potential to jeopardise, embarrass, or delay a fair trial of the
case, the court may order that it be struck out.

 Where appropriate, forms from Appendix A of the Code should be

used. Forms of a similar nature should be used in cases where
they are not applicable.

 Each pleading should be divided into paragraphs that are serially

numbered. A separate paragraph should be used to state each
allegation or assertion. Dates, totals, and numbers should be
written both in words and in figures.
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Amendment Of Pleading
Amendment of a pleading is covered by Rules 17 and 18 of Order VI of
the Code of Civil Procedure, 1908. These rules work to bring about
justice in society. According to Rule 17 of the Code of Civil Procedure,
1908, either party may be required to amend or alter his pleading at
any point during the proceeding in a fair and just manner, allowing
amendment when necessary to settle the precise contentious issue
between the parties.

Rule 18 deals with the problem of the pleading not being amended. It
deals with the law that states if a party is ordered by the court to make
a necessary change and fails to do so within the time limit specified in
the order, or if no time limit is specified, then within 14 days of the
order's date, he will not be allowed to amend after the time limit
specified above, or after such 14 days, as the case may be, unless the
time is extended by the court.

Conclusion
Any legal case's foundation is made up of pleadings. The pleading lays
out the case. It directs the parties to develop their arguments and
understand the other party's claims in order to frame claims or defences
for either party, as appropriate. It serves as direction for the entire suit
journey.

They also specify what types of admissible evidence the parties may
present during the trial. The fundamental guidelines for pleadings are
set forth in the Code of Civil Procedure, along with any modifications.
These rules are intended to achieve justice's highest goals while
maintaining social harmony.

What are Set-Off and Counter Claim in CPC?

Set-off in CPC refers to the statutory defence where a defendant can
counterbalance the plaintiff’s claim by asserting their claim for a related
or ascertained sum. Counterclaim, on the other hand, is a cross-action
initiated by the defendant, allowing them to maintain an independent
claim against the plaintiff, even if it does not arise from the same
transaction.
Definition and Meaning of Set-Off [Rule 6 of Order 8]
Set-off is the mutual cancellation of debts. It is a reciprocal arrangement
where two parties acquit each other of their debts. The Code does not
explicitly provide the meaning and definition of set-off, but it can be
inferred from judicial interpretation.
 Page 77 of 316

A claim of set-off arises when one party asserts a claim against another
party. It is a counter-claim that partially offsets the original claim. Set-
off occurs when two individuals owe each other debts and are
extinguished by their reciprocal credits.
In cases where the plaintiff and the defendant have mutual debts, one
debt can be settled against the other. Set-off serves as a defensive plea
available to the defendant. Through adjustment, set-off either
eliminates or reduces the plaintiff’s claim in a lawsuit for monetary
recovery.
In the case of B. Seshaiah v. B. Veerabhadrayya, the Andhra High
Court explained the concept of set-off as follows:
Set-off is the process by which the debts of two individuals, who are
mutually debtors and creditors to each other, are extinguished by their
reciprocal credits.
Essential of set-off
The essential requirements for a defendant to claim a set-off are as
follows:
 The lawsuit must be initiated to recover a specific sum of money.
 The amount of money being claimed must be determinable and
clear.
 The money being claimed must be legally recoverable.
 The defendant, or all the defendants, if multiple, must have the
right to recover the money.
 The money must be recoverable from the plaintiff or all the
plaintiffs if multiple.
 The claimed amount must be within the jurisdiction of the court
in which the lawsuit is filed.
 Both parties involved must possess the same character in the
defendant’s claim for set-off as in the plaintiff’s lawsuit.
Effect of Set-off
When a defendant asserts a set-off, he assumes the role of a plaintiff
regarding the claimed amount. This results in two simultaneous
lawsuits: one initiated by the plaintiff against the defendant and another
by the defendant against the plaintiff. These lawsuits are heard together
and are not assigned separate suit numbers specifically for the set-off
claim.
 Page 78 of 316

If the plaintiff fails to appear in court, leading to the dismissal of their

suit due to default, or if the plaintiff voluntarily withdraws their suit, or
if the plaintiff fails to substantiate their claim during the trial resulting
in the dismissal of their suit, it does not impact the defendant’s claim
for set-off. In such cases, if the defendant can substantiate their claim,
a decree may be granted in favour of the defendant.
Counter Claim by Defendant in CPC
Sub-rule (i) of Rule 6-A permits the defendant to present a counter-
claim against the plaintiff’s claim, encompassing any right or claim that
the defendant may have against the plaintiff. This right or claim can
arise before or after the lawsuit’s filing, but it must be asserted before
the time designated for the delivery of the defendant’s defence has
expired.
A counter-claim serves as a plea available to the defendant to challenge
the relief sought by the plaintiff. As per Black’s Judicial Dictionary, a
“counter-claim” refers to a claim made by the defendant against the
plaintiff in a lawsuit. Hence, in addition to the option of pleading a set-
off, the defendant in a civil suit can raise a counter-claim.
A counter-claim is an independent and separate claim from the
plaintiff’s, which can be enforced through cross-action. It represents a
cause of action in favour of the defendant against the plaintiff.
Consequently, a counter-claim constitutes a valid cross-action, and the
court can render a final judgment on both the original claim and the
counter-claim.
In the case of Ramesh Chand v. Anil Panjwani, the Supreme
Court outlined the three modes of pleading or presenting a counter-
claim in a civil suit:
 In the written statement filed under Order 8 Rule 1;
 By amending the written statement with the court’s permission to
include a counter-claim; and
 In a subsequent pleading under Order 8 Rule 9.
A defendant can file a counter-claim based on a cause of action distinct
from the cause of action put forth by the plaintiff. The counter-claim
doesn’t need to be limited to a monetary claim or to be of the same
nature as the plaintiff’s cause of action. It can be unrelated or
unconnected to the original cause of action or matter pleaded by the
plaintiff.
For example, in a lawsuit seeking an injunction, a counter-claim for an
injunction concerning the same or different property can be raised
under Order VIII, Rule 6-C. The plaintiff may object to the counter-claim
 Page 79 of 316

being decided within the lawsuit and instead request its resolution
through an independent suit.
The plaintiff can apply to exclude the counter-claim at any time before
the issues related to the counter-claim are determined. Upon hearing
the application, the court has the authority to issue an appropriate
order as deemed fit.
When to file a counter-claim?
In the case of Ashok Kumar Kalra vs Wing Cdr, Surender
Agnihotr, the court allows the filing of a counter-claim under the
following circumstances:
 The counter-claim can be filed before or after the initiation of the
lawsuit.
 It should be filed before the defendant has submitted their written
statement.
 It should be filed before the time limit set for delivering the
defendant’s defence expires.
Generally, the court permits filing a counter-claim after the defendant
has submitted their written statement but before the issues are
formulated. However, the counter-claim may be allowed in exceptional
cases even after the issues are framed. This is done to avoid the
commencement of multiple proceedings on the same matter.
Effect of Counter-claim
The counter-claim carries significant implications. Even if the plaintiff’s
lawsuit is stayed, discontinued, dismissed, or withdrawn, the counter-
claim will be independently assessed on its merits, and the defendant
will have the right to obtain a decree based on the counter-claim as
stated in their written statement.
Suppose the plaintiff fails to respond to the counter-claim made by the
defendant. In that case, the court may issue an ex parte judgment
against the plaintiff regarding the counter-claim or make any other
appropriate order.
According to Rule 6-A(4), the counter-claim is treated as a plaint
governed by the rules applicable to plaints. Similarly, Rule 6-G specifies
that a reply filed in response to a counter-claim is treated as a written
statement and is subject to the rules applicable to written statements.
In the leading case of Laxmidas v. Nanabhai, the Supreme
Court emphasized that no legal impediment prevents a court from
treating a counter-claim as a plaint in a cross-suit. While the Code of
Civil Procedure outlines the requirements for a plaint, it does not
 Page 80 of 316

preclude the court from reasonably interpreting and construing

the pleadings.
Suppose the counter-claim essentially functions as a plaint in a cross-
suit, even if it is incorporated into the written statement or attached to
it as an annexure. In that case, the court has the authority to consider
it as a plaint and grant relief to the defendant as would have been
permissible if the pleading had been presented as a plaint. To hold
otherwise would elevate a mere defect in the form of pleading into a
means of denying justice, contrary to what justice genuinely demands.
What is the Difference Between Set-Off and Counter Claim in CPC?
It is crucial to understand and carefully consider the difference between
set-off and counter-claim under CPC, as they may appear similar but
have significant differences:
Nature
Set-off is a statutory defence available to the defendant in response to
the plaintiff’s action, while a counter-claim is essentially a cross-action
initiated by the defendant.
Basis
Set-off must be based on an ascertained sum or arise from the same
transaction as the plaintiff’s claim. On the other hand, a counter-claim
does not necessarily have to arise from the same transaction.
Purpose
Set-off serves as a statutory defence and is pleaded in the written
statement. It acts as a shield for the defendant and cannot be used as
an offensive measure. In contrast, a counter-claim does not provide a
defence against the plaintiff’s claim. Instead, it empowers the defendant
to assert their claim against the plaintiff, similar to an independent
action. It serves as a weapon of offence.
Scope
An equitable set-off typically cannot exceed the plaintiff’s claim and is a
defensive measure. In contrast, a counter-claim can exceed the
plaintiff’s claim as it operates as a cross-action.
According to Rule 6-F of Order 6, if a set-off or counter-claim is
established as a defence against the plaintiff’s claim and a balance is
found due to the defendant, the court may grant judgment to the party
entitled to such balance.
 Page 81 of 316

However, it is important to note that in both set-off and counter-claim

cases, the defendant’s claims must not exceed the pecuniary limits of
the court’s jurisdiction.

Set-off Counterclaim

Cross-action initiated
Nature Statutory defence
by the defendant

Must be an ascertained sum

Not required to arise
or arise from the same
Basis from the same
transaction as the plaintiff’s
transaction
claim

Offensive measure
Defence against plaintiff’s
Purpose against the plaintiff’s
claim
claim

Pleaded in the written Treated as a separate

Pleadings
statement claim

Generally cannot exceed the Can exceed the

Scope
plaintiff’s claim plaintiff’s claim

Claims must not exceed the Claims must not exceed

Jurisdiction
court’s pecuniary the court’s pecuniary
limits
jurisdiction limits jurisdiction limits

Conclusion
The concepts of set off and counter-claim in the Code of Civil Procedure
play significant roles in the legal framework of civil suits. While they
may share some similarities, they have distinct characteristics and
serve different purposes.
Set-off is a statutory defence available to the defendant, allowing them
to counterbalance the plaintiff’s claim by asserting their claim for a
related or ascertained sum. It is a shield to mitigate the plaintiff’s claim
and must be pleaded in the written statement. Set-off is limited in scope,
generally not exceeding the pecuniary limits of the court’s jurisdiction.
On the other hand, a counter-claim is substantially a cross-action
initiated by the defendant. It goes beyond defence and allows the
defendant to assert an independent claim against the plaintiff, even if it
does not arise from the same transaction. A counter-claim is treated as
 Page 82 of 316

a separate claim and can exceed the plaintiff’s claim in its scope and
relief sought. The defendant can file a counter-claim either in the
written statement, by amending the written statement with the court’s
permission, or in a subsequent pleading.
The court has the authority to adjudicate on both the original and
counter-claims. Even if the plaintiff’s suit is stayed, discontinued,
dismissed, or withdrawn, the counter-claim will be decided on its
merits. If the plaintiff fails to respond to the counter-claim, the court
may pronounce an ex parte judgment or make an appropriate order
related to the counter-claim.

Written statement
A written statement ordinarily means a reply to the plaint filed by the
plaintiff. It is the pleading of the defendant. Order 8 of the Code of
Civil Procedure, 1908 (CPC) contains provisions in relation to written
statement.
Written Statement
 Rule 1 of Order 8 deals with written statement. It states that -
The Defendant shall, within thirty days from the date of service of
summons on him, present a written statement of his defence.
Provided that where the defendant fails to file the written statement
within the said period of thirty days, he shall be allowed to file the
same on such other day, as may be specified by the Court, for
reasons to be recorded in writing, but which shall not be later than
ninety days from the date of service of summons.
Provided that where the defendant fails to file the written statement
within the said period of thirty days, he shall be allowed to file the
written statement on such other day, as may be specified by the Court,
for reasons to be recorded in writing and on payment of such costs as
the Court deems fit, but which shall not be later than one hundred
twenty days from the date of service of summons and on expiry of
one hundred twenty days from the date of service of summons, the
defendant shall forfeit the right to file the written statement and
the Court shall not allow the written statement to be taken on
record.
New Facts to be Specially Pleaded in Written Statement
 As per Rule 2 of Order 8 of CPC, the defendant must raise by his
pleading all matters which show the suit not be
maintainable, or that the transaction is either void or voidable in
point of law, and all such grounds of defence as, if not raised,
would be likely to take the opposite party by surprise, or would
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raise issues of fact not arising out of the plaint, as, for instance,
fraud, limitation, release, payment, performance, or facts showing
illegality.
Denial to be Specific in Written Statement
 As per Rule 3 of Order 8 of CPC, it shall not be sufficient for a
defendant in his written statement to deny generally the grounds
alleged by the plaintiff, but the defendant must deal specifically
with each allegation of fact of which he does not admit the
truth, except damages.
Evasive Denial in Written Statement
 As per Rule 4 of Order 8, where a defendant denies an allegation
of fact in the plaint, he must not do so evasively, but answer
the point of substance. Thus, if it is alleged that he received a
certain sum of money, it shall not be sufficient to deny that he
received that particular amount, but he must deny that he
received that sum or any part thereof, or else set out how much
he received. And if an allegation is made with diverse
circumstances, it shall not be sufficient to deny it along with
those circumstances.
Set-Off to be Given in Written Statement
 As per Rule 6 of Order 8 of CPC, 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.
Counter Claim to be Stated in Written Statement
 As per Rule 6B of Order 8 of CPC, where any defendant seeks to
rely upon any ground as supporting a right of counterclaim, he
shall, in his written statement, state specifically that he does
so by way of counterclaim.
Failure to Present Written Statement
 As per Rule 10 of Order 8 of CPC where any party from whom a
written statement is required under Rule 1 or Rule 9 fails to
present the same within the time permitted or fixed by the Court,
as the case may be, the Court shall pronounce judgment
against him, or make such order in relation to the suit as it
 Page 84 of 316

thinks fit and on the pronouncement of such judgment a decree

shall be drawn up.
 Provided further that no Court shall make an order to extend
the time provided under Rule 1 of this Order for filing of the
written statement.
Case Law
 In Kailash v. Nankhu (2005), the Supreme Court held that the
proviso to Rule 1 of Order 8 of CPC is directory and permissive
and not mandatory and imperative.
 In Salem Advocate Bar Assn. V. Union of India (2005), the
Supreme Court clarified that under Rule 10 of CPC, the court
has wide powers to ‘make such order in relation to the suit as
it thinks fit.’ The order extending the time to file a written
statement cannot be made routinely. The time can be extended
only in exceptionally hard cases.

What is a Judgement?
A Judgement is defined under Section 2(9) of the CPC as “the
statement given by the judge on the grounds of a decree or order.” In
simpler terms, a judgement is the judge’s reasoning behind the court’s
final decision in a civil suit. It is the final expression of the court’s
opinion on the matter after hearing the arguments, examining the
evidence and considering the applicable laws.
A judgement is delivered after the court has heard both parties and it
forms the basis for issuing a decree or order. A judgement must include
a concise statement of the facts of the case, the points for determination,
the decisions on those points and the reasoning behind those decisions.
Essentials of a Judgement
The key elements that a judgement must include, as per Order XX Rule
4 of the CPC, are as follows:
1. Concise statement of the case: The judge must provide a brief
summary of the facts and circumstances leading to the case.
2. Points for determination: The judgement must outline the legal
issues or questions that need to be addressed.
3. Decision on each point: The judge must express his or her ruling
on each of the points raised.
4. Reasons for the decision: The judge must provide a logical and
legal explanation for reaching the final decision.
 Page 85 of 316

5. Relief granted: If the case involves a claim for relief, the

judgement should specify the relief that is granted to the parties.
Pronouncement of Judgement
Once the court concludes the hearing, it is required to pronounce the
judgement in open court, either immediately or on a later date fixed by
the court, as per Order XX Rule 1. In cases where the judgement
cannot be pronounced immediately, the court should attempt to
pronounce it within 30 days, with a maximum extension of 60 days
under exceptional circumstances.
A judgement must be signed and dated by the judge and, once signed,
it cannot be altered except for clerical or arithmetical mistakes, as
stated under Section 152 of the CPC.
Legal Precedent on Judgement
In the case of Gajraj Singh v. Deohu (1951), the court held that a
judgement must be intelligible and demonstrate that the judge has
applied his mind to the facts and issues of the case. A judgement that
does not reflect the reasoning behind the decision is not legally valid.

What is a Decree?
A Decree is defined under Section 2(2) of the CPC as the formal
expression of an adjudication by a civil court, which conclusively
determines the rights of the parties in relation to all or any of the
matters in controversy in a suit. Simply put, a decree is the official
declaration of the court’s decision regarding the rights and obligations
of the parties involved in a lawsuit.
A decree is issued after the judgement has been delivered and it can be
either preliminary or final. A decree must be formally drawn up and
must align with the judgement passed by the court.
Essentials of a Decree
The essential elements of a decree are as follows:
1. Adjudication: There must be a judicial determination of the
matter in dispute.
2. Suit: The decree must arise from a civil suit; it cannot be issued
in non-contentious proceedings.
3. Determination of rights: The decree must settle the substantive
rights of the parties, not merely procedural rights.
 Page 86 of 316

4. Conclusive determination: The decision must be final and not

subject to further adjudication, although it may be subject to
appeal.
5. Formal expression: The court’s decision must be expressed
formally in writing and signed by the judge.
Types of Decrees
There are several types of decrees recognised under the CPC:
1. Preliminary Decree: This is issued when the court decides the
rights of the parties but requires further proceedings to fully
resolve the matter. For example, in a partition suit, a preliminary
decree may be passed to define the shares of the parties.
2. Final Decree: This decree fully and finally disposes of the matter
in controversy between the parties. Once a final decree is passed,
there is nothing left to be decided in the suit.
3. Partly Preliminary and Partly Final Decree: In some cases, a
decree may be both preliminary and final. For example, in a suit
for possession of property and mesne profits, the decree may be
final regarding possession but preliminary regarding the
determination of mesne profits.
4. Deemed Decree: Certain orders that resemble decrees but are not
formally classified as such are known as deemed decrees. For
example, the rejection of a plaint under Order VI Rule 11 of the
CPC is treated as a deemed decree.
Legal Significance of a Decree
A decree has legally binding force and can be executed through
enforcement mechanisms if the party against whom it is passed fails to
comply. A decree may be appealed and an appellate court may confirm,
modify or overturn the decree. The execution of a decree involves
taking steps to enforce the rights determined by the court.
What is an Order?
An Order is defined under Section 2(14) of the CPC as the formal
expression of any decision of a civil court which is not a decree. Orders
are issued by courts in response to applications made by parties during
the course of a suit or proceeding. Unlike decrees, which conclusively
determine the substantive rights of parties, orders typically deal with
procedural matters or interlocutory decisions.
Essentials of an Order
The key elements of an order are as follows:
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1. Formal expression: An order must be formally expressed in

writing by the court.
2. Non-decree: An order must be a decision that does not qualify as
a decree.
3. Pronounced by a civil court: The order must be issued by a civil
court during legal proceedings.
Types of Orders
Orders can be broadly categorised into two types:
1. Appealable Orders: Certain orders are appealable and parties can
challenge them before a higher court. Section 104 and Order 43
Rule 1 of the CPC enumerate the orders that are appealable.
2. Non-Appealable Orders: Orders that cannot be appealed unless
specifically provided for in the CPC. These are generally
interlocutory orders that do not finally determine the rights of the
parties.
Final and Interlocutory Orders
 Final Orders: A final order conclusively determines the rights of
the parties on a particular issue or stage of the proceedings. It
settles the matter completely with no further issues left for
adjudication.
 Interlocutory Orders: These are temporary orders passed by the
court during the pendency of a suit. They do not determine the
final outcome but are issued to address procedural matters or
provide interim relief to the parties. For example, an order
granting or refusing an injunction is an interlocutory order.

Key Differences Between Order, Decree and Judgement

Nature
 A judgement explains the reasons for the court’s decision and
serves as the basis for a decree or order.
 A decree is the formal expression of the court’s decision that
conclusively determines the rights of the parties in a suit.
 An order is a formal expression of the court’s decision that does
not qualify as a decree and typically addresses procedural or
interlocutory matters.
Scope
 A judgement provides reasoning and addresses all issues raised
in the suit.
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 A decree deals with the final adjudication of the rights of the

parties.
 An order deals with both procedural and substantive issues but
does not finally adjudicate the rights of the parties, except in cases
of final orders.
Appeal
 A decree can generally be appealed and a second appeal may also
lie in certain circumstances.
 An order can only be appealed if it is specified as appealable
under Section 104 and Order 43 Rule 1.
 A judgement cannot be appealed independently; only the decree
or order that follows the judgement can be appealed.
Finality
 A judgement leads to the passing of a decree or order.
 A decree is conclusive and determines the rights of the parties.
 An order may or may not be final and may require further
adjudication of the matter.

Here’s the table summarising key differences between order, decree and
judgement:

Criteria Judgement Decree Order

Formal
Formal
expression of
A statement given expression of
adjudication
by the judge based a decision
that
Definition on a decree or that is not a
conclusively
order (Section 2(9) decree
determines
of CPC). (Section 2(14)
rights (Section
of CPC).
2(2) of CPC).

A concise
Adjudication,
statement of the Formal
suit,
case, points for expression,
determination of
determination, the non-decree,
Essentials rights,
decision on points, must be
conclusive,
reasons for the issued by a
formal
decision, and relief civil court.
expression.
granted.
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Preliminary, Final,
Final, Partly Interlocutory,
No specific types of
Types Preliminary and Appealable,
judgements.
Final, Deemed Non-
Decree. Appealable.

Only certain
Judgements Appealable orders are
themselves are not under normal appealable
Appealability appealable, but the circumstances, under Section
decree/order second appeals 104 and
based on it may be. may also lie. Order 43 Rule
1.

Conclusive May or may

Forms the basis for
determination of not be final,
a decree or order,
Finality rights; final depending on
not final on its
except when the nature of
own.
appealed. the order.

Addresses
procedural or
Concludes the
Provides reasoning substantive
Relation to rights of the
for the court’s issues, may
Case parties in a civil
decision. or may not
suit.
conclude
rights.

Conclusion
Understanding the difference
between Order, Decree and Judgement is essential for anyone
navigating the complexities of civil law. While all three are integral to
the judicial process, they serve distinct purposes.
A judgement provides the legal reasoning behind the court’s decision,
a decree formally resolves the rights of the parties and
an order addresses procedural and sometimes substantive matters
during the course of the suit. Each plays a critical role in the legal
process and comprehending their differences is key to ensuring that
legal proceedings are conducted efficiently and justly.
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What are the Appearance and Non-Appearance of Parties in CPC?

In the Code of Civil Procedure (CPC), “appearance” and “non-
appearance” refer to the participation or absence of the parties involved
in a legal case during court proceedings.
Appearance: When a party “appears,” it means they actively engage in
the legal proceedings by being present in court or by being represented
by their legal representative (pleader). This can include attending
hearings, presenting arguments, submitting evidence, and responding
to the court’s directions or questions.
Non-appearance: On the other hand, “non-appearance” signifies the
absence of a party from the court proceedings. If a party is required to
be present in court but fails to attend or be represented by their legal
representative, it is considered a “non-appearance.” This can have
consequences depending on the stage of the case and the rules set forth
in the CPC.
The CPC outlines various rules and provisions regarding appearances
and non-appearances of parties. It provides guidelines for what happens
when a party is absent during hearings, including the potential for
decisions or orders to be made in their absence, such as ex-parte
decrees. It also provides provisions for parties to seek relief or remedies
if they have valid reasons for not being able to appear in court.
The Appearance of Parties to the Suit
According to the provisions of Rule 1 within Order IX of the Code of Civil
Procedure, the involved parties in the lawsuit must make their presence
felt in court, either through personal appearance or by means of their
legal representatives, on the designated date mentioned in the
summons.
In the event that the plaintiff or defendant, upon being directed to
attend the proceedings personally, fails to do so without furnishing a
satisfactory reason for their non-appearance, Rule 12 of Order IX
confers upon the court the following powers:
 In case of the plaintiff’s non-appearance, the suit will be
dismissed.
 If the defendant does not make an appearance, an ex-parte order
will be issued.
Non-Appearance of Both Parties to the Suit
In situations where both the plaintiff and the defendant do not appear
before the court during the hearing of the suit, the court is granted the
authority to dismiss the suit per Rule 3 of Order IX. It’s important to
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note that the dismissal of the suit under this provision does not prevent
the initiation of a fresh suit based on the same cause of action, as
outlined in Rule 4.
Furthermore, the plaintiff has the option to request the court to
reconsider the dismissal if they can sufficiently demonstrate that valid
reasons existed for their non-appearance. Should the court find the
justification for the non-appearance acceptable, it has the discretion to
overturn the dismissal order and establish a new hearing date for the
suit.
The Appearance of the Plaintiff
In instances where only the plaintiff makes an appearance while the
defendant does not, the court has the authority to issue an ex-parte
order against the absent defendant. However, it is imperative for the
plaintiff to substantiate that the summons was properly served to the
defendant.
Only upon the verification of proper summons service can the court
proceed to issue an ex-parte order against the defendant, which might
result in a favourable decree for the plaintiff. This provision specifically
applies to the initial hearing and not subsequent ones, as established
in the legal precedent of Sangram Singh v. Election Tribunal.
Even when granting an ex-parte order, the court bears the responsibility
of ensuring justice prevails, even in the defendant’s absence. In the case
of Maya Devi v. Lalta Prasad, the Supreme Court ruled that it is the
court’s duty to ascertain the validity of statements in the plaintiff’s
submission and the appropriateness of the requested reliefs.
This provision for ex-parte orders cannot be applied if there are multiple
defendants in the case and any one of them makes an appearance.
Appearance of Defendant
The regulations pertaining to instances where only the defendant
appears are outlined in Rule 7-11 of Order IX. When the defendant is
present but the plaintiff is not, two scenarios may arise:
 The defendant does not concede to the plaintiff’s claim, either in
whole or in part.
 The defendant concedes to the plaintiff’s claim.
If the defendant does not acknowledge the plaintiff’s claim, the court
will order the dismissal of the suit. However, when the defendant fully
or partially accepts the plaintiff’s claim, the court is authorized to issue
a decree against the defendant based on that admission. For the
remaining aspects of the claim, the suit will be dismissed.
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Dismissing the plaintiff’s suit without affording them a hearing is a

significant matter and should only be employed if the court is convinced
that such dismissal is necessary in the interest of justice, as established
by Beaumont, C.J. in the case of Shamdasani v. Central Bank of
India.
Does the same provision apply in the case of the plaintiff’s non-
appearance due to their demise?
In situations where the plaintiff fails to appear due to their demise, the
court lacks the authority to dismiss the suit. Even if such an order is
issued, it would be considered void, as determined in the case of P.M.M.
Pillayathiri Amma v. K. Lakshi Amma.
Application to Set Aside the Dismissal
After a suit has been dismissed due to the plaintiff’s non-appearance,
there exists a provision for the plaintiff to submit an application aimed
at overturning the dismissal order. Upon the court’s satisfaction with
the presented justification for the non-appearance as a valid reason, the
court holds the authority to annul the dismissal order and establish a
new date for the continuation of the proceedings.
The key factor in assessing the adequacy of the plaintiff’s reason for
non-appearance is whether the plaintiff made genuine efforts to attend
the scheduled hearing. When the plaintiff demonstrates a legitimate
reason to justify their non-appearance, it becomes obligatory for the
court to reinstate the suit. In cases where an adequate reason is absent,
the court has the discretion to either rescind the dismissal or uphold it,
as ruled in the case of P.K.P.R.M. Raman Chettyar v. K.A.P.
Arunachalam Chettyar. The determination of sufficient cause is
contingent upon the specifics of each individual case.
In the instance of Chhotalal v. Ambala Hargovan, the Bombay High
Court observed that if a party arrives after the stipulated time and
discovers their suit has been dismissed due to their non-appearance,
they are entitled to have their suit or application reinstated upon
payment of associated costs.
When Summon is Not Served
Rules 2 to 5 of Order IX delineate the provisions for scenarios where the
summons has not been served to the defendant. A fundamental
principle of procedural law is that every party must be afforded a fair
chance to present their case. Providing notice of legal proceedings
against them is essential to achieve this. Therefore, serving a summons
to the defendant is obligatory and serves as a condition precedent.
When a summons has not been served, or the defendant has not been
given adequate time for the proper appearance of their case, a decree
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cannot be issued against them, as established in the case of Begum

Para v. Luiza Matilda Fernandes.
Rule 2 of Order IX also stipulates that if the plaintiff fails to cover
the costs for serving summons to the defendant, the suit may face
dismissal. However, such dismissal cannot take place if the defendant
personally appears on the day of the hearing or through legal
representation. In the event of such a dismissal, the plaintiff retains the
right to file a fresh suit. Additionally, if the court deems there is a valid
reason behind the failure to pay costs, it has the discretion to overturn
the dismissal order.
When the summons is returned unserved, and the plaintiff fails to apply
for a fresh summons within 7 days of the return, as indicated by the
defendant or any of the defendants, the court holds the authority to
dismiss the suit against the defendant(s).
If it is not proven that the summons was not duly served to the
defendant, the court can direct the issuance of a fresh summon for
proper service. In situations where service of the summons is proven
but the time allocated in the summon is insufficient for the defendant
to respond on the appointed day, the court can postpone the hearing to
a later date and provide notice to the defendant.
Ex-Parte Decree
In situations where the defendant is noticeably absent on the scheduled
hearing day as outlined in the summons, an ex-parte decree can be
rendered. This type of decree is issued when the plaintiff appears before
the court on the designated day, but the defendant fails to appear
despite proper summons being served. In such instances, the court is
empowered to conduct the proceedings ex-parte and deliver a decree in
favour of the plaintiff in the defendant’s non-appearance.
It’s important to understand that an ex-parte decree is legally valid and
not inherently null and void. However, it can be subject to challenge or
deemed voidable unless it is invalidated based on legitimate and legal
grounds. An ex-parte decree holds enforceable weight, similar to a
decree reached through mutual representation, and it carries the same
legal force as a valid decree. This was established in the case
of Panduranga Ramchandra v. Shantibai Ramchandra.
Conclusion
The concept of appearance and non-appearance parties is pivotal in the
Code of Civil Procedure framework. Parties are required to actively
participate by appearing in court proceedings or being represented by
their legal representatives. This ensures a fair opportunity to present
their case, respond to arguments, and engage in the legal process.
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Non-appearance, when a party fails to attend proceedings, can lead to

consequences such as ex-parte orders or decrees, where decisions are
made in the absent party’s absence. However, the CPC also provides
avenues for parties to seek relief if they have valid reasons for non-
appearance, emphasizing the importance of fairness and due process.

Execution of Decree in Civil Court

Execution is the last stage of any civil litigation. There are three stages
in litigation:
1. Institution of litigation.
2. Adjudication of litigation.
3. Implementation of litigation.

Implementation of litigation is also known as execution. A decree will

come into existence where the civil litigation has been instituted with
the presentment of the plaint. The decree means operation or
conclusiveness of judgment. Implementation of a decree will be done
only when parties have filed an application in that regard.

A decree or order will be executed by the court as facilitative and not an

obligation. If a party is not approaching the court, then the court has
no obligation to implement it suo motu. A decree will be executed by the
court which has passed the judgment. In exceptional circumstances,
the judgment will be implemented by another court which is having
competency in that regard.

Execution is the medium by which a decree-holder compels the

judgment-debtor to carry out the mandate of the decree or order as the
case may be. It enables the decree-holder to recover the fruits of the
judgment.

Execution
The term execution has not been defined in the code. The expression
execution means enforcement or implementation or giving an effect to
the order or judgment passed by the court of justice. Simply execution
means the process for enforcing or giving effect to the judgment of the
court.

Execution is the enforcement of decrees and orders by the process of

the court, so as to enable the decree-holder to realize the fruits of the
decree. The execution is complete when the judgment-creditor or
decree-holder gets money or other thing awarded to him by the
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judgment, decree or order.

Supreme Court in Ghanshyam Das v. Anant Kumar Sinha dealing

with provision of the code relating to execution of decree and orders,
stated:
so far as the question of executability of a decree is concerned, the Civil
Procedure Code contains elaborate and exhaustive provisions for
dealing with it in all aspects. The numerous rules of Order 21 of the
code take care of different situations providing effective remedies not
only to judgment-debtors and decree-holders but also to claimant
objectors, as the case may be. In an exceptional case, where provisions
are rendered incapable of giving relief to an aggrieved party inadequate
measures and appropriate time, the answer is a regular suit in the civil
court.
The remedy under the Civil Procedure Code is of superior judicial
quality then what is generally available under other statutes and the
judge, being entrusted exclusively with administration of justice, is
expected to do better[5]. The Law Commission in its 14th (1958), 27th
(1964) & 44th (1973) reports also considered the difficulties realised by
the decree-holders after obtaining decree from a competent court of law.
It also went into the reasons for unsatisfactory state of affairs and made
several recommendations and suggestions.

Courts Which May Execute Decrees

Section 38 of the Code says that 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 defines the phrase courts which passed a decree while
Sections 39 to 45 provide for the transfer for the execution of a decree
by the court which passed the decree to another court, lay down
conditions for such transfer and also deal with the powers of executing
court. Therefore, all this needs to be read together.

A decree may be execute by the court which passed it or by the court to

which it is sent for execution[6]. A court which has neither passed a
decree, nor a decree is transferred for execution, cannot execute it[7].
Where the court of first instance has ceased to exist or ceased to have
jurisdiction to execute the decree, the decree can be executed by court
which at the time of making the execution application would have
jurisdiction in the matter.

Transfer of Decree for Execution: Sections 39-42; Order 21 Rule 3-9 As

stated above, a decree may be executed either by the court which passed
it or by the court to which it is sent for execution. Section 39 provides
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for the transfer of a decree by the court which has passed it and lays
down the conditions therefor.
As a general rule, the court which passed the decree is primarily the
court to execute it, but such court may send the decree for execution to
another court either suo motu (of its own motion) or on the application
of the decree-holder if any of the following grounds exists:
i. The judgment-debtor actually and voluntarily resides or carries on
business, or personally works for gain, within the local limits of
the jurisdiction of such court; or
ii. The judgment-debtor does not have property sufficient to satisfy
the decree within the local limits of the jurisdiction of the court
which passed the decree but has property within the local limits
of the jurisdiction of such other court; or
iii. The decree directs the sale or delivery of immovable property
situate outside the local limits of the jurisdiction of such other
court; or
iv. The court which passed the decree considers it necessary for any
other reason to be recorded in writing that the decree should be
executed by such other court.
The provisions of Section 39 are, however, not mandatory and the court
has discretion in the matter which will be judicially exercised by it[9].
The decree-holder has no vested or substantive right to get the decree
transferred to another court. The right of the decree-holder is to make
an application for transfer which is merely a procedural right.
General Principles
With regard to the powers and duties of executing courts, the following
fundamental principles should be borne in mind:
1. As a general rule, territorial jurisdiction is a condition precedent
to a court executing a decree, and, therefore, no court can execute
a decree in respect of property situate entirely outside its local
jurisdiction.

2. An executing court cannot go behind the decree. It must take the

decree as it stands and execute it according to its terms. It has no
power to vary or modify the terms. It has no power to question its
legality or correctness. This is based on the principle that a
proceeding to enforce a judgment is collateral to the judgment and
therefore, no inquiry into its regularity or correctness can be
permitted in such a proceeding.

3. In case of inherent lack of jurisdiction, the decree passed by the

court is a nullity and its invalidity could be set up wherever and
whenever it is sought to be enforced, whether in execution or in
collateral proceedings. In such a case, there is no question of going
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behind the decree, for really in the eye of the law there is no decree
at all.

4. Inherent lack of jurisdiction, however, must appear on the face of

the Record. Hence, if the decree on the face of it discloses some
material on the basis of which the court could have passed the
decree, it would be valid. In such a case, the executing court must
accept and execute the decree as it stands and cannot go behind
it. To allow the executing court to go behind that limit would be to
exalt it to the status of a superior court sitting in appeal over the
decision of the court which has passed the decree.

5. A decree which is otherwise valid and executable, does not become

inexecutable on the death of the decree-holder or of the judgment-
debtor and can be executed against his legal representatives.

6. When the terms of a decree are vague or ambiguous, an executing

court can construe the decree to ascertain its precise meaning.
For this purpose, the executing court may refer not only to the
judgment, but also the pleadings of the case.

7. An executing court can go into the question of the executability or

otherwise of the decree and consider whether, by any subsequent
developments, the decree has ceased to be executable according
to its terms.

8. A decree which becomes inexecutable by operation of law, may

become executable by virtue of a subsequent amendment in the
statute and can be executed after such amendment.

9. The executing court has power to mould the relief granted to the
plaintiff in accordance with the changed circumstances.

10. The court executing the decree transferred to it has the same
powers in executing such decree as if it had been passed by itself.

Who may apply for the execution? Rule 10

The following persons may file an application for execution:
i. Decree-holder.
ii. Legal representative of the decree-holder, if the decree-holder is
dead.
iii. Representative of the decree-holder.
iv. Any person claiming under the decree-holder.
 Page 98 of 316

v. Transferee of the decree-holder, if the following conditions are

satisfied:
a. The decree must have been transferred by an assignment in
writing or by operation of law;
b. The application for execution must have been made to the
court which passed the decree.
c. Notice and opportunity of hearing must have been given to
the transferor and the judgement-debtor in case of
assignment by the transfer.
The object of issuing a notice is to determine once and for
all and in the presence of the parties concerned the validity
or otherwise of the assignment or transfer.

vi. One or more of the joint decree-holders, provided the following

conditions are fulfilled:
a. The decree should not have imposed any condition to the
contrary;
b. The application must have been made for the execution of
the whole decree and;
c. The application must have been for the benefit of all the joint
decree-holders.
Against whom the execution can be made?
Execution may be taken out against the following persons:
i. Judgement-debtor.
ii. Legal representative of the judgement-debtor, if the judgement-
debtor is dead.
iii. Representative of or the person claiming under the judgement-
debtor.
iv. Surety of the judgement-debtor.

An application for the execution of the decree may be filed in the court
which passed the decree or in the court to which the decree has been
transferred for the execution.

Limitation: The limitation period for the execution of a decree is 12 years

from the date of the decree. The period of limitation for the execution of
a decree for mandatory injunction is 3 years from the date of the decree.

Execution Application and Res Judicata: After the Amendment Act of

1976 issue of Res Judicata is now specifically dealt with as Section 11
with Explanation VII specifically provides that the provisions of res
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judicata will apply to execution proceedings also.

Mode of Execution
The code lays down various mode of execution. After the decree-holder
files an application for execution of decree, the executing court can
enforce execution.
A decree may be enforced by delivery of any property specified in the
decree, by attachment and sale or by sale without attachment of the
property, or by arrest and detention, or by appointing a receiver, or by
effecting partition, or any such manner which the nature of relief
requires.
Arrest and Detention
One of the modes of executing a decree is arrest and detention of the
judgment-debtor in civil imprisonment. Where the decree is for payment
of money, it can be executed by arrest and detention of the judgment-
debtor.
A judgment-debtor may be arrested at any time on any day in the
execution of a decree. After this arrest, he must be brought before the
court as soon as practicable. For the purpose of making arrest, no
dwelling house may be entered after sunset or before sunrise. Further,
no outer door of a dwelling house may be broken open unless such
dwelling house is in the occupancy of the judgment-debtor and he
refuses or prevents access thereto.
No order of detention of the judgment-debtor shall be made where the
decretal amount does not exceed Rs.2000. Where the judgment-debtor
pays the decretal amount and costs of arrest to the officer, he should be
released once. Women, judicial officers, the parties, their pleaders,
member of legislative bodies, a judgment-debtor where the decretal
amount does not exceed Rs 2,000, this person cannot be arrested and
detained in civil imprisonment.
A decree for money cannot be executed by arrest and detention where
the judgment-debtor is a woman, or a minor, or a legal representative
of a deceased judgment-debtor.
Attachment of Property
A decree may also be executed on the application of the decree-holder
by attachment and sale the only sale without attachment of property.
The code recognizes the right of the decree-holder to attach the property
of the judgment debtor in execution proceeding and lays down the
procedure to effect attachment. Sections 60 to 64 and Rules 41 to 57 of
Order 21 deals with the subject of attachment of property.
 Page 100 of 316

The code enumerates properties which are liable to be attached and sold
in execution of a decree. It also specifies properties which are not liable
to be attached or sold. It also prescribes the procedure where the same
property is attached in execution of decrees by more than one court.
The code also declares that a private alienation of property after
attachment is void.
Section 60(1) declares what properties are liable to attachment and sale
in execution of a decree, and what properties are exempt therefrom. All
saleable property (movable or immovable) belonging to the judgment-
debtor or over which or the portion of which he has a disposing power
which he may exercise for his own benefit may be attached and sold in
execution of a decree against him.
Section 61 deals where the judgment-debtor is an agriculturalist. It
states that judgment-debtor is an agriculturalist. Any agriculturalist
produce is subject matter of agriculturalist. The quantum of attachment
of agricultural product depends upon the quantum of decretal amount.
Section 63 where two different courts have attached the same property
through different decree, then it will be looked, that which court is
superior. The value of the property will determine whether further
attachment can be done or not.
Percept
Section 46 “precept” means a command, an order, a writ or a warrant.
A percept is an order or direction given by court which passed the decree
to a court which would be competent to execute the decree to attach
any property belonging to the judgment-debtor.

Section 46 provides that court which passed a decree may, upon an

application by the decree-holder, issue a percept to that court within
whose jurisdiction the property of the judgment-debtor is lying to attach
any property specified in the percept.

A percept seeks to prevent alienation of property of the judgment-debtor

not located within the jurisdiction of the court which passed the decree
so that interest of the decree-holder is safeguarded and protected.

It is the interim attachment of the property which lies outside the

jurisdiction of the court which has passed the order. To protect the
interest of the decree holder on his application will issue percept to the
court in whose jurisdiction property is situated to attach the property
of the judgment-debtor. The interim order for attachment is valid for the
period of only 2 months.
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Garnishee Order
It is the proceeding by which the decree-holder seeks to reach money or
property of the judgment-debtor in the hands of a third party (debtor of
judgment-debtor).

Suppose A owes Rs 1000 to B and B owes Rs 1000 to c. By a garnishee

order, the court may require A not to pay money owed by him to B, but
instead to pay C, since B owes the said amount to C, who has obtained
the order.
Garnishee order is an order passed by a court ordering a garnishee not
to pay money to the judgment-debtor because the latter is indebted to
the garnisher.
Sale of the Property
A decree may be executed by attachment and sale or sale without
attachment of any property. Section 65 to 73 and Rules 64 to 94 of
Order 21 deals with the subject relating to the sale of movable and
immovable property.

Power of court (Rule64-65): Rule 64: a court may sell the property,
which he has taken into custody under an attachment under Order 60.
Rule 65: appointment of officer by the court who will be charged to sell
the property. Officer will be the representative of the court and will sell
the property for execution of decree.

Proclamation of sale (Rule66-67): It is a kind of order or declaration. It

operates as a public notice regarding the sale. It's said that people can
participate in auction and sale. The proclamation can be in writing or
by customary mode.
Contents of the proclamation:
1. Time and place of sale
2. Property to be sold
3. Revenue, if any, assessed upon the property;
4. Encumbrance, if any, to which property is liable;
5. Amount to be recovered;
6. Details relating to property, such as title deed, length etc.
Time of sale: Rule 68 No sale without the consent in writing of the
judgment-debtor can take place before fifteen days in case of immovable
property and before 7 days in case of movable property from the date of
proclamation in the courthouse. A sell can be conducted immediately if
the property is of perishable nature.
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Adjournment of sale: Rule69 If the judgment-debtor after the issue of

proclamation and before sell has paid the amount or has partly
promised to pay on the given date before completion of public order, if
there is any justified reason, in those circumstances, court has
discretionary power to postpone the sell. If it has been postponed for a
period of 30 days, the fresh proclamation has to be issued and again
the process of Rule 67, 68 and 69 will follow. Sell cannot be postponed
where judgment-debtor dies before the date of sell or after the issue of
proclamation, or on the date of the auction.

Restriction to bid (Rule72-73): A decree-holder cannot, without the

express permission of the court, purchase the property sold in execution
of his own decree.
A mortgagee of immovable property cannot, without the leave of the
court, purchase the property sold in execution of the decree on the
mortgage.

Any officer or other person having any duty to perform in connection

with the execution sale cannot either directly or indirectly, acquire or
any attempt to acquire any interest in the property sold in execution.

Sale of movable property (Rule78-78): It relates to the sale of

agricultural produce and growing crops. Rule 76 covers negotiable
instruments and shares. Sale of movable property should be held by
public auction. A sale of the movable property will not be said aside on
the ground of irregularity in publishing or conducting the sale (Rule 78).

Sale of immovable property (Rule82-94): Rule 83 enables the executing

court to postpone sale to enable the judgment-debtor to raise decretal
dues by private alienation.
Payment of purchase money by auction-purchaser (Rule84-85): Rule 86
talks about cases of default by auction-purchaser in making requisite
payment and resale of the property. Rule 89-91 and 93 deals with
setting aside sale and effect thereof. Rules 92-94 provide confirmation
of sale and issuance of sale- certificate. Section 65 declares the effect of
sale.
Stay of Execution
Provisions for stay of execution of a decree are made in Rule 26 of Order
XI. This rule lays down that the executing court shall, on sufficient
cause being shown and on the judgement-debtor furnishing security or
fulfilling such conditions, as may be imposed on him, stay execution of
decree for a reasonable time to enable the judgment-debtor to apply to
 Page 103 of 316

the court which has passed the decree or to the appellate court for an
order to stay execution.

The power to stay is not similar between the court who passed it and to
the court the decree is transferred for execution. The transferee court
can only stay the execution of decree for a reasonable time to enable the
judgement-debtor to apply to the transferor court or to the appellate
court to grant stay against the execution but the transferor court can
grant the absolute stay against the execution. A transferee court cannot
invoke inherent powers to grant stay.

There is distinction between staying of an order and quashing of an

order. Quashing of an order means that no such order had ever been
passed and there is restoration of position as it stood prior to the
passing of the order. Stay of order, however, means that the order is
very much there, but its operation is stayed.

Stay of Execution of Pending Suit: Rule 29

Rule 29 provides for stay of execution pending suit between the decree-
holder and the judgment debtor. It enacts that where a suit by the
judgment-debtor is pending in a court against the decree holder such
court may, on the judgment debtor furnishing security or otherwise as
it thinks fit, stay execution of the decree until the disposal of such suit.

The underlying object of this provision is twofold, (i) to enable the

judgment-debtor and the decree holder to adjust their claims against
each other; and (ii) to prevent multiplicity of execution proceedings.

For this rule to apply, there must be two simultaneous proceedings

in one and the same court:
1. A proceeding in execution of the decree at the instance of the
decree holder against the judgment-debtor; and
2. a suit at the instance of the judgment debtor against the decree-
holder.
For the application of this rule, it is not enough that there is a suit
pending by the judgment-debtor. Such suit must be against the decree-
holder in such court. The words "such court" are important and would
mean that the suit must be pending in the same court."
The provisions of Rule 29 are not peremptory but discretionary. The
discretion, however, must be exercised judicially and in the interests of
justice and not mechanically and as a matter of course. No hard and
fast rule can be laid down in what cases stay would be granted or
refused. This rule is based on the principle that a judgment-debtor may
 Page 104 of 316

not be harassed if he has a substantial claim against the decree-holder

which is pending for the decision of the court executing the decree. If
the court is of the view that there is some substance in the claim, it may
order for the stay of execution filed by the defendant in that case but
not otherwise.

While exercising the discretion conferred under Rule 29, the court
should duly consider that a party who has obtained a lawful decree is
not deprived of the fruits of that decree except for good and cogent
reasons. So long as the decree is not set aside by a competent court, it
stands good and effective and it should not be lightly dealt with so as to
deprive the holder of the lawful decree of its fruits.

A party should not be deprived of the fruits of the decree obtained by

him from a competent court merely because a suit has subsequently
been filed for setting aside that decree. A decree passed by a competent
court should be allowed to be executed and unless a strong case is made
out on cogent grounds no stay should be granted.

Even if stay is granted it must be on such terms as to security, etc., so

that the earlier decree is not made ineffective due to lapse of time. The
discretion of the court under Rule 29 has to be exercised with "very
great care" and only in "special cases". It cannot be exercised so as to
allow a party to abuse the process of law.

Prior to the amendment in the Code in 1976, the jurisdiction to stay

execution of a decree vested only in the court which passed the decree.
Hence, when the decree was transferred by the court which passed it to
another court, the transferee court had no power to stay its execution.
By virtue of the amendment of 1976, now the executing court is also
competent to stay not only the decree passed by it, but also a decree
passed by another court transferred to it for execution.

It is submitted that the following observations of Misra, J, in the case

of Judhiatir v. Surendra, lay down correct law on the point:
The fundamental consideration is that the decree has been obtained by
a party and he should not be deprived of the fruits of that decade except
for good reasons. Until that decree is set aside, it stands good and it
should not be lightly dealt with on the off chance that another suit to
set aside the decree might succeed. The decree must be allowed to be
executed, and unless an extraordinary is made out, no stay should be
granted. Even if stay is granted, it must be on suitable terms that the
earlier decree is not stifled.
 Page 105 of 316

The proviso has been added by the Amendment Act of 1976. It enacts
that if the decree is for payment of money and if the court grants stay
without requiring security, it shall record its reasons for doing so.

Order of Injunction and Order of Stay: There is distinction between an

order of injunction and an order of stay. The former is an order against
a person or an individual restraining him from doing something. The
latter is a direction or an order to a court not to do something.
Proceedings taken in contravention of injunction order are not null and
void being without jurisdiction. The effect of non-compliance of an order
of injunction may make the person liable to punishment. Proceedings
in contravention of an order of stay, on the other hand are a nullity and
of no effect whatsoever.

Conclusion
From the above discussion, it clearly appears that execution is the
enforcement of decrees and orders by the process of court, so as to
enable the decree-holder to realize the fruits of the decree. The execution
is complete when the judgment-creditor or decree-holder gets money or
other thing awarded to him by the judgment, decree or order.

Order 21 of the code contain elaborate and exhaustive provision for

execution of decrees and order, take care of the different type of
situation and provide effective remedies not only to the decree-holder
and judgment-debtors but also to the objectors and third parties.

A decree can be executed by various modes which include delivery of

possession, arrest, and detention of the judgment-debtor, attachment
of the property, by sale, by appointment of receiver, partition, cross-
decrees, and cross-claims, payment of money etc.

On exceptional situation, where provisions are rendered ineffective or

incapable of giving relief to an aggrieved party, he can file suit in civil
court.

What are the procedures for filing the suits by or against

government or public officer.
Section 80 of the CPC provides for sending a notice to the government or
a public officer if one wants to institute a suit against the government or
against a public officer in respect of any act purporting to be done by such
public officer in his official capacity until the expiration of two months.
The object of the notice is to give Secretary of State or the public officer an
 Page 106 of 316

opportunity to reconsider his legal position and to make amends or afford

restitution without recourse to a court of law.
This section has been enacted as a measure of public policy and the
underlying purpose is the advancement of justice and securing of public
good by avoidance of unnecessary litigation. Further, it has been
intended to alert the Government or a public officer to negotiate just claims
and to settle them if well-founded without adopting an unreasonable
attitude by inflicting wasteful expenditure on the public exchequer.
The Supreme Court, in the landmark case of Bihari Chowdhary v.
State of Bihar has stated that “The object of the section is the
advancement of justice and the securing of public good by avoidance of
unnecessary litigation.” This project analyses the position of the section
as it stands today and its applicability.
NOTICE UNDER SECTION 80(1)
Suits between individuals require no notice to be given to the defendant
by the plaintiff before the filing of a suit. However as per Section 80 of
the Code of Civil Procedure, 1908, no suit will be instituted against the
Government or against a public officer with regards to any act done by
such an officer in his official capacity, until the expiration of two months
after the notice in writing has been delivered to, or left at the office of:
(a) in the case of a suit against the Central Government, except where
it relates to a railway, a Secretary to that Government;
b) in the case of a suit against the Central Government where it relates
to a railway, the General Manager of that railway;
(c) in the case of a suit against the Government of the State of Jammu
and Kashmir, the Chief Secretary to that Government or any other
officer authorised by that Government in this behalf;
(d) in the case of a suit against any other State Government, a Secretary
to that Government or the Collector of the district;
(e) in the case of a public officer, delivered to him or left at his office,
stating the cause of action, the name, description and place of residence
of the plaintiff and the relief which he claims.
AMENDMENT
The amendment to this section had made some changes in 1976. By the
amending act of 1976 section 80 has been extensively amended. Main
changes consist of in the insertion of subsection (2) and (3) which are
totally new. Sub-section (2) has been inserted to permit the institution
of a suit without notice but subject to the important restriction
prohibiting the grant of ‘relief in the suit whether interim or otherwise’
 Page 107 of 316

except after giving a reasonable opportunity of showing cause in respect

of the relief prayed for in the suit. Subsection (3) prohibits dismissal of
a suit where the notice, has been given but suffers from certain
technical deficiencies.
It is expected from public authorities that they will let the plaintiff know
their stand within the statutory period or in any case if has chooses to
take up litigation. In certain cases, the court may be obliged to draw an
adverse presumption if the notice is not acknowledged or telling the
plaintiff of its stand and if no stand is taken during the trial it may be
considered as an afterthought.
NATURE AND APPLICABILITY
Section 80 enumerates two types of cases
i) suits against the government, and
ii) suits against public officers in respect of acts done or
purporting to be done by such public officers in their
official capacity. Regarding the former, the notice is
required to be given in all cases. Regarding the latter,
notice is necessary only when the suit is in respect of any
act “Purporting to be done” by the public officer in the
discharge of his duty, not in any other cases.
Although it has been said that substantive rights are to be determined
in accordance with the provision of the Constitution, Section 80 of the
Code is not a procedural provision, but a substantive one.
A statutory body may be an instrumentality of the state within the
meaning of Art. 12 of the Constitution, nevertheless, it would not
answer the description of ‘government’ as it is understood in law and in
the context of S. 80.
This section is explicit and mandatory and admits of no implications or
exceptions. The language of this section is imperative and absolutely
debars a court from entertaining a suit instituted without compliance
with its provisions. If the provisions of the section are not complied with,
the plaint must be rejected under O. 7, r. 11(d)
Section 80 is mandatory and a suit filed before the expiry of the period
of two months, which does not necessarily mean 60 days but has to be
calculated month-wise, after the serving of notice as per S. 80(1) is not
maintainable.
LAW COMMISSION OF INDIA
The Law Commission of India did not favor in retaining the provision of
issuing notice under S. 80 before filing a suit by the aggrieved party. It
cited as a reason, inter alia, the hardship involved in a large number of
 Page 108 of 316

cases where immediate relief was needed. The evidence disclosed that
in a large majority of cases, the Government or the public officer made
no use of the opportunity afforded by the section. In most cases, the
notice remained unanswered.
In large number of cases, Government and public officers utilized the
provision as a “technical defence” and in a number of cases, the
objection has been upheld by the Court defeating just claims of the
citizens.
The matter was again considered by the third Law commission in the
twenty-seventh report where it noted that it was unable to find a parallel
provision in any other country governed by the Anglo-Saxon system of
law. It opined that in a democratic country like India there should
ordinarily be no distinction, as is created by Section 80, between the
citizen and the State.
The Joint Committee of Parliament, however, has, in “public interest”,
favored the retention of the issuance of notice under S. 80, after having
considered the reasoning and recommendations of the Law
Commissions.
ESSENTIALS
A notice under S. 80 must contain
1. name, description, and place of residence of the person giving
notice;
2. a statement of the cause of action; and
3. the relief claimed by him.
In considering whether the essential requirements of the section have
been complied with, the Court should ask the following questions:
1. Whether the name, description, and residence of the plaintiff are
given so as to enable the authorities to identify the person giving
the notice?
2. Whether the cause of action and the relief which the plaintiff
claims have been set out with sufficient particulars?
3. Whether such notice in writing has been delivered to or left at the
office of the appropriate authority mentioned in the section? ; and
4. Whether the suit has been instituted after the expiration of two
months after notice has been served, and the plaint contains a
statement that such a notice has been so delivered or left?
 Page 109 of 316

NOTICE WHETHER EMPTY FORMALITY?

The statutory notice served in pursuance of section 80, serves the
objective of providing an opportunity to the government or a public
officer to take the matter in the reconsideration and take an appropriate
decision which is in accordance with law. The notice by itself was not
intended to be an empty formality but it has become one.
The administration is often unresponsive and shows no courtesy even
to intimate the aggrieved party why his claim is not accepted. The
reason behind the enactment of this section was as a measure of public
policy, the purpose was the advancement of justice and securing of the
good of the people by avoiding unnecessary litigation.
Krishna Iyer J. has stated “We like to emphasize that Governments
must be made accountable by Parliamentary social audit for wasteful
litigation expenditure inflicted on the community by inaction. A
statutory notice of the proposed action under S. 80 C.P.C. is intended
to alert the State to negotiate a just settlement or at least have the
courtesy to tell the potential outsider why the claim is being resisted.
Now S. 80 has become a ritual because the administration is often
unresponsive and hardly lives up to the Parliament’s expectation in
continuing s. 80 in the Code despite the Central Law Commission’s
recommendations for its deletion”
The law commission was in fact against the provision of issuing a notice
under section 80, before more than fifty years it has noticed that the
section had inflicted hardship in cases where immediate relief was
needed and in most of the cases the notice remained unanswered.
NOTICE WHETHER MANDATORY?
The provisions in section 80 are express and explicit by themselves and
make the serving of notice mandatory by not admitting any implications
or exceptions. They are imperative in nature and must be strictly
complied with. Notice whether under section 80 is the first step in the
litigation. A court cannot entertain any suit unless the notice is duly
served to the public official under section 80(1). If a section had done
injustice, it is a matter which can be rectified by the legislature and not
by a court.
A plaintiff filed a suit to stop the tax officer from selling the suit property
he purchased from the defendant, who was in arrears of income tax, it
was held by the court that the central government was a necessary party
to the suit. Hence unless a notice has been served under Section 80,
the suit will not be maintainable
 Page 110 of 316

The section is imperative and must undoubtedly be strictly construed;

failure to serve a notice complying with the requirements of the statute
will entail dismissal of the suit.
Construction of Notice: As mentioned before the compliance with
section 80 by serving a notice is mandatory. But it is a procedural
provision, a means by which the court impart justice. A notice under
this section must not be construed in a pedantic manner divorced from
common sense.
Pollock has stated that We must import a little common sense into the
notice of this kind. A statutory notice must be reasonably construed,
keeping in mind the ultimate objective that an interpretation should not
lead to injustice.
Every venial/ (minor, small, pardonable) defect or error not going to
the root of the matter cannot be allowed to defeat justice or to afford an
excuse to the government or a public officer to deny just claim of an
aggrieved party”
The question has to be decided by reading the whole notice in totality
and in a reasonable manner. If the notice on such a reading the court
is satisfied that the information which was necessary to be provided to
the defendants by the plaintiff was in fact provided, inconsequential
defects or error is immaterial and will not vitiate the notice. The
provisions of the section are not intended to be used as booby-traps
against ignorant and illiterate persons.
ACT PURPORTING TO BE IN OFFICIAL CAPACITY
The expression “any act to be done by such public officer in his official
capacity” takes within its sweep acts as also illegal omission. Likewise,
it also covers the past as well as future acts. All acts done or which
could have been done under the color or guise by an officer in the
ordinary course of his official duties would be included therein If the
allegations in the plaint relate to an act which was purported to be done
by a public officer in his official capacity means that the said act must
be such that it could be done ordinarily by a person in the ordinary
course of his official duties. It does not cover acts outside the sphere of
his duties. There must be something in the very nature of the act
complained of which attaches to the official character of the person
doing it.
The test to be applied in these cases is whether the officer can
reasonably claim protection for the acts that he commits or that it was
performed by him purely in his private or individual capacity. In the
case of him claiming protection notice under Section 80 is necessary,
and in case it was performed by him purely in his private or individual
capacity it is not.
 Page 111 of 316

WAIVER OF NOTICE
Although, Under Section 80 of the civil procedure code mandates
issuance of a notice for the institution of notice, it is considered to be a
mere procedural requirement and not a substantive need. This is
because the issuance of a notice does not necessarily affect the
jurisdiction of the court in question. In the case of Dhina
Singh v. Union Of India, It was held that this notice is for the benefit
of the government or the public officer, it is the prerogative of the
government to choose to waive the right . Further more in the
case, Commr. Of taxes v. Golak Nath, it was held by the courts that
the facts of the particular case were vital to see if the right could be
waivered or not.
FORM OF NOTICE
No particular has been prescribed under the code. Due to the above,
there is no need to give it in any particular form to give a notice under
Section 80. The mere satisfaction of all conditions prescribed in this
section is sufficient. Also, in the Amar Nath v. Union of India, it was
held that the notice must merely inform the opposite party about the
nature and the basis of the claim and relief sought.
MODE OF SERVICE
A notice submitted under section 80 of the civil procedure code must be
given to, or left at the office of, the appropriate authority specified. This
was held in the State of A.P V. Gundugola Venkata. IT has been
specified in the code as to who the appropriate authority is under
section 80. As per the section, it must be given to the secretary of the
department or the collector of the district. Under this section, personal
delivery of the notice is not necessary, thus making the words “left at
the office” redundant. The section, however, does not prohibit the
personal delivery of the notice. It further allows the notice to be sent
through registered post.
TECHNICAL DEFECT IN NOTICE: SECTION 80(3)
The Code of Civil Procedure (Amendment) Act, 1976 gives a lot of clarity
on a suit issued against the government if there is a defect in the notice
issued. The Amendment added Subsection 3 to section 80 whereby it
has been explicitly stated that no suit against the government has been
dismissed merely on the ground of defective notice. It also adds that in
such a case the name, residence or the residence of the plaintiff is
specified in the notice, allowing for the identification of the plaintiff in
the notice delivered or left at the authority or public officer and the
cause of action and the relief claimed by the plaintiff had been
substantially indicated therein. This means that if the notice contained
basic details, it would be sufficient.
 Page 112 of 316

The above amendment to the code was made with the intention that
justice is not denied to the aggravated parties on the grounds of
technical defects. Therefore, a notice under section 80 cannot be held
to be invalid and no suit can be dismissed on the grounds that there
has been a certain technical defect or error in the notice delivered or on
the ground that such notice was served in an improper way.
Also, the joint committee stated the following”
“The committee also feels that with a view to seeing that the just claims
of many persons are not defeated on technical grounds, the suit against
the government or the public officer should not be dismissed merely by
reason of any technical defect or error in the notice or any irregularity in
the service of the notice if the name, description and residence of the
plaintiff have been so given in the notice as to enable the appropriate
authority or public officer to identify the person serving the notice, and
the notice had been delivered or left in the appropriate authority, and the
cause of action and the relief claimed has been properly indicated in the
notice.”
In copulating the period of limitation for instituting a suit against the
government or public officer, the period of notice has to be excluded.
LEAVE OF COURT: SECTION 80(2)
Through the amendment made to the civil procedure code in 1976,
subsection 2 was added to section 80. As per this, the aggrieved party
can institute a suit against the government for obtaining urgent or
immediate relief with the leave of the court even without serving the
notice to the government or public office. This subsection, thus, engrafts
an exception to the rule laid down in subsection (1) of section 80 and
allows the plaintiff to obtain urgent relief in grave cases even without
issuing the notice.
The main objective of this is to prevent any failure or miscarriage of
injustice in urgent cases. It is the urgency and immediate relief which
would weigh with the court while dealing with a prayer to dispense with
the requirement of notice and not the merits of the case. Subsection (2)
however, is enacted in such a way that in this type of case, the court
will not have any authority to grant relief, interim or otherwise, unless
a reasonable opportunity has been given to the government to show
cause in respect of the relief prayed for in the suit.
WRIT PETITION
As per Section 80 of the code, it can be stated that a writ petition filed
under article 32 and article 226 of the constitution does not constitute
a suit as per the definition and scope of this section. Hence, prior notice
 Page 113 of 316

to the government or public officer is not necessary before filing a

petition in the Supreme Court or in a high court.
Computation of Suit:
In computing the period of limitation for filing a suit, the period of notice
should be excluded.
Premature Suit:
A suit instituted before the expiry of two months of notice as required
by section 80 of the code is liable to be dismissed only on that ground
Appeal:
An order passed under section 80 is neither a decree nor an appealable
order, and hence, no appeal lies against the order.
Revision:
Under Section 115 of the code, an order given under Section 80 is
revisable as it considered as a “case decided”. If a court subordinate to
the High Court makes an order which is patently illegal and suffers from
jurisdictional error, then it can be rectified by the High Court.
Title of Suit: Section 79:
In any suit filed against the Government, The Government or the
authority against whom the case is filed shall be named as a party in
the following manner
1. In case of a suit by or against the central government, the Union
of India
2. In the case of a suit by or against the state government, the State.
The statement in Plaint:
Even after the expiration of two months, a plaint can be presented
before the court. This must contain a statement which, under section
80 of the code, has a statutory notice which has been delivered or left
as per subsection (1) of section 80. An omission to make such a
statement is fatal, and in its absence, the plaint will be rejected by the
court.
Parties:
Where a suit is filed against a public officer in respect of any act
purporting to be done in his official capacity, the government should be
joined as a party to the suit.

PROCEDURE: RULE 27
In the case where there is a suit filed by or against the Government,
then such a plaint will have to be signed by any authorized person
appointed by the Government. It is also necessary that this person is
well versed with facts of the case. If such a person is authorized by the
government, then he shall be deemed to be a recognized agent of the
Government as per the Civil procedure code. It has also been given in
the code that multiple summons may be issued to a government
pleader.
 Page 114 of 316

There is no need for the state counsel to file a Vakalatnama. Reasonable

time should be granted to the government for filing a written statement.
The courts, in all cases, must assist the Government to arrive at a
settlement in all cases where it is a party. This is considered as one of
the main duties of the court. There are instances where the suit filed
may have a substantial question of law or that it may require the
interpretation of the law or the constitution.
In such cases, the court will need to send a notice to the Attorney
General, if the question is regarding a central law or it will need to send
a notice to the advocate general if the suit deals with state law. This has
been given in Order 27-A of the Code.
OTHER PRIVILEGES
In the case where a suit has been brought up against any public officer,
then it has been dictated by Rule 5-A that the Government must be a
joined party to the suit. An obligation has been bestowed on the courts
by Rule 5-B to assist the government or the public officer in question is
coming to a settlement. Whenever the public servant is the defendant,
then rule 7 ensures that there is a reasonable amount of time given to
the public servant to make a reference to the government. Rule 8-A
protects all those official against whom suits have been filed when they
were discharging their duty or acting in an official capacity.
Section 81 is also considered as an important privilege given to a public
servant. It allows the court to exempt the public servant from appearing
before the court. It can do this only if believes that by making the person
absenting himself from his duty, there is a loss caused to the public. It
has also been stated under section 82 that no execution will be
entertained by any court against any decree passed by the government
is a public officer. The only condition that must be fulfilled for seeking
this is that it must be unsatisfied for three months since the date the
decree was passed.
CONCLUSION
This project has explained what suits against the government and
public officials are. The project starts off by saying what exactly is stated
in Section 80(1) which explains how a suit must be filed. After this, it
was felt that there had to be a special emphasis given to the amendment
and how it changed the whole sections pertinent to the above topic.
There is also a mention about the nature and applicability of such suits
with a mention about the various essentials mentioned under Section
80. This project also tries to answer some of the questions with respect
to this topic such as whether notices in this matter is just a mere
formality or if they are mandatory. As this is with respect to government
 Page 115 of 316

and public officers, this project also speaks about what happens to acts
that are conducted in an official capacity.
After concluding the above topics, this project attempts to elucidate the
various aspects of these types of suits. It speaks about whether rights
granted under this can be waived, the forms in which notices can be
served and also the modes in which these have to be served. As Justice
Sen stated, “laws can survive only on a technicality.” Keeping in view
with it, this project speaks about some of the technicality of law, like
what happens when there is a technical defection in the notice, or about
the exclusion period of the notice or when there is a need for a judgment
on an urgent basis.
Additionally, this project talks about the procedure when writs are files,
or when there is a premature suit, on appeal or if there is a revision. In
conclusion, this project speaks about procedure given under rule 27
and other privileges given to parties.

when can the court appoint a receiver ? state the powers and duties
of a receiver.
(1) Appointment of receivers.--
(1) Where it appears to the Court to be just and convenient the
Court may by order--
(a) appoint a receiver of any property, whether before or after
decree;
(b) remove any person from the possession or custody of the
property;
(c) commit the same to the possession, custody or
management of the receiver, and
(d) confer upon the receiver all such powers, as to bringing
and defending suits and for the realization, management,
protection, preservation and improvement of the property,
the collection of the rents and profits thereof, the application
and disposal of such rents and profits, and the execution of
documents as the owner himself has, or such of those
powers as the Court thinks fit.
(2) Nothing in this rule shall authorise the Court to remove from
the possession or custody of property any person whom any party
to the suit has not a present right so to remove.
This rule authorises a Court to appoint a receiver whenever it appears
to be just and convenient. The matter is left to the discretion of the
 Page 116 of 316

Court such discretion must be, however, exercised not arbitrarily but
judicially.
A receiver can only be appointed when just and convenient and when
there is a prima facie case in favour of the plaintiff calling for taking an
urgent measure.
It does not necessarily holds that an application to be made in this
regard but the Court can also appoint a receiver suo motu and also can
do so on the application of third party who is interested in preservation
of the property.
In case of Krishna Kumar v. Grindlays Bank, AIR 1991 SC 889: (1991)
1 Cal LT 13 (SC): JT 1990 (3) SC 58: MANU/SC/0200/1991 : (1990) 3
SCC 669: (1990) 2 SCR 961: 1990
(2) UJ 128 (SC), it was observed, following principles must be borne in
mind before a receiver is appointed by the Court:
(a) that the appointment is on the discretion of the Court;
(b) the basic object of this appointment is the preservation of
property in dispute pending judicial determination of rights of
party to it;
(c) a receiver should not be appointed unless the plaintiff prima
facie proves that he has a very excellent chance of succeeding in
the suit; and
(d) since appointment of receiver deprives the opposite party from
the possession of property before the final judgment is
pronounced, it should only be granted for preservation of manifest
injury or wrong.
In Parmanand Patel v. Sudha A. Chowgule, MANU/SC/0377/2009 :
AIR 2009 SC 1593, it was observed that a receiver having regard to the
provisions contained in Order XL, rule 1 of the Code of Civil Procedure,
is appointed only when it is found to be just and convenient to do so.
Appointment of a receiver pending suit is a matter which is within the
discretionary jurisdiction of the Court. Ordinarily the Court would not
appoint a receiver save and except on a prima facie finding that the
plaintiff has an excellent chance of success in the suit. It is also for the
plaintiff not only to show a case of adverse and conflict claims of
property but also emergency, danger or loss demanding immediate
action. Element of danger is an important consideration. Ordinarily, a
receiver would not be appointed unless a case has been made out which
may deprive the defendant of a de facto possession. For the said
purpose, conduct of the parties would also be relevant.
 Page 117 of 316

Again in case of H.S. Mills Co. v. M.W.

Pardhan, MANU/SC/0269/1966 : AIR 1966 SC 1707: (1996) 36 Comp
Cas 426 (SC): (1966) MANU/SC/0269/1966 : 60 ITR 508 (SC): (1966) 3
SCR 948, it has held by the Supreme Court that where a receiver is
appointed, clothed with all powers under clause 1(d) for the realisation
of debts due from a company, he becomes a creditor of the company
and can maintain proceedings for the winding-up of the company for
the realisation of debts, though it may not be ordinary procedure for
realisation of debts."
No hard and fast rule can be laid down for the Court to exercise power
under this rule. This power (under the rules) depends upon facts and
circumstances of each cases. A Court may appoint a receiver not as a
matter of course/procedure but as a matter of prudence having regard
to the justice of the situation.
In Issar Das Lulla v. Hari, MANU/TN/0228/1962 : AIR 1962 Mad 458,
it was held that "appointment of the receiver is in the discretion of the
Court. A receiver should not be appointed when there is a bona fide
possession of the property, unless there is some cogent reason
/grounds for interference. The main object and purpose of appointment
of receivers is the preservation of the subject-matter of the litigation
pending a judicial determination of the rights of the parties thereto."
Appointment without application.--
According to the provision of Order XL, rule 1 of the Code of Civil
Procedure, 1908, a Court can appoint a receiver in case where there is
no application from the party concerned but if it is satisfied that it be
just and convenient to do so. It is not necessary that the appointment
only should be made when there is an application for that."
In Hiralal Patni v. Loonkaran Sethiya, MANU/SC/0015/1961 : AIR
1962 SC 21 on the issue of "position of a receiver" the Court held that
"a receiver is an officer of the Court. He is also a public servant within
the meaning of section 2, clause (17) of the Code of Civil Procedure,
1908."
Duration: In cases of Hiralal Patni v. Loonkaran
Sethiya, MANU/SC/0015/1961 : AIR 1962 SC 21 (27): (1962) 1 SCR
868 and Hindustan Petroleum Corp. Ltd. v. Ram
Chandra, MANU/SC/0087/1994 : AIR 1994 SC 478, the Supreme
Court has summarised the law regarding the terms of the office of
receivership. The Court held that:
(a) if a receiver is appointed in a suit until judgment, the
appointment is brought to an end by the judgment, in the action;
 Page 118 of 316

(b) if the receiver is appointed in a suit without his tenure being

expressly defined, he will continue to be receiver till he is
discharged;
(c) although after the final disposal of the suit as between the
parries to the litigation, the receiver's functions are terminated, he
would still be answerable to the Court as its officer till he is finally
discharged;
(d) the Court has ample power(s) to continue the receiver even
after the final decree if the exigencies of the case so require.
A receiver cannot be appointed in execution of a decree in respect of a
compulsory deposit in a provident fund to the judgment-debtor as held
by the Supreme Court in Union of India v. Heera
Devi, MANU/SC/0003/1952 : AIR 1952 SC 227: (1952) 1 SCR 765.
in this case the decree-holder, a lady, had obtained a money decree
against one Ram Grahit Singh, a retired head clerk in the dead letter
office. In 1949, a receiver was appointed for collecting the monies
standing to the credit of the judgment-debtor in the Provident Fund with
the postal authorities. The Union of India intervened for setting aside
the order of appointment of receiver and the Hon'ble Supreme Court
allowing the appeal of Union of India held that no receiver can be
appointed and such a deposit cannot be assigned or charged and is not
liable to any attachment.
It has been held in several cases that a receiver can be appointed even
where the mortgage is a simple mortgage, but the Hon'ble High Courts
of Allahabad and Patna have taken a contrary view.
The view in Charan Nandi Chaudhary v. Ranjit
Prasad, MANU/BH/0039/1932 : AIR 1932 Pat 360, appears to be
correct in view of sub-rule (2) of rule 1 of Order XL of the Code of Civil
Procedure, 1908 which lays down that "nothing in this rule shall
authorise the Court to remove............". In the case of simple mortgage
the plaintiff gets a decree for sale and he has no present right to be in
possession of the property and, therefore, the defendant's possession
cannot be taken away by the appointment of receiver.
Enforcement of receiver's duties.--
Order XL, rule 4 read as: Where a receiver--
(a) fails to submit his accounts at such periods and in such form
as the Court directs, or
(b) fails to pay the amount due from him as the Court directs;
 Page 119 of 316

(c) occasions loss to the property by his wilful defaults or gross

negligence.
The Court may direct his property to be attached and may sell such
property, and may apply the proceeds to make good any amount found
to be due from him or any loss occasioned by him, and shall pay the
balance (if any) to the receiver.
So, above stated provisions are clear that if there is any default on the
part of receiver in performance of his duties, Courts are at liberty to
proceed against him according to the laws.
Appointment of Commissions (Sections 75-78, Order XXVI)
Q. Write short note on 'Appointment of Commissions'.
Sections 75-78 and Order XXVI of the Code of Civil Procedure, 1908 are
the provisions for appointment of commissions. Clauses (e) to (g)
appended to section 75 have been added by the amending Act of 1978.
It was felt that the Court should be authorised to issue commissions for
technical and expert investigation. The power of the Court to issue
commission is discretionary in nature and not right of matter. The Court
has also been empowered to appoint commissions to hold sales
otherwise than in execution, as also is issue commissions for the
performance of ministerial act.
Section 75 reads as: Subject to such conditions as may be prescribed,
the Court may issue a commission--
(a) to examine any person;
(b) to make or local investigation;
(c) to examine a adjust accounts; or
(d) to make a partition;
(e) to hold a scientific, technical or expert investigation;
(f) to conduct sale of property which is subject to speedy and
natural decay and which is in the custody of the Court pending
the determination of the suit; and
(g) to perform any ministerial act.
While Order XXVI, rule 1 deals with the cases in which the Court may
issue commission to examine witnesses. It provides that any Court in
any suit issue a commission for the examination on interrogatories or
otherwise of any person resident within the local limits of its jurisdiction
 Page 120 of 316

who is exempted under this Code of Civil Procedure from attending the
Court or who is due to sickness or infirming unable to attend it:
Provided that a commission for examination on interrogatories
shall not be issued unless the Court, for reasons to be recorded,
thinks it necessary so to do.
In R. Ramakrishna Reddy v. M. Kamala Devi, MANU/AP/0425/2004 :
AIR 2004 AP 484, the Commissioner is appointed by the Trial Court
only to propose a scheme of partition in terms of the preliminary decree.
On the proposal made by the Commissioner, the Court would either
draw lots or would itself allot the shares to the parties. Thus, it is held
that it does not mean that the proposal made by the Commissioner
would be binding on the parties. Since the order under Revision only
directs the Commissioner to propose a scheme for partition of the
properties covered by the preliminary decree, no prejudice can be said
to have been caused to the revision petitioner by that order.
Section 76 is a unique provision where the Code of Civil Procedure has
provided for issuance of commission to another Court in warranting
circumstances. It reads as:
(1) A commission for examination of any person may be issued to
any Court (not being a High Court) situated in a State other than
the State in which the Court of issue situated and having
jurisdiction in the place in the person to be examined resides.
(2) Enemy Court receiving a commission for the examination of
any person under sub-section (1) shall examine him to be
examined pursuant thereto, and the commission(s), when it has
been duly executed, shall be returned together with the evidence
taken under it to the Court from which it was issued, unless the
order for issuing the commission has otherwise directed, in which
case the commission shall be returned in terms of such order.
Again, in section 78 where the execution of commissions issued by
Foreign Courts is followed.
Rule 4 of Order XXVI of the Code of Civil Procedure further lays down
that any Court may in any suit issue a commission for the examination
on interrogatories or otherwise of:
(a) any person resident beyond the local limits of its jurisdiction;
(b) any person who is about to leave such limits before the date on
which he is required to be examined; and
 Page 121 of 316

(c) any person in the service of the Government who cannot in the
opinion of the Court attend without detriment to the public
services.
In case of Filmistan (Pvt.) Ltd., Bombay v.
Bhagwandas, MANU/SC/0019/1970 : AIR 1971 SC 61: (1970) 3 SCC
258, on the provision or Order XXVI, the Supreme Court observed that:
"This rule provides for the examination on commission of any
person residing within jurisdiction in certain circumstances. The
basis of this rule is that the evidence of a witness should be given
in public Court and tested by cross-examination. And the issue of
a commission is of discretionary nature in the satisfaction of the
concerned Court."
The provisions under this order do not detract against inherent power
of Supreme Court to appoint commission for making inquiries into the
facts relating to violation of fundamental rights.
Rule 9 of Order XXVI of the Code of Civil Procedure, 1908 deals with the
commission to make local investigation. It provides in general that in
any suit in which the Court deems a local investigation to be requisite
or proper for the purpose of elucidating any matter in dispute, or of
ascertaining the market value of any property, or the amount of any
mesne profits or damages or annual net profits, the Court may issue a
commission to such person as it thinks fit directing him to make such
investigation and to report thereon to the Court.
Rule 5 of Order XXVI is a provision where a commission or request to
examine a witness could be made who is not within the local limits of
India.
Rule 10 is about the procedure and reports and depositions of the
commission, which are to be used in evidence.
While rule 10A is for the commissions for scientific investigation, rule
10B of Order XXVI deals with the commission for performance of
ministerial act. Rule 10A provides that where any question arising in a
suit involves any scientific investigation which cannot, in opinion of the
Court, be conveniently concluded before the Court, may, if it thinks it
necessary or expedient in the interest of justice so to do, issue a
commission to such person as it thinks fit, directing him to enquire into
such questions and report therein.
In case of T.K. Bose v. Savitri Devi, AIR 1996 SC 2752: 1996 VIAD (SC)
97: (1997) 1 Cal LT 49 (SC): JT 1996 (7) SC 480: (1996) 5 SCALE 574:
(1996) 10 SCC 96: (1996) Supp 4 SCR 17 the Court held that--
 Page 122 of 316

"non-consideration of the report of the special officer, appointed

so, and surveyor appointed with the consent of both the parties,
that too after rejection of the objection filed in respect of the report,
vitiates the ultimate conclusion.
Rule 10B provides for (that) where any question arising in a suit
involves the performance of any ministerial act, which cannot, in
the opinion of the Court, be conveniently performed before the
Court, the Court may, if, for the reasons to be recorded, is of the
opinion that it is necessary or expedient in the interest of justice
so to do, issue a commission to such person as it thinks fit,
directing him to perform that ministerial act and report thereon.
Order XXVI, rule 11 lays that "in any suit in which an examination
or adjustment of accounts is necessary, the Court may issue a
commission to such person as it thinks fit, directing him to make
such adjustment or examination."
But in case of Padma Sen v. State of Uttar
Pradesh, MANU/SC/0065/1960 : AIR 1961 SC 218: 1961 Cr LJ 322:
(1961) 1 SCR 884 the Supreme Court held that "the Code does not make
any provision for the appointment of commissioner who may seize the
account books which are in the possession of the plaintiff on the ground
of the defendant's apprehension that the plaintiff might have tampered
with them. It was further held that the Court's inherent power cannot
be invoked for such purposes."
Appointment of Commissioner under Inherent Powers
A Court has no inherent power under section 151 of the Code of Civil
Procedure, 1908 to appoint a commissioner because inherent powers
do not extend over the substantive rights.

inherent powers of the court.

Introduction
The inherent powers are considered necessary to do the right and undo
the wrong in the course of the administration of justice and to be
regarded as supplementary to specially conferred powers. Inherent
powers have roots in necessity, and they are coextensive with
necessity in order to do complete justice.
 The law relating to inherent powers is contained in Section 148
to Section 153A of the Code of Civil Procedure, 1908
 Page 123 of 316

(CPC) which visualizes the exercise of powers in different

circumstances.

Section 148 of CPC

 This section deals with the enlargement of time.
 It states that where any period is fixed or granted by the Court for
the doing of any act prescribed or allowed by this Code, the Court
may, in its discretion, from time to time, enlarge such period, not
exceeding thirty days in total, even though the period originally
fixed or granted may have expired.
 This power of the court is of discretionary nature and cannot be
claimed as a right.

Section 149 of CPC

 This section deals with the power to make up deficiency of
court-fees.
 It states that where the whole or any part of any fee prescribed for
any document by the law for the time being in force relating to
court-fees has not been paid, the Court may, in its discretion, at
any stage, allow 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 respect of which fee is
payable, shall have the same force and effect as if such fee had
been paid in the first instance.

Section 150 of CPC

 This section deals with the transfer of business.
 It states that save as otherwise provided, where the business of
any Court is transferred to any other Court, the Court to which
the business is so transferred shall have the same powers and
shall perform the same duties as those respectively
conferred and imposed by or under this Code upon the Court
from which the business was so transferred.

Section 151 of CPC

 This section deals with the saving of inherent powers of Court.
 It states that nothing in this Code shall be deemed to limit or
otherwise affect the inherent power of the Court to make such
orders as may be necessary for the ends of justice or to prevent
abuse of the process of the Court.
 This section does not confer any substantive rights on
parties but is meant to get over the difficulties arising from rules
of procedure.
 Page 124 of 316

Section 152 of CPC

 This section deals with the amendment of
judgments, decrees or orders.
 It states that clerical or arithmetical mistakes in judgments,
decrees or orders or errors arising therein from any accidental slip
or omission may at any time be corrected by the Court either
of its own motion or on the application of any of the parties.
 This section is based on two important principles:
o An act of court should not prejudice any party.
o It is the duty of the courts to see that their records are true,
and they represent the correct state of affairs.

Section 153 of CPC

 This section deals with the general power to amend.
 It states that the Court may at any time, and on such terms as to
costs or otherwise as it may think fit, amend any defect or error
in any proceeding in a suit and all necessary
amendments shall be made for the purpose of determining the
real question or issue raised by or depending on such proceeding.

Section 153A of CPC

 This section deals with the power to amend a decree or order
where appeal is summarily dismissed.
 It states that where an Appellate Court dismisses an appeal under
rule 11 of Order XLI, the power of the Court to amend, under
section 152, the decree or order appealed against may be
exercised by the Court which had passed the decree or order in
the first instance, notwithstanding that the dismissal of the appeal
has the effect of confirming the decree or order, as the case may
be, passed by the Court of first instance.

Limitations of the Inherent Powers

 The exercise of inherent powers carries with it certain limitations
such as -
o They can be exercised only in the absence of express
provisions in the code.
o They cannot be exercised in conflict with what has been
expressly provided in the code.
o They can be exercised in exceptional cases.
o While exercising the powers, the court has to follow
the procedure prescribed by the legislature.
o The Courts cannot exercise jurisdiction not vested in them
by law.
 Page 125 of 316

Case Laws
 In Ram Chand v. Kanhayalal (1966), the Supreme Court held
that the inherent powers under Section 151 of CPC can also be
exercised to prevent the abuse of the process of court.
 In case of Mahendra Manilal Nanavati v. Sushila (1965), the
Supreme Court while expressing its view on the nature of inherent
powers of the court, observed that the Code of Civil Procedure is
a special piece of legislation to deal with procedural situations of
proceeding of trials of civil nature. Under the Code itself, some
hidden powers are conformed on the courts according to the
emerging situations during the proceedings and courts can
exercise them in absence of expressed provisions. But where
there are express provisions in the Code, the Courts are barred
from invoking such powers.

Revision:
Introduction
Section 115 of the Code of Civil Procedure, 1908 (CPC) empowers
the High Court to entertain a revision in any case decided by any
subordinate court in certain circumstances. Revision means the action
of revising, especially critical or careful examination or perusal with
a view of correcting or improving.
Section 115 of CPC
This section lays down-
(1) The High Court, in cases arising out of original suits or other
proceedings of the value exceeding five lakhs rupees and the District
Court, in any other cases, including a case arising out of an original suit
or other proceedings instituted before the commencement of the Code
of Civil Procedure ( Orissa Amendment) Act, 2010, may call for the
record of any case which has been decided by any Court subordinate to
the High Court or the District Court, as the case may be, and in
which no appeal lies thereto, and if such subordinate Court appears—
(a) to have exercised a jurisdiction not vested in it by law; or
(b) to have failed to exercise a jurisdiction so vested; or
(c) to have acted in the exercise of its jurisdiction illegally or with
material irregularity, the High Court or the District Court, as the case
may be, may make such order in the case as it thinks fit.
Provided that in respect of cases arising out of original suits or other
proceedings of any valuation decided by the District Court, the High
 Page 126 of 316

Court alone shall be competent to make an order under this

section.
(2) The High Court or the District Court, as the case may be, shall not
under this section, vary or reverse any order, including an order
deciding an issue, made in the course of a suit or other proceedings,
except where the order, if it had been made in favor of the party
applying for revision, would have finally disposed of the suit or other
proceedings.
(3) A revision shall not operate as a stay of suit or other
proceeding before the Court except where such suit or other proceeding
is stayed by the High Court or District Court, as the case may be.
Explanation—In this section, the expression, “any case which has been
decided” includes any order deciding an issue in the course of a suit or
other proceeding.
Object of Revisional Power
 It provides the means to an aggrieved party to obtain rectification
of a non-appealable order.
 It provides for the effective exercise of its superintending and
visitorial power.
 It prevents the subordinate courts from acting arbitrarily,
illegally or irregularly in the exercise of their jurisdiction.
Scope of Revisional Power
 The power given by this section is clearly limited to the keeping
of the subordinate courts within the bounds of their jurisdiction.
 In the exercise of this power, it is not the duty of the High
Court to enter into the merits of the evidence.
 It is not directed against the conclusion of law or fact in which the
question of jurisdiction is not involved.
 A revision also lies where a subordinate court has failed to
exercise jurisdiction vested in it by law.
 The jurisdiction under this section is a discretionary one. It is
limited in its scope and covers only jurisdictional errors.
 The High Court can call for the record of the case suo moto (on
its motion) and revise the same.
 Page 127 of 316

 The High Court is not bound to interfere under this section except
in the aid of justice.
 It applies to cases in which no appeal lies.
Case Laws
 In the case of Pandurang Ramchandra Mandlik v. Maruti
Ramchandra Ghatge (1996), the Supreme Court held that an
erroneous decision on question of law reached by the subordinate
court which has no relation to question of jurisdiction of that
court cannot be corrected by High Court under Section 115
of CPC.
 In the case of Welcome Hotel v. State of A.P (1983), the
Supreme Court held that where a court having jurisdiction
exercises it in an irregular manner due to a mistake of the
parties, there is no ground for interference in revision.
 Page 128 of 316

Once a period of limitation begins to run no subsequent disability

or inability to institute a suit stops it. Discuss
Continuous running of time [Section 9]: Once a period of limitation
starts no subsequent disability or inability can stop it. The applicability
Section 9 is limited to suits and applications only and does not apply to
appeals unless the case fell within any of the exceptions provided in the
Act itself. Section 9 applies when the cause of action or right to move
the Court continues to exist on the date of making the application.
Thus, the time runs, when the cause of action accrues. Thus, once time
has begun to run, no subsequent disability or inability stops it.
Exceptions: Time for limitation runs when the cause of action accrues.
However, certain exceptions were provided in Sections 4 to 8.

(1) Section 4 provides that if the period prescribed expires on a

day when the Court is closed, the application etc., may be
made on the day, the Court reopens.

(2) As per Section 5 condonation of delay is allowed on sufficient

grounds.

(3) Sections 6, 7 & 8 allow extension of time in certain cases of

disability.
A person died on 3rd August, 2016 before a right to institute a suit
accrued, leaving behind a minor son (age of 15 years). What is the
time from where the period of limitation shall be calculated under
the Limitation Act, 1963?
Effect of death on or before the accrual of the right to sue [Section 16]:
In case of death of a person before the right to institute a suit accrues,
the period of limitation shall be computed from the time when there is
a legal representative of the deceased capable of instituting such suit or
making such application.
In the given case, the period of limitation shall be computed from the
time when the minor son attain the age of majority and become
eligible/capable of fling a suit or making such application as required
under the Law.
Computation of period of limitation for an appeal or an application
for leave to appeal. Comment.

The Limitation Act, 1963 makes speci昀椀c provisions for exclusion of

certain time in some cases for computation of the prescribed period.
These provisions are follows:
 Page 129 of 316

(1) In case of any suit, appeal or application, the period of

limitation is to be computed exclusive of the day on which
the time begins to run. [Section 12(1)]

(2) The day on which the judgment complained or was

pronounced and the time requisite for obtaining a copy of
the decree, sentence or order appealed from or sought to be
revised or reviewed shall be excluded. [Section 12(2)]

(3) Time required for obtaining a copy of the judgment on which

the decree or order is founded shall also be excluded.
[Section 12(3)]

(4) Time required for obtaining a copy of the award shall be

excluded. [Section 12(4)]

(5) Time during which the applicant has been prosecuting in

good faith, his application for “leave to sue or appeal as a
pauper is applied for”, shall be excluded. [Section 13]

(6) Civil proceeding relating to the matter in issue had been

initiated in a Court which is unable to entertain it, by lack
of jurisdiction or by any other like cause shall be excluded.
[Section 14]

(7) Exclusion of time in certain other cases [Sections 15 & 16]:

(a) If suit or application for the execution of a decree had been
stayed by an injunction or order then such period of
injunction shall be excluded.

(b) Time required obtaining the sanction/consent of the

Government shall be excluded.

(c) The time during which the defendant has been absent from
India and from the territories outside India but administered
by the Central Government, shall be excluded.

(d) Where the suit or application is a based upon the fraud or

mistake of the defendant or respondent or his agent or in
other cases as mentioned in Section 17, the period of
limitation shall not begin to run until the plaintiff or
applicant has discovered fraud or mistake subject to certain
exceptions.
What is the ‘doctrine of sufficient cause’ for condonation of delay
as provided in section 5 of the Limitation Act, 1963?
 Page 130 of 316

❖ Section 5 of the Limitation Act, 1963 allows the

extension of prescribed period in certain cases on
sufficient cause being shown for the delay. This is
known as doctrine of “sufficient cause”.

❖ Section 5 provides that any appeal or application

(not plaint or suit) 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.

❖ Section 5 applies only to appeals or applications.

The reason for non-applicability of the Section to suits
is that, the period of limitation allowed in most of the
suits extends from 3 to 12 years whereas in appeals
and application it does not exceed 6 months.
Examples of sufficient cause: What is sufficient cause and what is
not may be explained by the following judicial observations:
• Wrong practice of High Court which misled the
appellant or his counsel in not filing the appeal should
be regarded as sufficient cause under Section 5.
• In certain cases, mistake of counsel may be taken into
consideration in condensation of delay, but such
mistake must be bona fide.
• Wrong advice given by advocate can give rise to
sufficient cause in certain cases.
• Mistake of law in establishing or exercising the right
given by law may be considered as sufficient cause.
However, ignorance of law is not excuse, not the
negligence of the party or the legal adviser constitutes
a sufficient cause.
• Imprisonment of the party or serious illness of the
party may be considered for condonation of delay.
• Time taken for obtaining certified copies of the decree
of the judgment necessary to accompany the appeal or
application was considered for condoning the delay.

• Non-availability of the 昀椀le of the case to the State

Counselor Panel Lawyer is no ground for condonation
of inordinate delay.
 Page 131 of 316

• Ailment of father during which period the defendant

was looking after him has been held to be a sufficient
and genuine cause.
The Law of Limitation under the Limitation Act, 1963 bars the
remedy but it does not extinguish the right. Explain in brief.
Barring Remedy Not Right: The Law of limitation is based on equitable
principle that equity helps the diligent and not the indolent. It induces
the claimants to be prompt in claiming the relief.
The law of limitation bars the remedy only after the limitation period
has expired, but it does not extinguish a right on which the suit has to
be based. In all personal actions the right subsists although the remedy
is no longer available. If, therefore, a creditor, whose debt becomes
statute barred, has any means of realizing and enforcing claim by any
method except by a suit, the Limitation Act does not prevent him from
recovering his debt by such means. Thus, if a time barred debt is settled
outside the Court, it is not illegal. If the debtor without being aware of
bar of time pays debt, he cannot sue the creditor to refund the money
paid to him on the ground of recovery being time barred.
Example: Ram owes Shyam a sum of ` 2,00,000. The debt is barred
because of the law of limitation. The Court shall dismiss the suit if 昀椀
led by Shyam for the recovery of the debt after the period of limitation
(i.e. after 3 years). However, if Ram pays Shyam the amount even after
the same has become time barred, the payment would be a valid one.
Every Civil Suit must be instituted before a lowest civil court
competent to try that suit
Provision:
Section 9 of CPC provision the jurisdiction of courts for adjudicating
civil disputes. It empowers courts to adjudicate all civil suits with two
qualifying criteria.

1) The suit must be of a civil nature.

2) The court is either explicitly or implicitly barred from
taking cognizance.
this arises in situations where specific statutes or rules provide for
tribunals or quasi-Judicial bodies under the said statute/rules to
adjudicate claims, and expressly exclude the jurisdiction of civil courts.
The hierarchy of civil courts is enshrined in Section 15 of the CPC,
which states that every civil suit shall be instituted in the court of the
lowest grade competent to try the same. The civil justice system
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hierarchy is usually established through state legislation. For instance,

in Karnataka, the Karnataka Civil Courts Act, 1964 lays down the class
and establishment of civil judges in the State, their territorial and
pecuniary jurisdiction, and the powers of district judges to hear appeals
from the decisions of civil judges. In Delhi, the Delhi District Courts
Establishment (Appointment & Conditions of Service) Rules, 2012
provides for the hierarchy chart.
Introduction:
Section 15 to 20 deals with the place of suing:
One of the most important issues in civil law is to identify the court in
which a suit ought to be instituted. This is decided on the basis of the
jurisdiction granted to every court under the Civil Courts Act. In simple
terms, jurisdiction means authority and competence of a court to
adjudicate disputes instituted before it.One way to classify the
jurisdiction of a court would be thus:

a) territorial,
b) pecuniary and
c) subject matter.
While territorial jurisdiction refers to the limited geographical area
within which a court wields authority, pecuniary jurisdiction relates to
the minimum and maximum monetary valuation of the suit which can
be tried by a particular court. Subject matter jurisdiction relates to the
nature of suits that can be tried by court
Interpretation of Courts
Section 15 states that “Every suit shall be instituted in the Court of the
lowest grade competent to try it.” The key word in this section is
“competent”. “Competent” simply means having jurisdiction. The word
“lowest” makes it clear that competence here relates to the court’s power
to try cases of certain monetary valuation. The language of Section 15
seems to suggest that there is more than one court competent to try a
suit. This is because the object of the Section is to ensure that the suit
is instituted in the Court of the “lowest grade”. Read about the
jurisdiction of courts from different sites
A who resides at Delhi entered into a contract with B at Mumbai for
supply of certain goods at Kolkata where B resides and carries on
business. At the time of entering into contract, it was agreed upon
between A and B that in case of any dispute regarding payment or
delivery of goods arises, the suit will be 昀椀led only in Bangalore
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Court. B failed to make payment of goods. A 昀椀led a suit at

Bangalore for recovery of money. B alleges that Bangalore Court has
no jurisdiction to decide the suit. Is the plea of B maintainable?
As per Section 19 of the Civil Procedure Code, 1908, where a suit is for
compensation for wrong done to the person or to movable property, the
suit may be instituted at the option of the plainti昀昀 in either of the
following Courts.

❖ In jurisdiction of Court where the wrong was

done.

❖ In jurisdiction of Court where the defendant

resides, or carries on business, or personally works for
gain.
Accordingly, the suit filed in the Bangalore Court will be
dismissed on account of jurisdiction.
The suit ought to have been settled in Court of:

❖ Mumbai where the cause of action arisen or

❖ Kolkata where the defendant resides

and carries on business.
Ajeet resides at Bhopal, Baljeet at Indore and Charanjeet at
Lucknow. Ajeet, Baljeet and Charanjeet being together at Kolkata,
Baljeet and Charanjeet make a joint promissory note payable on
demand and deliver it to Ajeet. Where can Ajeet sue Baljeet and
Charanjeet for the amount of the promissory note?
As per Section 20 of the Civil Procedure Code, 1908, subject to provision
of Sections 15 to 19:

❖ Every suit shall be instituted in Court within the local

limits of whose jurisdiction the defendant actually and
voluntarily resides, or carries on business, or personally
works for gain.

❖ If there are more than one defendant suit shall be

instituted in Court within the local limits of whose
jurisdiction any of the defendants, at the time of the
commencement of the suit actually and voluntarily
resides, or carries on business, or personally works for
gain. However, in such case the leave of the Court has to
be taken or the defendants who do not reside, or carry-
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on business, or personally work for gain, acquiesce in

such institution.

❖ Suit can also be instituted where the cause of action,

wholly or in part, arises.
Thus,
❖ Ajeet can 昀椀le that suit at Indore where one of the
defendants, i.e., Baljeet resides. Buthe can do so either
with the consent express or implied, of the other
defendant Charanjeet, or with the prior permission of the
Court.
❖ Ajeet can 昀椀le the suit a Lucknow where one of the
defendants, i.e., Charanjeet resides, but either with the
express or implied consent of Baljeet, or with the prior
permission of the Court.
❖ Ajeet can 昀椀le a suit at Kolkata, where the cause of
action arisen i.e., the place where the joint promissory
note was delivered by Baljeet and Charanjeet to Ajeet.
What is the difference between Set-off and Equitable Set-off?

Set-off Equitable Set-off

Principal of set-off is applied in Principal of Equitable set-off is

case of ascertained sum of applied in case of un-ascertained
money. sum of money.

Claim of set-off need not Claim of Equitable set-

originated from the same
transaction. off must origination from the same
transaction.

Legal set off can be claimed as a Equitable set off cannot be claimed
right by the defendant and the as a right but by court’s
court is bound to adjudicate discretion.
upon the claim.

Court fee must be paid on set off No court fee is required.

amount.
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The amount claimed must not be Principal of equitable set-off may be

time barred. applied even in case of time barred
amounts.

What is the difference between Legal set-off and

Equitable Set-off?

Legal set-off Equitable Set-off

Sum must be ascertained. Sum need not be ascertained.

Claim need not originate from the Claim must origination from the
same transaction. same transaction.

Legal set off can be claimed as a Equitable set off cannot be claimed
right as a
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by the defendant and the court is right but by court’s discretion.

bound to adjudicate upon the
claim.

Court fee must be paid on set off No court fee is required.

amount.

The amount must not be time The amount may be time barred.
barred. However, if the defendant’s claim is
time barred, he can claim only as
much amount as is given in the
plaintiff’s claim.

State the general rules as to calculation or period of limitation.

COMPUTATION OF PERIOD OF LIMITATION
Section 12 -. Exclusion of time in legal proceedings –
(1) In computing the period of limitation for any suit, appeal or
application, the day from which such period is to be reckoned shall be
excluded.
(2) In computing the period of limitation for an appeal or an application
for leave to appeal or for revision or for review of a judgment, the day on
which the judgment complained of was pronounced and the time
requisite for obtaining a copy of the decree, sentence or order appealed
from or sought to be revised or reviewed shall be excluded.
(3) Where a decree or order is appealed from or sought to be revised or
reviewed, or when an application is made for leave to appeal from a
decree or order the time requisite for obtaining a copy of the judgment
on which the decree or order is founded shall also be excluded.
(4) In computing the period of limitation for an application to set aside
an award, the time requisite for obtaining a copy of the award shall be
excluded.
Explanation - In computing under this section the time requisite for
obtaining a copy of a decree or an order, any time taken by the court to
prepare the decree or order before an application for copy thereof is
made shall not be excluded.

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Example: In a suit for specific performance of agreement the date of

performance mentioned in the agreement will be the date for reckoning
the period of limitation of three
years and that date has to be excluded for computing the period of
limitation for three years which is the period of limitation for filing such
a suit.
A suit for recovery of loan has to be filed within three years of the date
of granting the loan. Hand note receipt was dated 5.9.1991 and the suit
filed on 5th September 1994 would be within time because the date of
hand note i.e. 5.9.1991 has to be excluded for computing the period of
limitation.
The suit for recovery of money based on promissory note was filed on
16.04.2003. The note was executed on 12.04.2000. So, the suit has to
be filed on 12.04.2003 as the date of execution of the promissory note
has to be excluded in view of s. 12 of the Limitation Act. But from
12.04.2003 to 15.04.2003 there were general holidays. So, the suit filed
on 16.04.2003 is not barred by limitation.
Time requisite for obtaining the certified copy of the judgment and
decree will be excluded.
The delay caused by the carelessness for negligence of the party in
applying for a copy are in paying the money required for making the
copy cannot be excluded from computation.
Time between judgment and signing of decree – Generally there is an
interval of time between the delivery of the judgment and signing of the
decree. In computing the time requisite for obtaining a copy of the
decree or an order any time taken by the court to prepare the decree or
order before application for copy thereof is made shall not be excluded.
The interval between judgment and signing the decree cannot be
excluded as the time requisite without regard to the date of application
for copies. In other words that it is only the time required if the
application is made that can be excluded as the time requisite.
Section 13- Exclusion of time in cases where leave to sue or appeal as
a pauper is applied for –
In computing the period of limitation prescribed for any suit or appeal
in any case where an application for leave to sue or appeal as a pauper
has been made and rejected, the time during which the applicant has
been prosecuting in good faith his application for such leave shall be
excluded, and the court may, on payment of the court-fees prescribed
for such suit or appeal, treat the suit or appeal as having the same force
and effect as if the court-fees had been paid in the first instance.

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14. Exclusion of time of proceeding bona fide in court without

jurisdiction –
(1) In computing the period of limitation for any suit the time during
which the plaintiff has been prosecuting with due diligence another civil
proceeding, whether in a court of first instance or of the appeal or
revision, against the defendant shall be excluded, where the proceeding
relates to the same matter in issue and is prosecuted in good faith in a
court which, from defect of jurisdiction or other cause of a like nature,
is unable to entertain it.
(2) In computing the period of limitation for any application, the time
during which the applicant has been prosecuting with due diligence
another civil proceeding, whether in a court of first instance or of appeal
or revision, against the same party for the same relief shall be excluded,
where such proceeding is prosecuted in good faith in a count of first
instance or of appeal or revision, against the same party for the same
relief shall be excluded, where such proceeding is prosecuted in good
faith in a court which, from defect of jurisdiction or other cause of a like
nature, is unable to entertain it.
(3) Notwithstanding anything contained in rule 2 of Order XXIII of the
Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub-section
(1) shall apply in relation to a fresh suit instituted on permission
granted by the court under rule of that Order, where such permission
is granted on the ground that the first suit must fail by reason of a
defect in the jurisdiction of the court of other cause of a like nature.
Explanation - For the purpose of this section, -
a. in excluding the time during which a former civil proceeding was
pending, the day on which that proceeding was instituted and the day
on which it ended shall both be counted;
b. a plaintiff or an applicant resisting an appeal shall be deemed to be
prosecuting a proceeding;
c. misjoinder of parties or of causes of action shall be deemed to be a
cause of a like nature with defect of jurisdiction.
The policy of the section is to afford protection to a litigant against the
bar of limitation when he institutes a proceeding which by reason of
some technical defect cannot be decided on merits and is dismissed.
But, when the party seeking the benefit of this section has failed to get
the relief in earlier proceedings not because of any defect in jurisdiction
or some other cause of like nature he cannot get the benefit of section
14. When the plaintiff has concurrent remedies and has availed one
remedy and has become unsuccessful he cannot get the benefit of

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section 14 when instituting the second alternative remedy though

section 14 does apply to appeal, the principle underlying it can be
invoked in aid of sufficient cause contemplated by section 15. The
benefit of this provision is not available in criminal proceeding.
Execution proceeding is a civil proceeding within the meaning of S.14,
the primary requirement for seeking exclusion u/s 14 is that the matter
was prosecuted before a court suffering from defect in jurisdiction.
Further
it is necessary that the same plaintiff should be in both the suits it is
not necessary that the plaintiff must have been prosecuting the
previous proceeding as a plaintiff, it is sufficient if as a defendant he
was urging the same case as he after words prefers as a plaintiff. It is
also necessary that the defendant must be the same in both the
proceeding. Due diligence in good faith needs to be established. The
definition of good faith is given under S. 2 (4) of the Limitation Act,
which requires the thing to be done with due care and attention. S.14
will not help a party who is guilty of negligence lapse or in action. This
Section also does not apply where the previous suit was abandoned or
withdrawn by the plaintiff and then a fresh suit has been filed after the
period of limitation.
There is a fundamental distinction between discretion to be used under
Section 5 of the Limitation Act and exclusion of time provided under
Section 14 of the Limitation Act. Whereas the exclusion under Section
5 is discretionary, under S/14 it is mandatory. If the initial filing is due
to carelessness the subsequent prosecution of the suit cannot be said
in good faith. The benefit of this section can be availed only when there
is initial want of jurisdiction.
Where the plaintiff chooses to withdraw his suit under O 23 R 1 CPC he
is not entitled to the benefit of Section 14 of the Limitation Act in a
subsequent suit on the same cause of action. If a suit is withdrawn by
the plaintiff under O 23 R 1 with permission to bring another suit, and
a fresh suit is instituted, the plaintiff is bound by the limitation in the
same manner as if the first suit had not been instituted. This is so even
if the court expresses it opinion that Section 14 shall apply. The policy
of the Section is to afford protection against the bar of limitation to a
man pursuing his claim in a wrong forum. The following condition must
be satisfied for the application of this Section--
• Both the prior and subsequent proceeding are civil proceeding
prosecuted by the same party
• The prior proceeding had been prosecuted with due diligence

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• The failure of the prior proceeding was on account of jurisdiction or

subjects of like nature
• The prior proceeding and the later proceeding should be of the like
nature
• It applies only to proceedings before Court
J. Kumardasan Nair v. IRIC Sohan AIR 2009 SC 1333
Fact:
First Respondent obtained a decree in a suit and the said decree was
put in execution vide Execution Petition No. 705 of 1977. Respondent
no 2 to 6 are the heirs and legal representative of Respondent no.1. The
said execution petition was dismissed by an order dated 8.7.1996.
The Judgment Debtor suffered another decree passed in original suit
no. 274/82 regarding which Execution Petition No. 271 of 1986 was
filed. A sale Certificate was issued in respect of suit property.
Respondent No 1 to 5 filed a second execution petition. Appellants were
impleaded as Respondent 16-17. They raised objection interalia on
ground of Limitation. The said objection petition was rejected.
An appeal was preferred which was held to be not maintainable by the
1st Appellate Court by an order dated 5.10.2015. However, the merit of
the case was also considered.
Aggrieved by the order Execution 2nd Appeal was preferred before the
Hon'ble High Court. It was held that the impugned order was not correct
in entering into merit of the case despite holding that the appeal was
not maintainable.
A revision petition was filed along with a petition under Section 5 of the
Limitation Act for condonation of delay. However, application under
Section 5 was withdrawn and an application under Section 14 was filed.
High Court held that the said application was not maintainable in the
facts and circumstance of the case and the expression cause of like
nature' has to be read as ejusdem generis with expression 'defect of
jurisdiction' and that so construed the expression 'other cause of like
nature' must be interpreted so as to convey something analogous to the
preceding words 'from defect of jurisdiction' Apex Court allowed the
appeal negating the reasoning given by the High Court that Section 14
can be allowed in cases of Jurisdictional error and not otherwise.
Consolidated Eng. Enterprises v. Irrigation Department (2008)7 SCC
169 Section 14 of the Limitation Act deals with exclusion of time of
proceeding bona fide in a court without jurisdiction. On analysis of the

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said section, it becomes evident that the following conditions must be

satisfied before Section 14 can be pressed into service:
(1) Both the prior and subsequent proceedings are civil proceedings
prosecuted by the same party;
(2) The prior proceeding had been prosecuted with due diligence and in
good faith;
(3) The failure of the prior proceeding was due to defect of jurisdiction
or other cause of like nature;
(4) The earlier proceeding and the latter proceeding must relate to the
same matter in issue and;
(5) Both the proceedings are in a court
The policy of the section is to afford protection to a litigant against the
bar of limitation when he institutes a proceeding which by reason of
some technical defect cannot be decided on merits and is dismissed.
While considering the provisions of Section 14 of the Limitation Act,
proper approach will have to be adopted and the provisions will have to
be interpreted so as to advance the cause of justice rather than abort
the proceedings.
It will be well to bear in mind that an element of mistake is inherent in
the invocation of Section 14. In fact, the section is intended to provide
relief against the bar of limitation in cases of mistaken remedy or
selection of a wrong forum. On reading Section 14 of the Act it becomes
clear that the legislature has enacted the said section to exempt a
certain period covered by a bona fide litigious activity. Upon the words
used in the section, it is not possible to sustain the interpretation that
the principle underlying the said section, namely, that the bar of
limitation should not affect a person honestly doing his best to get his
case tried on merits but failing because the court is unable to give him
such a trial, would not be applicable to an application filed under
Section 34 of the Arbitration and Conciliation Act of 1996. The principle
is clearly applicable not only to a case in which a litigant brings his
application in the court, that is, a court having no jurisdiction to
entertain it but also where he brings the suit or the application in the
wrong court in consequence of bona fide mistake or (sic of)law or defect
of procedure. Having regard to the intention of the legislature this Court
is of the firm opinion that the equity underlying Section 14 should be
applied to its fullest extent and time taken diligently pursuing a remedy,
in a wrong court, should be excluded There must be no pretended
mistake intentionally made with a view to delaying the proceeding or
harassing the opposite party. In the light of these proceedings the
question will have to be considered whether appellant prosecuted the
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matter in the court with due diligence and good faith. The definition of
“good faith” as found in S.2(4) of the Limitation Act would indicate that
nothing shall be deemed to be in good faith which is not done with due
care and caution.
Benefit under Section 14 is not available in a Criminal Proceeding.
The second suit is not a continuation of the first suit and the limitation
is to be computed afresh with respect to the second suit. It is only the
period in which the plaintiff prosecuted the suit bona-fide in another
court is relevant and which can be excluded.
Section 14 provides for exclusion of period, whereas Section 5
provides for con-donation of delay.
Commissioner, M.P. Housing Board and Ors v. M/S Mohan Lal and
Company, 2016 SCC Online SC 738 --- It has been held in this case
that filing of an application under Section 11 of the Arbitration and
conciliation Act 1996, for an appointment of arbitrator is totally
different than an objection to award under Section 34 of the 1996 Act
as one is at the stage of initiation and another is at the stage of
culmination. Thus, proceedings do not relate to “same matter in issue”
and therefore Section 14 shall not apply Section 15- Exclusion of time
in certain other cases
(1) In computing the period of limitation for any suit or application for
the execution of a decree, the institution or execution of which has been
stayed by injunction or order, the time of continuance of the injunction
or order, the day on which it was issued or made, and the day on which
it was withdrawn, shall be excluded.
(2) In computing the period of limitation for any suit of which notice has
been given, or for which the previous consent or sanction of the
Government or any other authority is required, in accordance with the
requirements of any law for the time being in force, the period of such
notice or, as the case may be, the time required for obtaining such
consent or sanction shall be excluded.
Explanation - In excluding the time required for obtaining the consent
or sanction of the Government or any other authority, the date on which
the application was made obtaining the consent or sanction and the
date of receipt of the order of the Government or other authority shall
both be counted.
(3) In computing the period of limitation for any suit or application for
execution of decree by any receiver of interim receiver appointed in
proceedings for the adjudication of a person as an insolvent or by any
liquidator or provisional liquidator appointment in proceedings for the

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winding up of a company, the period beginning with the date of

institution of such proceeding and ending with the expiry of three
months from the date of appointment of such receiver or liquidator, as
the case may be, shall be excluded.
(4) In computing the period of limitation for a suit for possession by a
purchaser at a sale in execution of a decree, the time during which a
proceeding to set aside the sale has been prosecuted shall be excluded.
(5) In computing the period of limitation for any suit the time during
which the defendant has been absent from India and from the territories
outside India under the administration of the Central Government, shall
be excluded.
In computing the period of limitation, where a suit has been filed or an
application for stay has been made, the time during which there was a
stay order of the against the filing of suit or execution application shall
be excluded.
Where a plaintiff is required to give notice to the Government u/s 80
Civil Procedure Code he is entitle to exclude the period of notice in
computing the period of limitation prescribed for the suit A receiver
including an interim receiver or a liquidator including a provisional
liquidator appointed in a proceeding for adjudication of a person as an
insolvent or in proceeding for the winding up of a company as the case
may be, is entitled, in view of sub-sec. (3), the exclusion of the period
between the date of application and the date of appointment and also
additional period of three months thereafter in computing the period of
limitation for filing suit or execution as such receiver or liquidator. As
such receiver or liquidator needs sufficient time to acquaint himself with
the affairs of the estate or of the company, as the case may be, and its
assets and liabilities before he can take steps for filing a suit or for giving
him a period of three months after his appointment to file a suit or a
petition for execution.
Two condition have to be fulfilled in order to obtain the benefit of S. 15
(4) namely :
The suit should be one for possession by the purchaser at a sale in
execution of the decree, and It should be a suit and not an application
if this two conditions are fulfilled then the time during which a
proceeding for setting aside the sale deed been prosecuted shall be
excluded Turner Morrison & Co. Ltd. v. Hungerford Investment Trust
Ltd., AIR 1972 SC 1311 Facts: The plaintiff company filed a suit on 15th
November 1965 for recovery of a sum of money from the defendant
company on account of the tax liability of the latter discharged by the
plaintiff before 15th November 1962. The defendant, a foreign company,

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was attending the general meetings of the plaintiff company through its
representatives.
Held: Section 15(5) of the Limitation Act, 1963 can be viewed in one of
the two ways i.e. that that provision does not apply to incorporated
companies at all or alternatively that the incorporated companies must
be held to reside in places where they carry on their activities and thus
being present in all those places. Hungerford is an investment company.
It had invested large sums of monies in Turner Morrison. Its Board of
Directors used to meet in India now and then. It was (through its
representatives) attending the general meeting of the shareholders of
Turner Morrison. Under those circumstances, it must be held to have
been residing in this country and consequently was not absent from
this country. Hence Section 15(5) cannot afford any assistance to
Turner Morrison to save the bar of limitation.
SECTION 16- EFFECT OF DEATH ON OR BEFORE THE ACCRUAL OF
RIGHT TO SUE
(1) Where a person who would, if he were living, have a right to institute
a suit or make an application dies before the right accrues, or where a
right to institute a suit or make an application accrues only on the death
of a person, the period of limitation shall be computed from the time
when there is a legal representative of the deceased capable of
instituting such suit or making such application.
(2) Where a person against whom, if he were living, a right to institute
a suit or make an application would have accrued dies before the right
accrues, or where a right to institute a suit or make an application
against any person accrues on the death of such person, the period of
limitation shall be computed from the time when there is a legal
representative of the deceased against whom the plaintiff may institute
such suit or make such application.
(3) Nothing in sub-section (1) or sub-section (2) applies to suits to
enforce rights of pre-emption or to suit for the possession of immovable
property or of a hereditary office.
“Before the right accrues” – The death must occur before the right to
sue or make an application accrues. If the right accrues in the life-time
of the deceased, limitation begins to run from the date of accrual, and
it matters not whether by a will proved or by any other means a legal
representative comes into existence or not. The intention of Section 16
is to limit the time during which an action may be brought and not to
take away the rights of a person who is a possible defendant to an action
and it is not intended to accurate any right of action against such a
person. The expression ‘capable of suing’ is the equivalent of ‘not being

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under legal disability to sue’. It does not refer to an incapacity arising

from want of means or absence or other physical cause.
Section 16 confines to rights of action accruing after death. It makes it
applicable to rights of action accruing either simultaneous on death or
thereafter of the person suing or sued. In order to attract the
applicability of Section 16, it is necessary that the death must occur
before the right to institute a suit or make an application accrues. If the
right to institute a suit or make an application accrues in the life time
of the deceased the limitation shall begin to run from the date of the
accrual of cause of action and the provisions of Section 16 would not
apply.
SECTION 17-- EFFECT OF FRAUD OR MISTAKE
(1) Where, in the case of any suit or application for which a period of
limitation is prescribed by this Act,--
(a) the suit of application is based upon the fraud of the defendant or
respondent or his agent; or
(b) the knowledge of the right or title on which the suit or application is
founded is concealed by the fraud of any such person as aforesaid; or
(c) the suit or application is for relief from the consequences of a
mistake; or
(d) where any document necessary to establish the right of the plaintiff
or applicant has been fraudulently concealed from him; the period of
limitation shall not begin to run until plaintiff or applicant has
discovered the fraud or the mistake or with reasonable diligence could
have discovered the it; or
in the case of a concealed document, applicant first had the means of
producing the concealed document or compelling its production ;
Provided that nothing in this section shall enable any suit to be
instituted or application to be made to recover or enforce any charge
against or set aside any transaction affecting, any property which:
i. in the case of fraud, has been purchased for valuable
consideration by a person who was not a party to the
fraud and did not at the time of the purchase know, or
have reason to believe, that any fraud had been
committed, or
ii. in the case of mistake, has been purchased for valuable
consideration subsequently to the transaction in which
the mistake was made, by a person who did not know, or

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have reason to believe, that the mistake had been made,

or
iii. in the case of a concealed document, has been purchased
for valuable consideration by a person who was not a
party to the concealment and, did not at the time of
purchase know, or have reason to believe, that the
document had been concealed.
(2) Where a judgment-debtor has, by fraud or force, prevented the
execution of a decree or order within the period of limitation, the court
may, on the application of the judgment-creditor made after the expiry
of the said period extend the period for execution of the decree or order:
Provided that such application is made within one year from the date of
the discovery of the fraud or the cessation of force, as the case may be.
This section does not apply to criminal cases. According to the Hon’ble
Supreme Court in, Pallav Sheth v. Custodian (2001) 7 SCC 549, the
provision of this section embodies fundamental principles of justice and
equity, vis., that a party should not be penalized for failing to adopt legal
proceedings when the facts or material necessary for him to do so have
been wilfully concealed from him and also that a party who has acted
fraudulently should not gain the benefit of limitation running in his
favor by virtue of such fraud.
If the plaintiff claims exemption on the ground of fraud on the part of
the defendant he must proof the fraud. In such a case it is for the
plaintiff to give in the first instance clear proof of the fraud alleged by
him. The court will not presume it from the mere existence of suspicious
circumstances.
Recently in 2018, the Hon’ble Supreme Court in P. Radha Bai v. P.
Ashok Kumar, examined the applicability of Section 17 of the Limitation
Act, 1963 for condonation of a delay caused on the account of alleged
fraud played on the objector (party challenging the award) beyond the
period prescribed under Section 34 (3) of the Arbitration and
Conciliation Act of 1996.
According to the Hon’ble Court, Section 17 does not encompass all
kinds of frauds and mistakes. Section 17(1)(b) and (d) only encompasses
only those fraudulent conduct or act of concealment of documents
which have the effect of suppressing the knowledge entitling a party to
pursue its legal remedy. Once a party becomes aware of the antecedent
facts necessary to pursue a legal proceeding, the limitation period
commences.

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SECTION 18- EFFECT OF ACKNOWLEDGEMENT IN WRITING

(1) Where before the expiration of the prescribed period for a suit or
application in respect or any property or right, an acknowledgment of
liability in respect of such property or right has been made in writing
signed by the party against whom such property or right is claimed, or
by any person through whom he derived his title or liability, a fresh
period of limitation shall be computed from the time when the
acknowledgment was so signed.
(2) Where the writing containing thee acknowledgement is undated, oral
evidence may be given of the time when it was signed; but subject to the
provisions of the Indian Evidence Act,1872 ( 1 of 1872), oral evidence of
its contents shall not be received.
Explanation - For the purposes of this section, -
a. an acknowledgment may be sufficient though it omits to specify the
exact nature of the property or right, or avers that the time for payment,
delivery, performance or enjoyment has not yet come or is accompanied
by refusal to pay, deliver, perform or permit to enjoy, or is coupled with
a claim to set-off, or is addressed to a person other than a person
entitled to the property or right;
b. the word "signed" means signed either personally or by an agent duly
Authorized in this behalf ; and
c. an application for the execution of a decree or order shall not be
deemed to be an application in respect of any property or right.
It is not necessary that an acknowledgment within Section 18 must
contain a promise pay or should amount to a promise to pay.
[Subbarsadya v.Narashimha, AIR 1936 Mad.939]
The acknowledgement must be unqualified so as to create fresh cause
of action. The acknowledgement must be of existing liability. It must be
an acknowledgement of debt as such and must involve an admission of
a subsisting relationship of debtor and creditor; and an intention to
continue it until it is lawfully determined must also be evident. The
acknowledgement must be made before the expiry of the period of
limitation. An acknowledgement of barred liability is not material. Thus
where the debt has already become time-barred, acknowledgement
cannot create fresh period of limitation. An acknowledgement without
signature is no acknowledgement.
It will be sufficient if the acknowledgement is signed by the agent and
not by the debtor. Acknowledgement should be by a person who has
personal liability to pay. Acknowledgement does not create a new debt

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it only extends the period of limitation. Acknowledgement must relate

to a definite liability in respect of the right claimed. Explanation (b) to
S.18 has explained that the writing containing the acknowledgement
need not be signed by the debtor himself; it would be sufficient if the
signature is that of the agent. Agents authority may be by way of a power
of attorney or it may be gathered from the surrounding circumstance of
the case. An unregistered document, registration of which is
compulsory, can be used for the collateral purpose of proving
acknowledgement of liability for the purpose of extending time under
S.18 of the Limitation Act.
Application to Execution Proceedings – Section 18 does not apply to
execution of decree. So, even in case of consent decree for specific
performance of contract, the execution has to be filed within 12 years
of the date on which the decree becomes executable.
SECTION 19- EFFECT OF PAYMENT ON ACCOUNT OF DEBT OR OF
INTEREST ON LEGACY
Where payment on account of a debt or of interest on a legacy is made
before the expiration of the prescribed period by the person liable to pay
the debt or legacy or by his agent duly Authorized in this behalf, a fresh
period of limitation shall be computed from the time when payment was
made:
Provided that, save in the case of payment of interest made before the
1st day of January,1928, an acknowledgment of the payment appears
in the hand-writing of, or in a writing signed by the person making the
payment.
Explanation - For the purposes of this section, -a. where mortgaged land
is in the possession of the mortgagee, the receipt of the rent of produce
of such land be deemed to be a payment;
b. "debt" does not include money payable under a decree or order of a
court.
A payment saves limitation under this section if it is made by a person
liable to pay it a purchaser of equity of redemption is a person liable to
pay the mortgage the debt therefore, if under a mortgage decree of sale
of the mortgaged property to which he is a party through exempted from
person liability he pays interest as such, such payment gives a fresh
period of limitation for execution of the decree.
A payment by one of the two joint debtors would save limitation against
the other debtor also. In order to attract Section 19, payment has to be
made within the period of limitation and not that the acknowledgement
of such payment has to be made within the period of limitation.

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It will suffice if it is signed before the suit is commenced.

Under Section 19 it is the payment which extends the limitation and
such payment has to be proved in a particular way, namely, a written
or signed acknowledgement. That is the only mode of proof of such
payment.
SECTION 20 - EFFECT OF ACKNOWLEDGMENT OR PAYMENT BY
ANOTHER PERSON
(1) The expression "agent duly Authorized in this behalf" in sections 18
and 19 shall in the case of a person under disability, include his lawful
guardian, committee or manager or an agent duly Authorized by such
guardian, committee or manager to sign the acknowledgment or make
the payment.
(2) Nothing in the said sections renders one of several joint contractors,
partners, executors or mortgagees chargeable by reason only of a
written acknowledgment signed by, or of a payment made by, or by the
agent of, any other or others of them.
(3) For the purposes of the said sections, -
a. an acknowledgment signed or a payment made in respect of any
liability by, or by the duly Authorized agent of, any limited owner of
property who is governed by Hindu Law, shall be a valid
acknowledgment or payment, as the case may be, against a reversionary
succeeding to such liability; and
(b) where a liability has been incurred by, or on behalf of a Hindu
undivided family as such, an acknowledgment or payment made by, or
by the duly Authorized agent or, the manager of the family for the time
being shall be deemed to have been made on behalf of the whole family.
The word ‘chargeable’ in Section 20 means every kind of chargeability
and includes liability as to property it is not limited to personal liability
only. Section 20 of the Limitation Act is explanatory of Sections 18 and
19 of the Act and does not constitute an exception in the case of either
of these sections.
Section 20 of the Limitation Act shows that for the purpose of Section
20, the payment made by a guardian must be held to be a payment by
an agent duly authorized on his behalf.

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21-- EFFECT OF SUBSTITUTING OR ADDING NEW PLAINTIFF OR

DEFENDANT
(1) Where after the institution of a suit, a new plaintiff or defendant is
substituted or added, the suit shall, as regards him, be deemed to have
been instituted when he was made a party:
Provided that were the court is satisfied that the omission to include a
new plaintiff or defendant was due to a mistake in good faith it may
direct that the suit as regards such plaintiff or defendant shall be
deemed to have been instituted on any earlier date.
(2) Nothing in sub-section (1) shall apply to a case where a party is
added or substituted owing to assignment or devolution of any interest
during the tendency of a suit or where a plaintiff is made a defendant
or a defendant is made a plaintiff.
If some of them institute a suit within time and the other plaintiffs are
added after the period of limitation, the claim of the original plaintiffs,
would be barred. Order I Rule 10(2) CPC provides for the addition of (1)
necessary parties(2) proper parties. In adding necessary parties Section
21 of the Limitation Act has to be taken into account, but in adding
proper party Section 21 has no application.
The proviso to sub-section (1) of Section 21 clothes the court with the
direction to condone the delay in filing the application for addition of
parties after the period of limitation provided the same is made bona-
fide and good cause is shown therefore.
SECTION 22--- CONTINUING BREACHES AND TORTS
In the case of a continuing breach of contract or in the case of a
continuing tort, a fresh period of limitation begins to run at every
moment of the time during the breach or the tort, as the case may be,
continues.
According to Section 22 of the Limitation Act, 1963 in the case of a
continuing breach of contract or in the case of a continuing tort, a fresh
period of limitation begins to run at every moment of the time during
which the breach or the tort, as the case may be, continues. This section
speaks about continuing breach of contract and not of successive
breach of contract.
The expression ‘Continuing breach of contract or continuing tort’ means
that, if an act or omission on the part of an accused continued the
breach of contract or wrongs, and if that act or omission continues from
day to day, then a fresh cause of action de die in diem(from day to day)

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causes for a fresh offence every day on which the act or omission
continues.
Section 22 of the Limitation Act relates to continuing breach of contract
and also to continuing tort which this section provides for a suit for
compensation for acts not actionable without special damage. The law
of Limitation recognized that liabilities for payments of damages and/or
compensation may continue to accrue day to day newly in respect of
continuing breach of contracts and torts.
The continuing tort means continuing ‘wrong’. Section 22 refers to a
continuing wrong or tort. A continuing wrong creates a continuing
source of injury and renders the doer of the act responsible and liable
for the continuance of the said injury. If the wrongful act causes an
injury which is complete, there is no continuing wrong even though the
damage resulting from the act may continue. An infringement of a trade
mark is a continuing wrong. In Bengal Waterproof Ltd. v. Bombay
Waterproof Mfg. Co., AIR 1997 SC 1398, it has been held that after filing
the first suit based on the infringement of trade mark and passing off
action till the date of suit, a second suit is filed for continuous acts of
infringement of trade mark subsequent to the filing of the earlier suit is
not barred.
SECTION 23 – SUITS FOR COMPENSATION FOR ACTS NOT
ACTIONABLE WITHOUT SPECIAL DAMAGE
In the case of suit for compensation for an act which does not give rise
to a cause of action unless some specific injury actually results there
from, the period of limitation shall be computed from the time when the
injury results.
The provisions of Section 23 are applicable even in cases of special or
local laws, unless expressly barred or excluded in accordance with
Section 29 of the Limitation Act. The Section 23 of the Limitation Act is
applicable to suits based on both torts and contracts. It deals with a
suit for compensation for an act which does not give rise to a cause of
action. The expression ‘cause of action’ is not defined by the Limitation
Act. However, it means every fact which it would be necessary for the
plaintiff to prove if traversed in order to support his right to the
judgment of the court.
To avail the benefit of Section 23 of the Limitation Act, it must be proved
that some specific injury has occurred to the plaintiff. The word ‘specific’
means that can be specified and the word ‘injury’ includes a legal
injuries.

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What is Plaint in CPC?

A plaint is a legal document that contains the claims made by the

plaintiff when they bring a case to a civil court. It’s the first step in
starting a lawsuit.
So, what does a plaint in CPC include?

Well, it has all the important details and things needed for the case, like
what the plaintiff is complaining about and why. Even though it’s not
defined in the CPC (Civil Procedure Code), you can find the rules for it
in Order VII of the CPC.

When we talk about the cause of action in a plaint, it has two parts.
First, there’s the legal theory, which is like the facts that show why the
plaintiff thinks they’ve been harmed. Second, there’s the legal remedy,
which is what the plaintiff wants the court to do about it.

A plaint is a big deal because it’s the very first step in starting a lawsuit
and it helps figure out which civil court should hear the case.

Provisions of Plaint in CPC

Order VII of the Code of Civil Procedure is all about the “plaint.” In this
order, you’ll find different rules that cover various aspects of what
should be in a plaint. Here’s a breakdown:
 Rules 1 to 8: These rules explain what specific details should be
included in the plaint.
 Rule 9: This rule tells us how the court should admit the plaint.
 Rules 10 to 10-B: These rules discuss what happens if the plaint
in CPC needs to be returned and how parties should appear.
 Main Rules 11 to 13: These rules lay out the situations in which
the court can reject the plaint.

Section 26 of the Code of Civil Procedure is important because it says

that every lawsuit has to start with the presentation of a plaint in CPC
or in a way that the law says. So, it’s clear that a plaint is essential when
you want to begin a case in a civil or commercial court.

Contents of A Plaint
A plaint in CPC is a crucial legal document that must contain specific
information; otherwise, it won’t be considered valid. These necessary
details are outlined in Rules 1 to 8 of Order VII of the CPC. Here’s a
breakdown of what should be the content of a plaint in CPC:
 The name of the civil or commercial court where the lawsuit will
be filed.

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 Information about the plaintiff, including their name, address and

description.
 Details about the defendant, including their name, residence and
description.
 If the plaintiff has any health issues or disabilities, these should
be mentioned.
 The facts that give rise to the cause of action and where this cause
of action occurred.
 Facts that help determine the court’s jurisdiction.
 Information about the relief or remedy the plaintiff is seeking from
the court.
 If the plaintiff wants to set off a portion of their claim, the amount
allowed should be stated.
 The value of the subject matter of the suit, not just for jurisdiction
but also for court fees.
 Verification by the plaintiff under oath.

These details make a plaint in CPC essential for starting a lawsuit in

civil or commercial courts and it remains significant throughout the
legal process. Additionally, Rule 2 of Order VII specifies that the plaintiff
must state the exact amount of money they seek from the defendant
and Rule 3 requires a proper description of immovable property when
it’s involved in the case.

Return of Plaint in CPC

Section 19A of the Code of Civil Procedure (CPC) deals with the “Return
of Plaint.”
“19A. Return of plaint.—Whenever the Court finds that for want of
jurisdiction it cannot finally determine the question at issue in the suit, it
may at any stage of the proceedings return the plaint to be presented to
a Court having jurisdiction to determine the question. When the Court so
returns a plaint, it shall comply with the provisions of the second
paragraph of section 57 of the Code of Civil Procedure (14 of 1882) and
make such order with respect to costs as it may think just and the Court
shall for the purposes of the Indian Limitation Act, 1877 (15 of 1877) be
deemed to have been unable to entertain the suit by reason of defect of
jurisdiction. When a plaint so returned is afterwards presented to a High
Court, credit shall be given to the plaintiff for the amount of the court-fee
paid in the Small Cause Court in respect of the plaint in the levy of any
fees which according to the practice of the High Court are credited to the
Government.”
According to this section:
1. If a court determines that it lacks jurisdiction to finally decide the
matter in a lawsuit at any stage of the proceedings, it has the

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authority to return the plaint to be presented before a court that

has the jurisdiction to address the issue.
2. When a court returns a plaint in such a situation, it must follow
the provisions of the second paragraph of Section 57 of the Code
of Civil Procedure (Amendment) Act, 1882. This may include
making orders related to costs, as deemed just.
3. For the purposes of the Indian Limitation Act, 1877, the court
returning the plaint is considered to have been unable to entertain
the suit due to a jurisdictional defect.
4. If a returned plaint is later presented to a High Court, the plaintiff
is credited for the amount of court fees paid in the Small Cause
Court concerning the plaint, as is the practice of the High Court,
in the levy of any fees, which are typically credited to the
government.

Rejection of Plaint
A plaint in CPC can be rejected in certain situations when specific
requirements are not met. Here are some instances in which a plaint
may be rejected:
 Non-Disclosure of Cause of Action: If the cause of action is not
clearly mentioned in the plaint, making it impossible to prove the
harm suffered by the plaintiff, the court may reject the plaint. It’s
essential to present the facts clearly to seek relief. For example, in
the case of SNP Shipping Service Pvt. Ltd. v. World Tanker
Carrier Corporation, the plaint in CPC was rejected and the suit
dismissed under Order 7, Rule 1(a) of the CPC, 1908.
 Undervaluation of Relief: If the relief sought by the plaintiff is
undervalued and the court asks the plaintiff to correct the
valuation within a given time frame, but the plaintiff fails to do so,
the plaint in CPC may be rejected.
 Improperly Stamped Documents: When all the documents are
not properly stamped and the court requires the plaintiff to
provide the required stamp paper within a specified time, failure
to do so may lead to the rejection of the plaint.
 Lack of Legal Basis: If the plaint is based on a statement or claim
secured by a law or statute that does not grant the plaintiff the
right to file the suit, the court may reject it.
 Failure to Submit Duplicate Copy: If the rules stipulate the
submission of a duplicate copy of the plaint and the plaintiff fails
to do so, the court may dismiss the plaint.
 Non-Compliance with Rule 9 of Order VII: If the plaintiff does
not comply with the provisions of Rule 9 of Order VII of the CPC,
the court may reject the plaint.

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Form of the Plaint in CPC

A plaint in CPC should follow a specific format, consisting of three

essential parts: the heading and title, the body of the plaint and the
relief claimed. Let’s explore these parts in more detail:
Heading and Title
Name of the Court: The plaint in CPC should begin with the name of
the court where the case is being filed. It is not necessary to mention
the name of the presiding officer; specifying the court’s name is
sufficient. For example, “In the Court of the District Judge, Sirsa.”
Parties to the Suit: In every lawsuit, there are typically two parties: the
plaintiff and the defendant. However, there can be more than one
plaintiff or defendant. The plaint in CPC must provide all the necessary
particulars about these parties, including their names, residences,
father’s names, ages and any other details required for identification.
If there are multiple parties, their names should be mentioned
according to their respective roles in the case. If one of the parties is a
minor or of unsound mind, this information should also be included in
the cause title.
Title of the Suit: The title of the suit should explain the reasons for
bringing the matter to court and indicate the court’s jurisdiction.
Body of the Plaint
The body of the plaint in CPC is where the plaintiff elaborates on their
concerns. It should be organised into short paragraphs, each presenting
a single fact or point. The body of the plaint can be further divided into
two main parts:
1. Formal Part:
 Date of Cause of Action: The plaint in CPC must include the date
when the cause of action occurred. This date is crucial because it
helps determine whether the lawsuit is filed within the legally
specified time limits, known as the period of limitation.
 Jurisdiction of the Court: The plaint should clearly state the
facts that establish the court’s pecuniary (financial) and territorial
(geographical) jurisdiction over the subject matter of the lawsuit.
 Value of the Subject Matter: The value of the subject matter of
the lawsuit should be properly stated. This is essential both for
determining the court’s pecuniary jurisdiction and for calculating
court fees.
 Statement Regarding Minority: If any party involved in the case
is a minor, this should be mentioned in the plaint.
 Representative Character of the Plaintiff: If the plaintiff is
representing others, such as in a class-action lawsuit or as a legal
representative, this should be indicated in the plaint.
 Reasons for Claiming Exemptions: If the plaintiff is initiating
the suit after the period of limitation has expired and is seeking

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an exemption under the law, the reasons for this should be

explained in the plaint.
2. Substantial Portion:
 In this section, the plaint in CPC must include all the essential
facts that form the basis of the lawsuit. This means detailing the
grounds on which the plaintiff is pursuing the cause of action,
including any additional legal grounds.
 It should be demonstrated in the plaint that the defendant has a
clear interest in the subject matter of the case, justifying their
involvement and the court’s jurisdiction.
 If there are multiple defendants and their liability is not joint, the
individual liability of each defendant should be separately
specified in the plaint.
 Similarly, if there are multiple plaintiffs and their causes of action
are not joint, this should also be clearly indicated in the plaint.
Relief
The relief claimed is a crucial part of the plaint. It is where the plaintiff
specifies precisely what they are seeking from the court. This can be a
request for compensation (damages), a demand for specific performance
of a contract, an injunction to prevent certain actions, or any other form
of relief. It’s vital to state the relief clearly and accurately in the plaint
because the claims made in the plaint in CPC cannot be supplemented
or altered through oral pleadings later on.
Signature and Verification
At the end of the plaint, the plaintiff’s signature should be placed. If the
plaintiff cannot be present due to a legitimate reason, an authorised
representative’s signature can suffice.
The plaint in CPC must also be duly verified by the plaintiff. If the
plaintiff is unable to do so personally, their representative may verify it
on their behalf, after informing the court.
The verification process involves specifying which paragraphs in
the pleadings the plaintiff has personally verified based on their
knowledge of the facts and which paragraphs have been verified based
on information received and subsequently believed to be true.
The plaintiff or verifier’s signature, along with the date and place, at the
end of the plaint, is essential.
It’s worth noting that the verification process must take place before a
competent court or in front of an Oath Commissioner to ensure the
authenticity of the statements made in the plaint in CPC. This adds
credibility to the claims presented in the legal document.
Conclusion
In conclusion, a plaint in CPC is a formal and crucial legal document
that initiates a civil lawsuit. It provides a clear and structured account
of the case, including the parties involved, the facts leading to the cause
of action, the relief sought and jurisdictional details.

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The plaint plays a fundamental role in defining the scope and purpose
of the lawsuit and it ensures that the court has the necessary
information to proceed with the case. Adherence to the specific rules
and guidelines outlined in the CPC is essential when drafting a plaint
to maintain legal clarity and fairness in civil litigation.

State the provisions regarding transfer of cases.

The court must maintain impartiality when dealing with parties
involved in a dispute. Therefore, when a plaintiff initiates a lawsuit in
their preferred location, as outlined in the "Code of Civil Procedure
1908"1, the defendant is required to appear before the court and submit
a written statement, presenting objections to the plaintiff's suit. If the
defendant raises concerns related to the court's jurisdiction based on
provisions within the Code of Civil Procedure, the court must initially
address the jurisdictional issue. If the court determines that it lacks
jurisdiction, it is obligated to transfer the lawsuit, following the
guidelines. Nevertheless, if either party encounters difficulties at any
point during the legal proceedings and wishes to relocate the case to a
different place or court of their choice, they have the remedy to file a
transfer petition in the relevant court in accordance with such
applicable law.

If the defendant has not consented to the chosen location for the suit,
the court cannot commence the proceedings. However, it is within the
court's authority to reject the defendant's application to transfer the
suit, compelling the defendant to proceed with the suit in the original
location. In addition to the involved parties, the court, at its discretion,
possesses the authority to transfer the suit. This authority is granted to
them by the Code of Civil Procedure of 19082, enabling them to address
such matters and transfer the suit to another court with the appropriate
jurisdiction if the interests of justice necessitate such a move.

Through this research, the author has tried to critically analyze the
provisions under the Code of Civil procedure relating to the Transfer of
Cases with case laws.

PROVISIONS EXPLAINED

Section 223 of the Code of Civil Procedure contains the substantive

provision that empowers the Civil Court to transfer a lawsuit. This
section outlines the two essential conditions that must be met before a
suit transfer can be initiated:

1. The application for transfer must be made to the court before the
resolution of the issues between the parties in the case.

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2. Once the application for transfer has been submitted by one party,
notice of this application should be sent to the opposing party.

The Court, after considering the objections and arguments put forth by
both parties, will determine which court has the appropriate jurisdiction
and decide the suit in question. It's important to note that, as
established in the case of Ms. Basanti Devi v. Mst. Sahodra 4, "when
considering an application for the transfer of a suit under Section 22,
the court should not only take into account the consent of both parties
but should also assess the overall circumstances that suggest whether
the case should proceed in a court different from the one where the
plaintiff initially filed it. This ensures a comprehensive evaluation of the
transfer request."

"Section 235 of the Code of Civil Procedure specifies the appropriate

court to which an application for the transfer of a suit should be
submitted based on the jurisdiction of the courts involved":

1. If multiple courts have jurisdiction that is inferior to the same

appellate court, the application for transfer of the suit should be
filed before that common appellate court.
2. If the courts in question have jurisdiction inferior to different
appellate courts but fall under the jurisdiction of the same High
Court, the application for transfer must be filed with that High
court.
3. When the courts involved are inferior to different High Courts, the
application for transfer must be submitted to the High Court
within the local limits of whose jurisdiction the court where the
suit was originally filed is located.

These provisions ensure that the application for transfer is directed to

the appropriate higher authority, whether it's the same appellate court,
the same high court, or a specific high court with jurisdiction over the
area where the suit was originally filed.

Section 246 of the Code of Civil Procedure7 deals with the jurisdiction
for the transfer of a suit or the handling of appeals or revisions.
Importantly, this section allows for the exercise of the power of transfer
by the District Judge or High Court suo moto, even in the absence of a
formal application for transfer from any party involved in the case. The
transfer should be based on valid and justifiable reasons, taking into
account both the law and the specific facts of the case. This means that
the court should consider the circumstances and merits of the case as
a whole when deciding whether a transfer is necessary. Section 24
states that the court has the power to transfer or withdraw cases in

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specific circumstances, either in response to an application by the

parties or Suo moto.

Here are the prevalent powers and procedures associated with the
transfer of cases under Section 24 CPC:

1. Transfer of Suits or Proceedings by Application: When the court

receives an application for the transfer of a case from the involved
parties, it must serve notice of this application to all parties and
hear their objections. Following this, "the High Court or the
District Court may, at any stage of the suit:"

- Transfer an undecided suit or proceeding to a court inferior to it

that is deemed suitable for trial or disposal.

- Withdraw an undecided suit or proceeding from any court

inferior to it and either:

- Proceed to try or dispose of the case itself.

- Transfer the case to a court inferior to it that is fit for trial or

disposal.

- "Re-transmit the case for trial or disposal to the court from which
it was removed."

2. Retrial or Resuming from a "Transferred Stage: When a suit or

proceeding is transferred or withdrawn, the court can either retry
it or continue from the stage at which it was transferred or
withdrawn."
3. Judicial Discretion: The court should exercise its discretionary
power with respect to the transfer of the case impartially, guided
by principles of justice and equity. The court should objectively
consider the grounds and reasons for transfer and ensure that the
application is not motivated by mala fide intentions. If an
application for transfer is found to be frivolous or made with ill
intent, the court has the authority to dismiss it.
4. Notice to Parties: When an application is made under Section 24
CPC for the transfer of a case to the High Court and a notice is
sent to the parties, it is considered an original proceeding
according to Section 1418 of the Code of Civil Procedure.
5. Recording Reasons: When applying for the transfer of cases to a
higher-level jurisdiction , the court should clearly document the
reasons or grounds for the transfer under Section 24 CPC. These
reasons should be recorded separately from the main case facts,
and the transfer application record should be maintained

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separately in the court's records. The original order related to the

transfer should be kept in the proceeding record, and a copy
should be sent to the relevant court.

In essence, Section 24 empowers the District Judge or High Court to

proactively intervene and transfer cases in the interest of justice and
efficiency, even if no formal application for transfer has been filed,
provided that valid grounds and principles are observed during the
transfer process.

Section 259 of the Code confers"the Supreme Court of India with the
authority to transfer suits or proceedings from one state to another
state's High Court or Civil Court."The following are the power and
procedure outlined in the given section:

1. Application for Transfer: The power to transfer suits or

proceedings under Section 25 CPC can be exercised in response
to an application filed by any of the involved parties. This means
that any party to the case can apply to the Supreme Court for the
transfer of a suit or proceeding from one state to another.
2. Notice and Hearing: Once such an application is filed, the
Supreme Court must send notice to all parties involved in the
case. After providing an opportunity for both parties to present
their arguments and objections, the court shall consider the
matter.
3. Grounds for Transfer: The Supreme Court may order the transfer
if it is convinced that such an order is necessary and expeditious
for the purpose of procuring the ends of justice. This implies that
the transfer should concur with the interests of justice and should
be in the best interest of a fair and just resolution of the case.
4. Interstate Jurisdiction: The primary purpose of Section 25 CPC is
to facilitate the transfer of cases between states within India. It
allows for cases to be moved from the jurisdiction of one state's
High Court or Civil Court to another state's High Court or Civil
Court when it is deemed necessary for the ends of justice.

This section ensures that the Supreme Court has the authority to
intervene and transfer cases when deemed necessary to uphold the
principles of justice and fairness.

EFFECT OF ORDER OF TRANSFER

An order of transfer becomes effective as soon as it is issued by the

court. It does not depend on whether the order has been formally
conveyed to the subordinate court. Once the order is issued, the case is
considered transferred to the designated court.
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COMPENSATION

If the application for transfer is dismissed, or if the court determines

that the transfer was not sought for valid or justifiable reasons, it has
the authority to order the party who applied for the transfer to
compensate the opposite party. However, the compensation should not
exceed Rs 2000 This provision is in place to deter frivolous or unjustified
transfer applications and to compensate the party who may have been
inconvenienced by the transfer request.

TRANSFER WHEN ALLOWED AND WHEN NOT ALLOWED

TRANSFER WHEN ALLOWED

1. Reasonable Apprehension of Injustice: If a party has a reasonable

fear that they may not receive a fair trial in the current court due
to bias or a charged atmosphere, the case may be transferred, as
established in Raghunandan v. G. H. Chawla.10
2. Balance of Convenience: In cases like Jotendro Nath v. Raj
Kristo11, where the convenience of the parties and the location of
the property favor a different court, the case may be transferred.
In this case, the parties were residents of Calcutta and so the case
was transferred.
3. Avoiding Multiplicity and Conflict: To prevent multiple
proceedings and conflicting decisions on the same cause of action,
as held in Rajulu v. Govindan.12 Wherein two persons filed suits
on same cause of action.
4. "Common Questions of Fact and Law: If multiple suits in different
courts involve common questions of fact and law that are
interdependent, they may be tried together for efficiency, as
in Purna Chandra v. Samantha.13"
5. Judge's Interest in One Party: When there is prejudice or
reasonable justification, as in Gujarat Electricity Board & Anr
v. Atmaram Sungomal Poshani14, a case may be transferred to
another Bench.

TRANSFER WHEN NOT ALLOWED

1. Mere Convenience: Transfer based solely on the convenience of

the applicant may not be a sufficient criterion, as held in Indian
Overseas Bank v. Chemical Construction Co.15
2. Judge's Remarks on Merits: Judges' opinions on case merits, as
in Gujarat Electricity Board & Anr vs Atmaram Sungomal
Poshani16, do not automatically justify transfer.

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3. Erroneous Judge's Order: An erroneous order does not necessarily

imply bias and may not be a ground for transfer, as per Madan
Lal v. Babul Lal.17
4. Opponent's Influence: The mere influence of an opponent in the
locality, as in Dr. Subramaniam Swamy v. Ramakrishna
Hegde, may not warrant transfer.
5. Distance from Applicant's Residence: The distance from the
applicant's residence, as seen in Arvee Industries v. Rata
Lal,18 is not a strong ground for transfer if the cause of action
originates from civil proceedings in the current court.

RELEVANT CASES

 In the case of M.V. Ganesh Prasad v. M.L. Vasudevamurthy19,

the court emphasized that the allegation of bias must be
reasonable, proper, and made in good faith by the petitioner
seeking the transfer of a suit. In other words, the petitioner must
have a genuine and valid reason to suspect bias on the part of the
judge. If the court finds that the petitioner's claim of bias is
unfounded, speculative, or made with malicious intent, the
application for the transfer of case may be rejected. The court
should carefully consider all circumstances surrounding the case]
to maintain the integrity and trustworthiness of the judicial
process when addressing transfer requests to ensure that they are
made for legitimate and justifiable reasons.
 In the case of Durgesh Sharma v. Jayshree20, the Supreme
Court clarified the scope of the power defined in Section 2421 of
the Code. The Court's ruling established that the power granted
under Section 24 does not allow a High Court to transfer a suit,
appeal, or any other legal proceeding from a court subordinate to
that High Court to a court that is not subordinate to it, under the
provisions of either Section 23(4) or Section 24 of the CPC.
 "In the case of Nahar Industrial Enterprises Ltd. v. Hong Kong
and Shanghai Banking Corporation22", the Apex Court clarified
that Section 24(5)23 of the CPC pertains exclusively to the inter-
state transfer of civil suits between civil courts. Such transfers
should only occur in exceptional circumstances when
jurisdictional issues demand it, with the overarching purpose of
ensuring justice rather than obstructing it through procedural
rules.
 In the case of Indian Overseas Bank v. Chemical
Construction24, the court ruled that when considering the
transfer of a suit, the primary factor to be taken into account is
the "balance of convenience." This balance of convenience should
not be limited to the convenience of either the plaintiff or the

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defendant alone but of both parties involved in the case. In other

words, the court should weigh the overall convenience and
fairness for all parties concerned when making decisions
regarding the transfer of a suit.
 "In the case of Guda Vijayalakshmi v. Guda Ramchandra
Sekhara" Sastry25,the petitioner, a wife seeking maintenance,
initially filed a suit as an indigent person (in forma pauper) in
Eluru, Andhra Pradesh. The respondent, her husband, then filed
a divorce case against her in Udaipur, Rajasthan. "The petitioner
subsequently filed a transfer petition under Section 25 of the CPC,
seeking to move the respondent's divorce case from Udaipur to
Eluru. The court determined that, in the interest of justice, it
would be convenient to transfer the respondent's suit from the
District Court in Udaipur to the District Court in Eluru so that
both cases could be heard together."26

CONCLUSION

The authority to transfer of suits must be exercised judiciously, with

careful consideration and a primary focus on serving the interests of
justice. The court's responsibility is to weigh and resolve conflicting
interests in a fair manner. The paramount concern is ensuring that
justice is served, and if the pursuit of justice necessitates the transfer
of a case, the court should not hesitate to do so.

The primary objective of our judicial system is the dispensation of

justice, and if the interests of justice require it, the court should not
hesitate to transfer a case. The court bears a moral responsibility to
maintain trust and confidence in the justice system. However, there are
certain limitations and circumstances under which case transfers can
or cannot be allowed, as they can introduce inconvenience and
complexity into the legal process. Relevant factors must be taken into
account when deciding whether a case should be transferred. These
factors may include the location of witnesses and evidence, the
convenience of the parties involved, the stage of the legal proceedings,
and the overall impact on the administration of justice. The objective of
the court is to achieve a fair and effective resolution of the dispute while
balancing the interests of the parties.

What is temporary injunction ?

Discuss the provisions relating to temporary injunctions under
CPC.
Temporary Injunction Meaning

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A temporary injunction is a court order that’s given while a case is

ongoing to keep things the way they are until the case is finally decided.
Its main purpose is to stop someone from causing serious harm to
another party during the legal process. This idea was made clear in the
case of “M/S Gujarat Pottling Co. Ltd. & Ors v. The Coca Cola
Company & Ors. (1995)”.
The rules for temporary injunctions are found in the Civil Procedure
Code of 1908 and here’s what they say:
 Section 94 of the law is about preventing interference with justice.
Part (c) deals with giving out temporary injunctions and has rules
for making sure people follow them, like putting someone in civil
prison or selling their property to make them comply.
 Section 95 allows the court to consider giving money to the
defendant if the plaintiff’s claim gets dismissed.
 Order 39 of the Civil Procedure Code (CPC) has a bunch of rules
about temporary injunctions.
Temporary Injunction in CPC
Temporary injunctions in India are regulated by the Civil Procedure
Code of 1908 and the specific rules for their grant and application are
as follows:
Order XXXIX, Rule 1: This rule allows the court to grant a temporary
injunction under CPC when it’s considered fair and appropriate to do
so in order to prevent a breach of an obligation or harm caused by a
genuine fear of such a breach.
Order XXXIX, Rule 2: This rule lays out the conditions that must be
met for a temporary injunction to be granted. These conditions include
having a strong initial case, a balance of convenience and the potential
for irreparable harm.
Order XXXIX, Rule 3: This rule explains the process for getting a
temporary injunction in CPC and what you need to do, including
submitting an application supported by a sworn statement.
Order XXXIX, Rule 4: This rule covers the court’s authority to seize
property when it’s necessary to ensure that a temporary injunction isn’t
undermined.
Order XXXIX, Rule 5: This rule allows the court to change or cancel a
temporary injunction at any point during the proceedings if it’s
appropriate based on the situation.
Order XXXIX, Rule 6: This rule deals with how long a temporary
injunction in CPC lasts. It can stay in effect until a specific time or until
the court says otherwise.
Order XXXIX, Rule 7: This rule explains what happens if someone
disobeys or violates a temporary injunction. It includes potential
contempt of court proceedings and other remedies for the harmed party.
These rules set out the structure for the granting and management of
temporary injunction under CPC. It’s crucial for both parties seeking or

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challenging a temporary injunction to be familiar with these rules and

follow the outlined procedures.
Grounds of Temporary Injunction in CPC
The case of Dalpat Kumar And Another v. Pralhad Singh And
Others (1991) has established three key requirements for application
for temporary injunction and granting a temporary injunction under
CPC. They are:
Prima Facie Case
This means that in a lawsuit, there must be a serious and disputed
question for a temporary injunction in CPC. The facts surrounding this
question should indicate a reasonable likelihood of the plaintiff or
defendant being entitled to relief. It’s important to note that a prima
facie case doesn’t require an irrefutable argument that’s certain to
succeed at trial. Rather, it means that the case presented for the
injunction should have sufficient merit to not be dismissed outright.
Irreparable Loss
If an individual were to suffer an irreparable loss related to the lawsuit
before their legal rights are determined at trial, it would result in grave
injustice. However, it’s essential to understand that losses such as the
sentimental value of an item typically won’t be considered irreparable.
On the other hand, damages that cannot be adequately remedied
through legal means, especially when there’s no fair or reasonable
solution, may be regarded as irreparable.
Irreparable harm can also refer to situations where the injury is ongoing
or repetitive, or where it can only be remedied through multiple legal
actions. Sometimes, the term “irreparable damage” relates to the
difficulty of quantifying the amount of harm suffered, but mere difficulty
in proving injury does not establish irreparable harm.
Balance of Convenience
The court must weigh the circumstances of both parties and compare
the potential harm or inconvenience that could result from withholding
the injunction versus granting it. In essence, the court should
determine whether the harm or inconvenience caused by not granting
the injunction would be greater than what could occur if it were granted.
These three requirements serve as important criteria for deciding
whether to grant a temporary injunction in legal cases.
In Mandati Ranganna v. T. Ramachandra (MANU/SC/7567/2008 :
AIR 2008 SC 2291), the court emphasised that when considering an
application for the grant of a temporary injunction in CPC, it’s not
sufficient to only consider the fundamental elements such as the
existence of a prima facie case, balance of convenience and irreparable
injury.
Granting an injunction is an equitable remedy and the court must also
take into account the conduct of the parties involved. Specifically, if one
party has remained silent for an extended period and allowed another

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party to exclusively deal with a property, they may not be entitled to an

injunction. The court will not intervene solely because the property in
question is valuable. The court’s primary goal is to protect the interests
of all parties involved.
In Paidsetti Bhanknarayna v. Paidsetti Rajeshwar Rao (AIR 1999
Ori 92), the court observed that it’s not always necessary for the
plaintiff to prove their absolute title to the property in dispute. It is
sufficient if the plaintiff can raise a legitimate question regarding the
existence of the right they claim.
Furthermore, if the plaintiff can convince the court that the property in
question should be preserved in its current condition until the legal
question is resolved, that may justify the grant of an injunction. This
highlights that in certain cases, a party seeking an injunction need not
establish full ownership but must show a genuine claim and a need to
protect the property during legal proceedings.
How Long Does Temporary Injunction Last?
The duration of a temporary injunction is determined by the court when
it grants the injunction. According to “Order XXXIX, Rule 6 of the Civil
Procedure Code of 1908,” a temporary injunction can remain in effect
until a specified time or until the court issues further orders.
The duration of a temporary injunction in CPC depends on the type of
injunction granted:
Pendente Lite Injunction: This type of injunction remains in force
until the conclusion of the ongoing legal proceedings and the final
decision of the court. If the lawsuit is dismissed, the temporary
injunction is also lifted.
Permanent Injunction Lawsuit: In cases involving a permanent
injunction, a temporary injunction issued by the court can be made
permanent as part of the final decree. This means that the temporary
injunction under CPC effectively becomes a permanent measure as
determined by the court’s final decree.
In summary, the validity of a temporary injunction in CPC varies based
on the nature of the injunction. For pendente lite injunctions, it lasts
until the conclusion of the legal proceedings, while in suits for
permanent injunctions, the temporary injunction may become
permanent through the court’s final decree.
Can an Injunction Be Granted to the Defendant?
The Supreme Court issued a notice in the case of Tamminedi
Ramakrishna Etc. v. N. Jayalakshmi. The central issue was whether
Defendant had the right to seek an injunction under Order XXXIX Rule
1 (c) of the Code.
The SLP (Special Leave Petition) challenges the Karnataka High Court’s
order, which affirmed the Trial Court’s decision and granted a
temporary injunction in favour of the Defendant under Order XXXIX
Rule 1 (a), (b) and (c) read with Section 151 of the Code. The High Court

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attempted to distinguish the three sub-rules of Order XXXIX Rule 1,

suggesting that sub-rules (b) and (c) provide remedies primarily for
Plaintiff, while sub-rule (a) is a more general provision.
Various High Courts have expressed differing opinions on whether a
Defendant can seek an injunction against a Plaintiff without filing a
counter-claim. The High Court of Travancore and Kochi (formerly) and
several other High Courts have held that a Defendant can request a
temporary injunction against a Plaintiff if their claim is related to or
incidental to the Plaintiff’s cause of action.
In the case of Ganga Bricks Udhyog v. Jai Bhagwan Swarup, the
Allahabad High Court granted interim relief to Defendant by requiring
Plaintiff to provide security for any potential losses incurred by
Defendant if the lawsuit ended unfavourably. This decision recognised
that Defendants could suffer harm if the claim was dismissed or if the
status quo was maintained during the lawsuit.
In conclusion, the Code provides various avenues for parties to seek
temporary injunctions under CPC. The legislature’s intent is evident in
the terms used in Order XXXIX Rule 1, which specifically allows
remedies for Plaintiff against Defendant’s actions or inactions under
sub-rules (b) and (c). Only sub-rule (a) is written in a neutral manner.
Consequently, the legislature intentionally distinguishes between
remedies available to Plaintiffs and Defendants under the Code.
Therefore, it would be inappropriate for the Court to rule in a manner
contrary to the legislative objective.
Can an Injunction Be Issued Against A Court?
Generally, courts are granted immunity from temporary injunctions in
CPC to protect their independence and ensure the proper
administration of justice. This principle is rooted in the concept of
judicial immunity. Courts and judges need certain protections to carry
out their functions without undue interference. However, there are
limited circumstances in which an injunction may indirectly impact a
court’s actions or decisions.
For instance, if a court exceeds its jurisdiction or violates established
legal principles, a party may seek relief from a higher court through
writs like certiorari or prohibition. These writs can indirectly affect the
proceedings of the court in question. Additionally, if a court is involved
in administrative or non-judicial functions, it may be subject to
injunctions in those specific contexts.
It’s essential to recognise that such situations are exceptional. In
general, courts enjoy immunity from injunctions to uphold the proper
administration of justice and safeguard the integrity of the judicial
process.
Conclusion
A temporary injunction in CPC is a court-issued order that temporarily
restrains a party from taking specific actions or compels them to do

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certain things for a limited period, typically until a final decision is

reached in a legal dispute. It aims to maintain the status quo,
preventing irreparable harm or injury to one party while a case is being
litigated. To grant a temporary injunction, courts assess whether there’s
a prima facie case, a balance of convenience and the potential for
irreparable harm. It’s a legal tool used to ensure fairness and protect
the rights of parties involved in ongoing legal proceedings.

Explain legal disability under Limitation Act.

Introduction
 The ‘Law of Limitation’ provides an aggrieved party with
the time limit for different suits within which the party can
approach the court for relief.
 The suit is dismissed by the competent court where the time
limit provided by the limitation act expires. A situation may exist
where, due to his physical or mental condition, the person is not
able to file a suit or make an application.
 In such cases, the law may not be the same and additional rights
and benefits may be accorded to individuals with disabilities.
 The concept of legal disability is provided under Section 6 of
the Limitation Act,1963 which further extends to Sections 7, 8
and 9.

Section 6 of the Limitation Act,1963

Legal disability —(1) Where a person entitled to institute a suit or
make an application for the execution of a decree is, at the time from
which the prescribed period is to be reckoned, a minor or insane, or
an idiot, he may institute the suit or make the application within
the same period after the disability has ceased, as would otherwise
have been allowed from the time specified there for in the third
column of the Schedule.
(2) Where such person is, at the time from which the prescribed period
is to be reckoned, affected by two such disabilities, or where, before his
disability has ceased, he is affected by another disability, he
may institute the suit or make the application within the same
period after both disabilities have ceased, as would otherwise have
been allowed from the time so specified.
(3) Where the disability continues up to the death of that person, his
legal representative may institute the suit or make the application
within the same period after the death, as would otherwise have been
allowed from the time so specified.
(4) Where the legal representative referred to in sub-section (3) is, at the
date of the death of the person whom he represents, affected by any
such disability, the rules contained sub-sections (1) and (2) shall apply.

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(5) Where a person under disability dies after the disability

ceases but within the period allowed to him under this section, his
legal representative may institute the suit or make the
application within the same period after the death, as would otherwise
have been available to that person had he not died.
Explanation —For the purposes of this section, ‘minor’ includes
a child in the womb.
The section deals with following types of disabilities:
 Minority
 Insanity
 Idiocy
Minority
 Minor is a person who has not attained the age of 18
years according to Indian Majority Act, 1875.
 The calculation of the age has to be done according to Section
3(2) of the Majority Act, 1875 - In computing the age of any
person, the day on which he was born is to be included as a whole
day and he shall be deemed to have attained majority at the
beginning of the eighteenth anniversary of that day.
Insanity
 It means unsoundness of mind or lack of the ability to
understand that prevents someone from having the mental
capacity required by law to enter into a particular relationship,
status, or transaction or that releases someone from criminal or
civil responsibility.
 In the case of S.K.Yadav v. State of Maharashtra (2009),
the concept of insanity has been dealt with in detail by
the Supreme Court and the court opined that only legal
insanity is recognized by law and not the medical insanity.
 Another case on the point of insanity is that of Hari Singh Gond
v. State of Madhya Pradesh (2008) in which the Supreme
Court categorized insanity into further four categories:
 When one is an idiot;
 When one is made non compos by illness
 When one is a lunatic or a mad man and
 When one is drunk.
Idiocy
A person who acts in an extremely foolish way is said to be an idiot.
Idiocy is not an acquired form of mental instability, rather a person is
an idiot since his/her birth.
Computation of Limitation Period in case of Legal Disability
Persons with insanity, minority and idiocy as disabilities
are exempted under Section 6 to file a suit or an application for the
execution of the order in the time prescribed by the law. They are
allowed to file a suit or an application when their
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disability has ceased and counting the period starts from the day
their disability comes to an end.
Who is entitled to the benefit of Section 6
It is only a person “entitled to the suit” who can claim benefit of legal
disability. Where the person dies with such disability the ‘Legal
Representative’ of such person may sue and all the rules provided
by Section 6 would apply to such legal representative as well.
Accrual of cause of action
 The provision provides that the plaintiff must be suffering from
the disability at the time when the cause of action accrues.
 In the case of Udhavji Anandji Ladha and Ors. v. Bapudas
Ramdas Darbar (1949) Bombay High Court held that Section
6 does not cover in any way any “intervening” kind of legal
disability. When a legal disability is in existence, only then
can Section 6 be successfully applied.
Section 7 of the Limitation Act,1963
Disability of one of several persons.—Where one of several persons
jointly entitled to institute a suit or make an application for the
execution of a decree is under any such disability, and a discharge can
be given without the concurrence of such person, time will run against
them all; but, where no such discharge can be given, time will not run
as against any of them until one of them becomes capable of giving such
discharge without the concurrence of the others or until the disability
has ceased.
Explanation I —This section applies to a discharge from every kind of
liability, including a liability in respect of any immovable property.
Explanation II —For the purposes of this section, the Manager of a
Hindu undivided family governed by the Mitakshara law shall be
deemed to be capable of giving a discharge without the concurrence of
the other members of the family only if he is in management of the joint
family property.
 Section 7 had to be taken as an exception to the general
principle set out in Section 6 and provides that if there were
several persons who were jointly entitled to file suits and if one of
them were disabled, the time would not run against either of them
until the disability ceased to exist. But if one of the persons
entitled to institute a suit was competent to grant discharge
without concurrence from others, then time would begin to run
against both of them.
Section 8 of the Limitation Act,1963:
Special exceptions — Nothing in Section 6 or in Section 7 applies to
suits to enforce rights of pre-emption, or shall be deemed to extend,
for more than three years from the cessation of the disability or the
death of the person affected thereby, the period of limitation for any
suit or application.

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 This provision provides that if the limitation period is extended

under Section 6 or 7 then in no case it should be extended for
more than 3 years.
 Also, the extension under Section 6 or 7 will not be applicable
to suits for pre-emption.
Section 9 of the Limitation Act,1963:
Continuous running of time —Where once time has begun to run, no
subsequent disability or inability to institute a suit or make
an application stops it: Provided that, where letters of administration
to the estate of a creditor have been granted to his debtor, the running
of the period of limitation for a suit to recover the debt shall be
suspended while the administration continues.

AFFIDAVIT
What is an affidavit?
An affidavit is a willingly made declaration in writing, signed by the
deponent (person making the affidavit) and accompanied by an oath
(vis-à-vis the authenticity of the contents). “Affidavit” has its roots from
a Latin word which literally means to “pledge ones faith.” It is to be
signed and witnessed (vis-à-vis the genuineness of the affiant’s
signature or his identity) by a notary authority. It is also signed without
any cross-examination by the affiant. The difference between an
affidavit and a deposition is that the former is voluntary but the latter
is not.
Another way to think of an affidavit is as a sort of written court
testimony. Where, in a court of law, you are required to place your hand
on a Holy Book and swear that you’re telling the truth and nothing but
the truth, similarly on an affidavit, you do this in writing. You’re under
oath, but you’re testimony is on paper. They are important in a way that
the oral submission/evidence/testimony is only admissible before a
judge but an affidavit can be used as an alternative to this.
However, misleading information in an affidavit can lead to perjury
charge against the affiant but if the affiant forgets to include something
or omits something then he cannot be penalized for such omission. If
the affiant mentions something in the affidavit which is not an
established fact or is not backed up by some evidence, then he will have
to mention that it is his ‘opinion’.
The law on affidavits in India is governed by Sec 139, Order XIX of the
Code of Civil Procedure and Order XI of the Supreme Court Rules.
Judiciary at many instances have upheld the importance of the veracity
of an affidavit by the virtue of the aforementioned rules and sections.
In 1910, Calcutta High Court in the case of Padmabati Dasi v. Rasik Lal
Dhar [1]adhered strictly to Order XIX Rule 3 of the CPC and laid down
that every affidavit should clearly express how much is a statement of

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the affiant’s knowledge and how much is a statement of his belief, and
the grounds of belief must be stated with sufficient particularity to enable
the Court to judge whether it will be correct to rely on such belief.
In another case, M/s Sukhwinder Pal Bipan Kumar and others v. State
of Punjab and other [2], this Court reiterated the aforementioned
principle and held that under Order XIX, Rule 3 of the Code of Civil
Procedure it was mandatory for the affiant to disclose the nature and
source of his knowledge and information with sufficient particulars. The
Court also held that in a petition where allegations are not affirmed, as
aforesaid, it cannot be regarded as supported by an affidavit as required
by law.
What is the notarization process for signing an Affidavit?
Affidavits need to be notarized. Notary Publics are not difficult to find,
your bank or credit union may even offer free notary services. Having
the document notarized is necessary, especially if it is to be used in
court. When you bring this form to a Notary Public, they will:
1. Check your ID to confirm that you are who you say you are
2. Administer an oath or affirmation
3. Verify that you appeared before the notary
4. Verify that they saw you sign the Affidavit
5. Note that you signed without duress
6. Verify that you swore or affirmed under penalty of perjury
AFFIDAVITS
1. Relevant law—The provisions of the Code of Civil Procedure, 1908,
on the subject of affidavits, are contained in Section 139 and Order XIX
of the Code.
2. Superior Court may send affidavit for attestation to a lower Court—
When an application for the attestation of an affidavit is presented to
any Court superior to the Court of Sub-Judge, 4th Class, such Court
may, if convenient, refer it for disposal to an inferior Court sitting at the
same place.
3. Affidavit exempted from Court-fees—No Court-fee or other stamp is
required upon an affidavit made for the immediate purpose of being filed
and used in any Court or before and other of any Court [(Indian Stamp
Act, 1899, Schedule I, Article 4, exemption (b)] and no fee has been
prescribed as chargeable for the attestation of an affidavit except as laid
down in paragraph 5 below.
4. Joint Affidavit—There is no legal objection to persons joining in a
single affidavit in whole or in part; but Courts or Magistrates should, in
such cases, be careful that each declarant deposes separately, and that
the certificate is adapted to the actual circumstances of the particular
case.

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5
(i) Under Section 139 (b) of the Code of Civil Procedure approximately
two to four legal practitioners at the Headquarters of each district and
one at each station where there is a Subordinate Judge, are appointed
as Commissioners for the purpose of administering oaths and
affirmations with the previous approval of the High Court. Oath
Commissioners may also be appointed at Headquarters of Tahsils where
there are no Subordinate Judges. At each of the District Headquarters
in Punjab and Delhi, one of the Oath Commissioners appointed should
be a lady lawyer, if one is available for appointment.
(ii) Such Commissioners are ordinarily appointed from among legal
practitioners but not men in large practice. They will ordinarily be
appointed for a period of three years in the first instance, but if their
work is satisfactory, their appointment may be renewed from time to
time for further periods of three years each, or until the further orders
of the High Court, whichever is earlier.
(iii) Commissioners may charge a remuneration of annas eight in cash
for each affidavit and shall keep a register in the form prescribed in
paragraph 7 infra in which all affidavits shall be entered. A written
receipt for the amount paid shall be given by the Commissioner to the
deponent. The receipt shall be in a printed form consisting of foil and
counterfoil, the foil being handed over to the person paying the money
and the counterfoil being kept by the Commissioner for purposes of
inspection.
The above charge will be in addition to any stamp duty payable on the
affidavit under the Indian Stamp Act, 1899, Schedule I, Article 4.
6. Attestation of affidavits by process serving and other officials—In
order to facilitate the verification of affidavits of serving officers made
under Order V, Rule 19, or Order XVI, Rule 10, of the Code of Civil
Procedure, the State Government has empowered the Court of the
Subordinate Judge of the First Class in charge of the Nazarat to appoint
an officer subordinate to itself to administer oaths to process-servers,
bailiffs, naib-nazirs and nazirs making affidavits of service of summons,
notices and other processes under the Code of Civil Procedure.
In the case of such affidavits and of all other affidavits made by officers
of the Courts in their official capacity, no application, such as is referred
to in paragraph 2 is necessary.
7. Register of affidavits—A register of affidavits, in the following form,
should be maintained at the head quarters of every district and at each

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Court at a distance from headquarters in which every application to

have an affidavit attested and every affidavit verified, should be entered:
8. Title of affidavits—
(i) Every affidavit to be used in a Civil Court shall be entitled:
“In the Court of . . . . . . . . . at . . . . . . . . . . . . (naming the Court and
place of sitting).

(ii) If there be a cause in Court, the affidavit in support of or in

opposition to an application respecting it shall also be entitled in the
cause, thus :— . . . . . . . . . . . Plaintiff against . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Defendant Claim: . . . .
. . . . . . . (naming the parties and stating the nature of the claim).

(iii) If there be no cause in Court, the affidavit shall be entitled :— “In

the matter of the petition of . . . . . . . . . . . . (name) paying . . . . . . . (brief
statement of subject)

(iv) Every affidavit shall be further entitled :—

“Affidavit of . . . . . . . .. .(name) made on this . . . . . . . ..day of . . . . . .
. . . . (date) before . . . . . . . . (name of attesting officer), at . . . . . .
(place).”

9. Contents of affidavits—
(i) Every affidavit containing any statement of facts shall be divided into
paragraphs, and every paragraph shall be numbered consecutively,
and, as nearly as may be, shall be confined to a distinct portion of the
subject.
(ii) Every person, other than a plaintiff or defendant in a suit in which
the application is made, making any affidavit, shall be described in such
manner as will serve to identify him clearly : that is to say, by the
statement of his full name, the name of his father, his profession or
trade, and the place of his residence.
(iii) When the declarant in any affidavit speaks to any facts within his
own knowledge, he must do so directly and positively, using the words
„I affirm‟ or „I make oath any say‟.
(iv) When the particular fact is not within the declarant‟s own
knowledge, but is stated from information obtained from others, the
declarant must use the expression “I am informed” ,—and, if such be
the case, should add „and verily believe it to be true’—or he may state
the source from which he received such information. When the
statement rests on facts disclosed in documents, or copies of documents
procured from any Court of Justice or other source, the declarant shall
specify the source from which they were procured, and state his

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information or belief as to the truth of the facts disclosed in such

documents.
10. Affidavits generally to be confined to facts which are within
defendant’s knowledge—
(i) Attention is drawn to Order XIX, Rule 3, which lays down that
affidavits shall be confined to such facts, as the deponent is able of his
own knowledge to prove, except interlocutory applications (See Order
XXXIX, Rules 6 to 10), on which statements of his belief may be
admitted : provided that the grounds thereof are stated.
(ii) All interlineations, alterations or erasures in an affidavit shall be
initialled by the person swearing it and the person before whom it is
sworn. Such interlineations, alterations or erasures shall be made in
such manner as not to obliterate or render it impossible or difficult to
read the original matter. In case such matter has been obliterated so as
to make it impossible or difficult to read it, it shall be re-written on the
margin and initialled by the person before whom the affidavit is sworn.
11. Identification of deponent—Every person making an affidavit shall,
if not personally known to the Court, Magistrate or other officer
appointed to administer the oath or affirmation, be identified to such
Court, Magistrate or officer by some person known to him; and such
Court, Magistrate or officer shall specify, at the foot at the affidavit, the
name and description of the person by whom the identification is made,
as well as the time and place of the identification and of the making of
the affidavit.
COMMENTS
Where the affidavit shows that the deponent had been identified before
the learned Magistrate by the Sub Inspector and the Magistrate had
attested the affidavit. The requirement of Rule 11 appears to be well met.
The word "attest" according to Concise Oxford Dictionary means "testify,
certify, put (person) on oath or solemn declaration, administer oath or
solemn declaration, administer oath of allegiance to, bear witness to". The
word "attestation" means "act of testifying, testimony, evidence, formal
confirmation by signature, oath, etc, administration of an oath". The word
"testify" means "bear witness to fact, give evidence".

So, the word "attested" written by the Magistrate would mean that the
deponent had been identified before him and he had administered oath
to him and testimony of deponent had been incorporated in the affidavit.
It was not necessary for the Magistrate to have appended any certificate
that he had read over and explained the contents of the affidavit to the
deponent who admitted the same as correct.

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The moment the Magistrate attested the affidavit the legal inference is
that he administered the oath to the deponent and also got affirmed
from the deponent that whatever is stated by him in the affidavit is
known to the deponent and the deponent was identified by a person
known to the Magistrate.
Waisuddin vs. State (Delhi Admn.) 1990 (19) DRJ 85 :1990 (42) DLT
176 : 1991 CrLJ 134. 12. Mode of attestation—The Court, Magistrate,
or other officer as aforesaid, before whom an affidavit is made, shall
certify at the foot of the affidavit the fact of the making of such affidavit
before him, and shall enter the date and subscribe his signature to such
certificate, and shall, for the purpose of identification, mark, date, and
initial every exhibit referred to in the affidavit. The name of the verifying
authority must be signed in full, and care must be taken that his proper
designation as a Civil Court or Magistrate is added.
13. Female deponents—An affidavit purporting to have been made by a
female declarant, who has not appeared, unveiled before the Court,
Magistrate, or other officer as aforesaid, before whom the affidavit is
made, shall not be certified, unless and until she has been duly
identified before, and an affidavit of her identity by the person
identifying her has been made before, and certified by such Court,
Magistrate, or officer.
14. Attesting officer’s duty—If any person making an affidavit appears
to the Court, Magistrate, or other officer administering the oath or
affirmation, to be ignorant of the language in which it is written, or to
be illiterate, or not fully to understand the contents of the affidavit, such
Court, Magistrate, or officer shall cause the affidavit to be read and
explained to him in a language which both he and such Court,
Magistrate or officer understand; either doing so himself, or causing
another person to do so in his presence. When an affidavit is read and
explained as herein provided, such Court, Magistrate or other officer as
aforesaid shall certify in writing at the foot of the affidavit that it has
been so read and explained, and that the declarant seemed perfectly to
understand the same at the time of making it.
15. Attesting signing and verification of affidavits—Every affidavit shall
be signed or marked and verified at foot by the deponent and attested
by the Court, Magistrate or other officer administering the oath or
affirmation. Every page of the affidavit shall be signed by the deponent
and initialled by the attesting Officer. The verification by the deponent
shall be in one of the forms attached hereto, and shall be signed or
marked by the deponent. The attestation of the Court, Magistrate or
other officer administering the oath or affirmation shall also be in the
form prescribed.

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16. Manner of administering oath to deponent—In administering an

oath or affirmation to the declarant in the case of any affidavit under
the Code of Civil Procedure, the Court, Magistrate or other officer
appointed in that behalf shall be guided by the rules under the Indian
Oaths Act, 1873.

interim order.

Counterclaim
 It is enshrined in Order VIII Rule 6A – 6G of the CPC.
 The 27th Law Commision Report of 1964 recommended to set-
up a right to file counterclaim in the civil procedure a right for
the defendant.
 As an aftermath of the recommendation, CPC (Amendment) Act,
1976 added rules 6B to 6G to the existing act.
Concept of Counterclaim
 It is a claim which is independent in nature or can be separated
from the claim of the plaintiff.
 When the cause of action arises against the plaintiff the
defendant gets the right to submit that claim along with the
written statement.
 It is considered as a plaint by the defendant against the claim of
the plaintiff and is dealt with in the same manner as a plaint.
 Furthermore, the plaintiff has an opportunity to file a written
statement against the plaint consisting of the counterclaim.
 The Supreme Court held the right to file a counterclaim a
statutory right, in Laxmidas v. Nanabhai (1964).
 The Delhi HC in the case of Gastech Process Engineering Pvt.
Ltd. v. Saipem (2009) deciphered it as a weapon in the hand of
the defendant.

Purpose of Counterclaim
 To stop the multiplicity of suits.
 To save the time of the court of law.
 To make the civil procedure convenient for parties.
 To make the timely trials.
Time of Filing Counterclaim
 A counterclaim can be filed in three situations aligned below: -
 before or after filing the suit,
 before the defendant has delivered his defence,

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 before the time limited for delivering his defence, expired.

Modus of Filing Counterclaim
 By amending written statement with the leave of the court and
setting up counterclaim;
 By mentioning into the subsequent pleading prescribed
under Order 8 Rule 9.
Essentials of Filing Counterclaim
 It must be filed by the defendant.
 It must for an independent or a claim that is separable in nature.
 It must be filed against the plaintiff. It can be filed against co-
defendants in some scenarios.
 It must be in respect of any incident that happened before or after
the filing of the suit.
 It cannot be filed at the appellate stage before the appellate
authority.
Difference Between Counterclaim and Set Off
 Order 8 Rule 6A mentions “Such counterclaim 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 counterclaim" whereas in Set-off, the written
statement has same effect as a plaint in cross-suit.
 In Set-off the suit must be for recovery of money and the claim
must be for a mutual debt but it is not the case of a
counterclaim.
 Set-off is classified into two categories that are legal set-off and
equitable set-off whereas there is no such segregation in the case
of a counterclaim.
 Set-off must arise out of same transaction but the counterclaim
is not required to arise out of same transaction.

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Explain mis-joinder and non-joinder of parties in a suit. When

would non-joinder of party to be fatal to a suit.
CHAPTER 6
JOINDER OF PARTIES, ETC.
Institution of Suit: Order IV
Section 26 and Order IV deals with institution of suits. Where Order I
provides for parties to the suit. It also provides for addition, deletion and
substitution of parties, joinder, non-joinder and mis-joinder of parties
and also objection as to non-joinder and misjoinder of the parties.
Order II lays down rules relating to frame of suit, splitting and joinder
of claims, joinder of cause-of-action and objection as to misjoinder.
Every suit must be instituted by the presentation of a plaint in duplicate
or in such manner as may be prescribed by the Code of Civil Procedure,
1908 by the plaintiff himself or by his pleader or by his agent or
recognized person. Therefore, generally a proceeding does not
commence until a plaint is not filed by a person in a court of competent
jurisdiction.
Parties to the Suit - Order I
Order I is about the subject of parties to suits and about the joinder,
mis-joinder and non-joinder of parties and to some extent, with the
joinder of cause-of-action.
Joinder of parties: All persons may be joined in one suit as plaintiffs
where (a) any right to relief in respect of, or arising out of, the same act,
or transaction or series of acts or transactions, is alleged to exist in such
persons whether jointly severally or in alternative; and (b) if such
persons brought separate suits, any common question of law or fact
would arise.
Illustration.--
An altercation takes place between A on one hand and B and C on the
other hand. A assaults B and C simultaneously. B and C may join
plaintiffs in one suit for damages against A for that tortious act since
both the above conditions are fulfilled.
But when it appears to the court that any joinder of plaintiffs may
embarrass or delay the trial of the suit, the court may put the plaintiffs
to their election or order separate trials or make such orders as may be
expedient.
Joinder of Defendants - Order I, rule 3
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Q. Differentiate between necessary and proper parties. Discuss

effect of non-joinder of necessary party or proper party.
Who may be joined as defendants.--
All persons may be joined in one suit as defendants where--
(a) any right to relief in respect of, or arising out of, the same
act or transaction or series of acts or transactions is alleged
to exist against such persons, whether jointly, severally or
in the alternative; and
(b) if separate suits were brought against such persons, any
common question of law or fact would arise.
In case of Govindaraju v. Alagappa, MANU/TN/0160/1926 : AIR 1926
Mad 911: (1926) 51 MLJ 194, while interpreting the two basic
conditions for Order III, the court held that, the word 'and' makes it
clear that both the conditions are cumulative and not alternative. So for
inducing the provisions of Order III, both the conditions should be made
out explicitly.
It says that: All persons may be joinded in one suit as defendant if the
following two conditions are satisfied:
(1) the right to relief alleged to exist against them arises out of the
same out or transaction; and
(2) the case is of such a character that, if separate suit is brought
against such persons, any common question of law or fact would
arise.
Illustration: B, C, E and D each separately entered into an agreement
with A to supply 100 tins of oil. They failed to supply the goods. A cannot
join B, C, D and œ as defendants in one suit for damages as much as
there are from distinct contracts and therefore, four different
transactions.
Before going into the question of non-joinder and mis-joinder of parties,
it is necessary to understood the terms - "Necessary party" and "Proper
party". A "necessary party" is one whose presence is indispensable for
proceeding with the suit and for final decision thereof, on the other hand
"proper party" is one in whose absence an effective order can be passed,
but whose presence is required for complete and final decision of the
suit.
In case of Hardeva v. Ismail, MANU/RH/0036/1970 : AIR 1970 Raj 167
two tests have been mentioned for determining the question whether a
particular party is a necessary party to a proceeding:

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(1) there must be a right to some relief against such party in

respect of the matter involved in the proceeding in question; and
(2) it should not be possible to pass an effective decree in absence
of such a party.
Order I, rule 8 provides that there are numerous persons having the
same interest in one suit, one or more or such persons may with the
permission of court sue on behalf of or for the benefit of all persons so
interested. Bhupendra Singh Babera v. Municipal
Council, MANU/CG/0051/2001 : AIR 2002 Chh 7.
Mis-joinder or non-joinder of parties (Order I, rule 9)
Order I, rule 9 says: "No suit shall be defeated by reason of the
misjoinder or non-joinder of parties, and the court in every suit may
deal with the matter in controversy so far as the rights and interests of
the parties actually before it:
Provided that nothing in this rule shall apply to non-joinder of a
necessary party.
So, where a person, who is necessary or proper party to a suit has not
been joined as a party to the suit, it is a case of non-joinder. Conversely,
if two or more persons are joined as plaintiffs or defendants in one suit
in contravention of Order I, rules 1 and 3 respectively and they are
neither necessary party nor proper party, it is a case of mis-joinder of
the parties.
Order I, rule 13, provides that all the objections on the ground of
nonjoinder mis-joinder of parties shall be taken at the earliest possible
opportunity and, in all cases where issues are settled, at or before such
settlement, unless the ground of objection has subsequently arisen, and
any such objection not so taken shall be deemed to have been waived.
Non-joinder (meaning) - Where a person who is a necessary party to a
suit has not been joined as a party to the suit, it is a case of non-joinder.
A suit should not be dismissed on the ground of non-joinder.
But if the decree cannot be effective without the absent parties, the suit
is liable to be dismissed. In case where the joinder of a person as a party
is only a matter of convenience, the absent party may be added or the
suit may be tried without him.
Mis-joinder - Where there are more plaintiffs than one and they are
joined together is one suit, but the right to relief in respect of, or arising
out of, the same act or transaction or series of acts or transactions
alleged to exist in such persons does not arise out of the same act, or
transaction and if separate suits were brought, no common question of
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law or fact would arise, it is case of mis-joinder of plaintiff. Misjoinder

of defendants takes place in reverse position.
In case of B.P. Rao v. State of Andhra Pradesh, 1985 Supp (1) SCC
432: MANU/SC/0330/1985 : AIR 1986 SC 210: 1985 (51) FLR 501:
1985 Lab IC 1555: (1985) 2 SCALE 256: (1985) Supp 2 SCR 573, it was
held by the Supreme Court that, where the affected persons had not
been joined as parties to the petition, and some of them only were
joined, the interests of the persons who were not joined as parties were
identical with those persons who were before the court and were
sufficiently and well represented, and therefore, the petition was not
liable to be dismissed on that ground alone.
Striking Out, Adding or Substituting Parties - Rule 10
Order I, rule 10, provides for the procedure for striking out, adding or
substituting the parties to the suit.
To bring a case within this sub-rule, the following two conditions must
be satisfied--
(1) The suit has been filed in the name of a wrong person as
plaintiff by a bona fide mistake; and
(2) The substitution or addition of the plaintiff is necessary for the
determination of the real matter in dispute.
Illustration - C the agent of A, under a bona fide mistake files a suit
against B in his own name. The Court can substitute the name of
principal A for that of the original plaintiff.
Provisions for striking out or adding parties are governed by sub-rule
(2) of rule 10 of Order 1. It lays two grounds for enforcement of the
provisions--
(1) such person ought to have been joined as a plaintiff or
defendant, and is not so joined; or
(2) without his presence, the question involved in the suit cannot
be completely decided.
Such amendments may be allowed by the court at any stage of suit or
even at the appellate stage and upon such terms and conditions as it
thinks just. No person can be added as a plaintiff without his consent.
In Md. Sabir Ansari v. Sada Nanda Mandal, MANU/JH/0619/2009 :
AIR 2010 Jhar 43, the present petitioner is having an agreement to sale
in his favour for part of the land involve in the Title Suit. Therefore, he
is claiming right, title and interest upon the land which is a suit

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property of the said suit. He was also filed as many as four different
Title Suits for specific performance against some of the respondents on
the basis of agreement to sale. All these agreements were before the
Trial Court in different Title Suits. This aspect of the matter has been
lost sight of by the Trial Court while dismissing the application preferred
by the present petitioner. Without joining the present petitioner, no
effective decree could be passed by the Trial Court after arriving at
conclusion of the dispute between the parties. The petitioner ought to
have joined as a defendant. Chances of success of the petitioner ought
not to have been evaluated at this stage. The Trial Court has to look at
the fact that if the applicant can show a fair semblance of the title or
interest, he can be impleaded as a party defendant.
In Babulal Khandelwal v. Balkishan D. Sanghvi, AIR 2009 SC 67, the
Court while appointing an Administrator in an administration suit to
administer the Estate of the decease, who dies intestate, may be
required to examine transactions involving the properties of the Estate
in order to determine the assets of the Estate as on the date of death of
the owner thereof. Consequently, the impleadment of persons who may
be involved in some transaction on the other concerning the Estate of
the deceased, may become necessary for a decision in an administration
suit. Therefore, the High Court had not committed any error in allowing
the amendments to the plaint for impleading the appellants as parties
to the administration suit filed by the respondent and for scrutinizing
the transactions which were alleged to have been concluded by the
parents of the respondents during their lifetime.
In Laxmi Shankar v. Yash Ram Vasta, MANU/SC/0254/1993 : AIR
1993 SC 1587: 1993 (2) ALT 9 (SC): (1994) 1 GLR 25: (1993) 1 SCALE
26: MANU/SC/0254/1993 : (1993) 3 SCC 49, Supreme Court, after
relying upon the judgment of Pal Singh v. Sunder
Singh, MANU/SC/0404/1989 : AIR 1989 SC 758: ]T 1989 (1) SC 67:
(1989) 1 SCALE 36: MANU/SC/0404/1989 : (1989) 1 SCC 444: (1989)
1 SCR 67: 1989 (1) UJ 316 (SC), wherein it was held that when other
co-owner did not object to eviction, one co-owner could maintain
eviction petition in the absence of other co-owner. Similarly in A.
Vishwanath Pillai v. Special Tahsildar for Land Acquisition No.
IV, MANU/SC/0436/1991 : AIR 1991 SC 1966: JT 1991 (3) SC
575: 1991 (2) KLT 444 (SC): 1992 (1) MLJ 1 (SC): (1991) 2 SCALE
286: MANU/SC/0436/1991 : (1991) 4 SCC 17: (1991) 3 SCR 465: 1991
(2) UJ 470 (SC), it was held that co-owner could successfully file suit
and recover the property against stranger, held that in the absence of
necessary proof it can not be held that suit is not maintainable on the
ground of non-joinder of necessary party.

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Coming now to case in hand only issue for determination is whether

plea of defendant (B) in the suit that necessary parties have not been
joined is sustainable. In his written statement defendant (B) has
produced pedigree table. However, to substantiate his plea, B has not
led any evidence as to necessary party. A vague statement of B could
not be considered sufficient for attraction of provisions of Order I, rule
9 of the Code of Civil Procedure, 1908. On the other hand Revenue
Record shows that there were no other legal heirs of A except, C, D and
G at the time of sale of suit property to plaintiff (H). Therefore, in the
absence of any proof that there are other co-owners and are necessary
parties, the suit can not be dismissed for non-joinder of necessary
parties.
'Necessary party' and 'Proper party': Distinction
There is essential distinction between 'Necessary Party' and 'Proper
Party'. A 'Necessary Party' is one whose presence is indispensable or
against whom relief is sought and without whom no effective order can
be passed. A 'Proper Party is one in whose absence an effective order
can be passed but whose presence is necessary for complete and final
decision on question involved in proceedings.
Order I, rule 9 of the Code of Civil Procedure, 1908 reads: No suit shall
be defeated by reason of the mis-joinder or non-joinder of parties, and
the Court may in every suit deal with the matter in controversy so far
as regards the rights and interests of the parties actually before it:
Provided that nothing in this rule shall apply to non-joinder of a
necessary party.
Therefore, general rule is that no suit can be decided without necessary
parties to it. However, rule 10 of Order I of the Code of Civil Procedure,
1908, provides for substitution or addition of parties to suit on either of
the following two grounds:
(i) He ought to have been joined as plaintiff or defendant and is
not so joined; or
(ii) without his presence, the question/issue involved in the suit
cannot be completely decided.
REPRESENTATIVE SUIT (ORDER I, RULE 8)
A "representative suit" may be defined as:--
"a suit filed by or against one or more persons on behalf of
themselves and others having the same interest in the suit."

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The object of this provision is to facilitate the decision of questions in

which a large number of persons are interested without recourse to the
ordinary procedure. Order I, rule 8 of the Code of Civil Procedure, 1908
has been framed in order to same time and expense, to ensure a single
comprehensive trial of question in which numerous persons are
interested and to avoid harassment to parties by a multiplicity of suits;
Teja Singh v. Union Territory of Chandigarh, AIR 1982 P&H 169.
Q. What do you mean by 'representative suit'?
In V.J. Thomas v. Pathrose Abraham, AIR 2008 SC 503, the plaint is
not before the Supreme Court. The application purported to have been
held by the applicant under Order I, rule 8 is also not before it. The
Court held that suit filed in terms of Order I, rule 8 should ordinarily be
premised on the ground that the defendants represent the parties
interested in the suit. Defendants in such a suit, although, must be able
to represent the public in general, but no personal decree can be passed
against them. To what extent the original defendants were interested in
the suit property at least in respect of the portion thereof is not known.
Whether the service of notice was proper would also be the subject-
matter of an enquiry by the learned Trial Court. It has also to be seen
whether the notice in terms of Order I, rule 10 of the Code was
published in a newspaper having a wide circulation in the locality. For
the purpose of examination of said question, amongst others, the
executing Court has allowed the application for impleadment of the
respondents so as to enable them to press their applications for setting
aside the ex parte decree upon condonation of delay. The Supreme
Court does not see any reason to interfere therewith in exercise of its
discretionary jurisdiction under article 136 of the Constitution of India.
So, to bring a case within the provisions of Order I, rule 8 of the Code
of Civil Procedure, 1908, all the members of a class should have a
common interest in a subject-matter and a common grievance and the
relief sought should, in its nature, be beneficial to all.
Following conditions may be summarized to understand the object of
the provision;
(1) The parties must be numerous.
(2) They must have same or common interest in suit.
(3) Permission must have been granted on direction must have
been given by the Court.
(4) Notice must have been issued to the parties concerned.
Order II, rule 2.--
It provides that every suit shall include the whole of the claim which the
plaintiff is entitled to make in respect of the cause-of-action; but the
plaintiff may relinquish any portion of his claim in order to bring the
suit within the jurisdiction of any Court. Thus, a plaintiff is not entitled
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to split his cause-of-action in two parts and bring separate of any

portion of his claim arising from the same cause of action.
The following conditions are essential for attracting the provisions of
Order II, rule 2 of the Code of Civil Procedure, 1908:
(1) that the second suit is in respect of the same cause of action
as that on which the previous suit was based;
(2) that in respect of the cause of action, the plaintiff was entitled
to more than one relief; and
(3) that the plaintiff without the leave of the Court omitted to sue
for the relief for which the second suit has been filed.

Fundamental principles of pleading.

In the court of law, pleadings serve as the case's skeleton or its basis.
Pleadings are specifically covered in Order VI of the Code of Civil
Procedure, 1908 and it talks about Pleadings in General. Order VI
contains 18 rules altogether. According to the provision of this act,
pleading means a plaint or written statement.

In the case of Maria Margarida Sequeria Fernandes v. Erasmo Jack

De Squeria[1]it was stated that- Pleading being the foundation of
litigation must contain only relevant material by excluding irrelevant
and unnecessary information.
 Rule 1 talks about Pleading.
 Rule 2 outlines the basic principle of Pleading.
 Rule 3- 13 mandates the parties to provide with the required
documents.
 Rule 14-15 covers the signing and verification of pleading
respectively.
 Rule 16 grants the power to the court to strike out pleadings at
any stage of proceedings.
 Rule 17-18 talk about the amendment of pleadings.
According to P.C. Mogha - pleading is a statement in writing drawn up
and file by each party in any suit. It includes all those things upon
which the suit is a frame and the defendant submit his own written
statement. The initial stage of a lawsuit called pleading, parties formally
present their claims and defences.

In this, a plaintiff submits a complaint, or plaint, outlining their cause

of action and the issues at hand. The defendant provides a written
statement in response outlining his or her defences and denies. A
counterclaim naming a cause of action against the plaintiff may also be
submitted by the defendant. An essential purpose of pleadings is to
inform the defendant that a lawsuit has been filed against him.
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Additionally, it informs the plaintiff of the defendant's plans in relation

to the lawsuit.

Objective
Pleading helps the parties understand the details of the claim made
against them by the adverse party, saving time and money. In the past,
when pleadings were not common and parties used to argue their case
in court, it occasionally happened that parties took a long time to
respond to claims because of the sudden and new arguments of the
opposing party. The main goal of pleading is to focus on the key issues
and paint a precise picture of the case, which improves and speeds up
the court process.

The pleadings assist both parties in understanding their points of

contention and where they diverge so that they can present the most
pertinent arguments and evidence in court. In the case of Throp v.
Holdsworth it was held that:

The whole object of pleading is to bring parties to an issue and the

meaning of the rules relating to pleadings was to prevent the issues
bring enlarged, which would prevent other parties from knowing when
the cause came on for trial, what the real point to be discussed and
decided.

Fundamentals Of Pleading
Sub-rule (1) of Rule 2 (order VI) states the fundamentals of
pleadings:
1. The first fundamental of rule of pleading is that it should only
state facts and not the law.
2. The facts that are stated in the pleading must be material facts.
3. It should never state or disclose the evidence.
4. The facts stated in the pleading must be in a concise form.

Facts and not law

In the case of Kedar Lal v. Hari Lal the Supreme Court ruled that in a
civil lawsuit, the parties are only required to describe the events that
occurred and the basis for their claims in their pleadings; it is the
judiciary's responsibility to apply the law. It implies that the parties
should outline their claims and the reasons why they should be
accepted.

Material facts- The term "material fact" is not specifically defined in the
CPC, 1908 or any other law. In Udhav Singh v. Madhav Rao
Scindia,[5] the Supreme Court provided the following definition of

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"material fact": According to the court, "material facts" are all those
important details that the parties rely on to support their claims and
establish their causes of action or to make a strong defence or
counterclaim against the party making the initial claim.

The courts have noted that determining what facts or information

qualifies as a material fact is a subjective matter that will be decided by
the court on an individual basis depending on the facts and
circumstances of each case.

Facts and not evidence

This rule mandates that the evidence in the pleadings be excluded. In
other words, the party is not required to mention the witnesses or
documentary evidence that it intends to present to the court in order to
use against the opposing party. This is done to guarantee the safety of
the evidence and the fairness of a trial. According to jurisprudence,
there are two different types of facts: facta probanda and facta
probantia.
 Facts probanda: material facts
 Facts probantia: evidence
Concise form- The last and most important fundamental rule, also
known as the "rule of brevity," calls for the pleadings to be concise,
clear, and limited to the interpretation that the pleader wishes to
convey. Not only should the pleading be brief, but it also needs to be
precise. Even though the pleading must be concise, it must also be
accurate and certain. For the sake of brevity, pleadings shouldn't be
compromised in terms of clarity and specificity. However, this does not
imply that the facts that must be stated are so brief as to lose their
significance in the pleadings.

The very goal and objectives of pleading are to discover the true source
of controversy and it would be defeated if there is a lack of precision in
the arguments. The Golden Rule of pleading states that the facts must
be presented in such a way that neither important nor irrelevant
information is left out or included.

The Supreme Court made the following observation in the case

of Virendra Kashinath v. Vinayak N. Joshi: "Pleadings must be brief
and niggling [i.e. causing slight but persistent annoyance, discomfort,
or anxiety should be avoided.]" However, this does not imply that crucial
information must be left out or overlooked in an effort to achieve brevity.
According to the court, if syntax errors and drafting style are avoided,
pleadings can be clear and legible.

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Other Rules Of Pleading

Rule 3 to Rule 16 (Order VI) talks about other rules of pleading:
 Specific details with regard to dates and items should be
mentioned in the pleadings in a case for misrepresentation,
criminal breach of trust, fraud, or willful default in payment of
due.

 It is not necessary to mention a condition precedent to filing a

lawsuit if it has been satisfied. If it is not, it is crucial to mention
the fact and provide justifications. For instance, no legal action
against the government may be brought without two months'
notice under Section 80 of the CPC. Therefore, the plaintiff must
mention this as well as the reason for non-adherence if the notice
is not served.

 If no new allegations or grounds for a claim are added to the initial

pleadings, a pleading may be amended at a later stage of the
proceeding.

 Each pleading must be signed by the party whose pleading it is,

must be verified by the party whose pleading it is, and must be
accompanied by a sworn affidavit that serves as the party's
deposition.

 Documents need not be fully described in the pleadings unless

their content is crucial.

 When a person's malice, fraudulent intention, knowledge, or other

mental state is relevant, it may be alleged in the pleading only as
a fact without stating the specific circumstances from which it is
to be inferred. Such circumstances actually serve as material fact
evidence.

 When giving notice to a person is required or a condition

precedent, pleadings should only mention giving the notice; they
shouldn't specify its exact form or duration, or the circumstances
from which it should be inferred, unless those details are crucial.

 Implied agreements or relationships between people may be stated

as a fact, and a general plea should be made based on
correspondence, a conversation, or other evidence.

 It is not necessary to plead facts that the court presumes to be

true or that the other side must prove. Every claim must be signed

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by the claimant, one of the claimants, or his or her pleader.

 A party to the action must provide his address. He should also

include the other party's address.

 Each pleading must be verified on an affidavit by the party, one of

the parties, or a third party who is familiar with the case's facts.

 If a pleading is unneeded, scandalous, frivolous, vexatious, or has

the potential to jeopardise, embarrass, or delay a fair trial of the
case, the court may order that it be struck out.

 Where appropriate, forms from Appendix A of the Code should be

used. Forms of a similar nature should be used in cases where
they are not applicable.

 Each pleading should be divided into paragraphs that are serially

numbered. A separate paragraph should be used to state each
allegation or assertion. Dates, totals, and numbers should be
written both in words and in figures.

Amendment Of Pleading
Amendment of a pleading is covered by Rules 17 and 18 of Order VI of
the Code of Civil Procedure, 1908. These rules work to bring about
justice in society. According to Rule 17 of the Code of Civil Procedure,
1908, either party may be required to amend or alter his pleading at
any point during the proceeding in a fair and just manner, allowing
amendment when necessary to settle the precise contentious issue
between the parties.

Rule 18 deals with the problem of the pleading not being amended. It
deals with the law that states if a party is ordered by the court to make
a necessary change and fails to do so within the time limit specified in
the order, or if no time limit is specified, then within 14 days of the
order's date, he will not be allowed to amend after the time limit
specified above, or after such 14 days, as the case may be, unless the
time is extended by the court.

Conclusion
Any legal case's foundation is made up of pleadings. The pleading lays
out the case. It directs the parties to develop their arguments and
understand the other party's claims in order to frame claims or defences
for either party, as appropriate. It serves as direction for the entire suit
journey.

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They also specify what types of admissible evidence the parties may
present during the trial. The fundamental guidelines for pleadings are
set forth in the Code of Civil Procedure, along with any modifications.
These rules are intended to achieve justice's highest goals while
maintaining social harmony.

Explain the provisions of CPC with regard to attachment of

property before judgment.

There are times and situations which comes before the Court during the
proceeding of the suit when the Court has to make certain decisions
which do not have the life-long effect as it depends on the facts of the
case either the time is fixed by Court or until the final judgement is
passed as it remains in existence by the discretion of the Court.

As per section 94(e) of the Code of Civil Procedure, the Court has the
power to make interlocutory orders after the plaintiff files the suit and
before the suit is finally disposed off. The Court can ask for the
attachment of property, commissions, certain payment to me paid or
temporary injunctions as it is a legal process to ensure the satisfaction
of the judgement.

Though we hear attachment of property before judgement every day,

there are several intricacies also which we have to understand in detail.
The attachment of the property before judgement is covered under
Order 38 rule 5 of the Civil Procedure Court, 1908. It is important to
understand the leading cause for which a person is called for the
attachment of property before judgement. The primary purpose of an
attachment before the judgement is to enable the plaintiff to dispose the
amount of decree if one is eventually passed in favour of them.

The amount is ultimately made from the property of the defendant as

held in the case of Raman Tech And Progress Engineering
Corporation v. Solanki Traders [1]. The sole jurisprudence behind
Order38 rule 5 is to protect the interest of the plaintiff against the loss
that can arise from the defendant if he sells, and that is pending suit
property. An attachment before judgement is in the nature of an
interlocutory order.

The division bench of Hon'ble High Court of Andhra Pradesh held that
the attachment of the property should be specific and clear in its
purpose which was held in the case of Gurunadha Rao v Gamini
Krishnayya [2], Lordship Dawson-Miller C.J stated that: the power
given to the Court to attach a defendant property before judgement, is
never meant to be exercised lightly or without clear proof of the

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existence of the mischief aimed at in the rule which was later on

supported by the judgement Shivaraya and Others v Sharnappa and
others.

Later on, the Court said the that the interlocutory orders have to be
passed in the exercise of the Court sancillary powers which was followed
by the Court in case of Bankim Chandra and Others v Chandi
Prasad and Tavvala Veeraswamy's v Pulim Ramanna case also.

The Court can at any time of the suit ask for the attachment of property
for the satisfaction of the Court by affidavit so that the defendant with
intention does not delay the process of the Court or to delay the process
of execution of the degree if the Court passes an order against the
defendant or is about to abscond the local jurisdiction of the Court or
try to leave the country after disposing of the said property against
which the Order has been passed.

The grounds for the attachment of the property before the judgement is
passed are similar. However, the only difference is the property which
is attached by the defendant which must not be tempered, and there
should not be any prejudice caused to the plaintiff if the Order is passed
in his favour by the Court. This attached property by the Court before
judgement is appealable and revisable under rule 2,3 and 6 of order 39.

Since the attachment of property before judgement is itself are of

serious nature. However, still, the Court has to check whether two
precedents conditions are satisfied to pass such an order.

The Court should have reason to believe that the suit filed by the
plaintiff must be bona fide and his cause of action must be prima facie,
and, another condition the Court must have reason to believe that the
defendant will remove himself or sell the aforesaid property from the
ambit of the power of the Court if this extraordinary power of the
attachment of the property is not exercised. There are some exemptions
and circumstances, also where the attachment of property is not
allowed by the Court.

As in the case, where the unsecured debt is converted into the secured
debt or for ensuring the easy execution of the decree. Section 60 of
C.P.C. brings under its purview property that can be attached before
the judgement and the property that cannot be attached. All sealable
property can be attached i.e. lands, goods, money, cheques, promissory
notes, government securities, buildings debts and all other belongings
of the judgement debtor may be attached and sold in execution of a
decree against him by the Court.

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All other property can also be attached by the Court which does not
completely belong to the debtor, but the debtor has a disposing power
over it which can be exercised by the debtor for his benefit. The decree,
as mentioned in section 60 of C.P.C., is only a monetary decree and not
a mortgage decree. As per section 60(1) of the C.P.C. includes the
property that cannot be attached before the judgement, it includes an
exemption on necessary apparel, bedding, house of agriculturalists,
wages, pensions, right of future maintenance, salaries etc.

The Court cannot order for the attachment of any agriculture

production which is in possession of the agriculturist as held in case
of Pellur Venkatasubbamma V. Devvur Narayana Reddi the Court
dismissed the appeal filed by the plaintiff and said that nothing in this
Order should be deemed to authorize the plaintiff to apply for any
attachment of the agriculture produce by the agriculturist. The same
principle is later on followed in the case of Land Acquisition Officer
(S.D.C.) Soma alia Project Office, Rajampet Vs. Y.Vijaya Kumar .
Requirements of attachment
It is a well-settled fact that petitioner having a just or valid claim or a
prima facie case will not entitle the plaintiff to an order of attachment
before judgement unless the plaintiff also establishes that the defendant
is trying to remove or dispose of his assets with the intention of
defeating the decree that magistrate has passed.

Equally well settled in the position that even where the defendant is
removing or disposing of his assets an attachment before judgement will
not be issued if the plaintiff will not be able to satisfy that he has a
prima facie case. The provision Under order 38, rule 5 of C.P.C. is a
drastic and extraordinary power.

Such power should not be exercised mechanically for the asking. It

should be used sparingly and satisfy in accordance with the rule. Any
attempt by a plaintiff to utilize the provision of order 38 rule 5 as
leverage for coercing the defendant to settle the suit claim should be
discouraged. A defendant is allowed to deal with his property because
the suit is filed or about to be filed against him.

Shifting of property from one place to another or removal of machinery

to other premises by itself is not a ground for granting attachment
before judgement. The Court can order for the attachment of the
property, which is not in his jurisdiction. Section 136 of C.P.C.
envisages that the Court, with his discretion, can make an order of
attachment and send to the district court in whose jurisdiction that
property is situated. There is no such in the law which probate the
Court for attaching the property which does not lie in the territories of

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his jurisdictions a rule in the case of Durbhaka Venkatasubramanya

Sharma and another Vs. State Bank of India, Banking corporation[.

Principles relating grant of attachment of property

The Court would not be justified in issuing an order before judgement,
or for security merely because the Court thinks that no harm would not
be done. An allegation that the defendant was selling off his/her/their
properties is not sufficient for the Court to order an attachment of
property.

The power to attach the property before judgement should not be

exercised mechanically or merely for the asking as its an extraordinary
power covered under Order 38 rule 5 of C.P.C. and its purpose isn't
tochange an unsecured debt into a secured debt. The mere fact of
transfer is not enough since nobody can be prevented from dealing with
his properties, simply because a suit has been filed.

The Plaintiff must prove that the transfer is intending to delay or defeat
the plaintiff's claim. Its the duty of the plaintiff to show that his claim
is bonafide and also satisfy the Court that the defendant is trying to
dispose of the property with wrongful intention of obstructing or
delaying the process of execution of any order that may be passed
against the defendant before power is exercised under order 38 rule 5
of C.P.C.

The Court should also keep in view the principle relating factors before
granting the permission of attachment of property before the judgement
as a rule in case of Prem Raj Mundra v Md. Maneck Gazi[9] that the
attachment before judgement is considered as very harsh remedy as it
prohibits the defendant from dealing with his property before the final
resolution of the overall dispute is passed. The Court must look to the
conduct of the parties immediately before suit, to examine the
surrounding circumstances and draw an inference.

The mere removal of properties outside the jurisdiction is not enough

but where the defendant with notice of the plaintiff's claim suddenly
begins disposingof his properties outside the jurisdiction of the
appropriate Court without any other satisfactory reason as adverse
inference may be drawn against the defendant.

Therefore, the attachment before a judgement must be to prevent justice

transfer or alienation. The Court should be satisfied that the defendant
is about to dispose of whole or part of the property and that disposal is
intending to obstruct or delay the execution of the decree. Before
passing the Order for the attachment of the property before any

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judgement is given so that there should not be any prejudice caused to

both the parties.

When attachment before judgement can be ordered

As discussed in order 38 rule 5 that before exercising power under the
said rule, the Court should be satisfied that the claim by the plaintiff is
bonafide and there is a reasonable chance of Order being passed against
the defendant. If the plaintiff fails in proving the wrongful intention of
the defendant, then the Court will not go further and will not examine
that whether the interest of the plaintiff is protected or not by exercising
power under Order 38 Rule 5 of C.P.C.

It is a well-settled fact that just having a valid claim will not entitle the
plaintiff to an order of attachment before the judgement as it cause
prejudice with the other parties, it is essential to establish that the
defendant with wrongful intention is disposing off his property for
defeating the decree that may be passed against him. Therefore it is
essentialto prove by the plaintiff in the Court, the wrongful intention of
the defendant to invoke the Order of attachment before the judgement
is being passed.

Modes/ Procedure of Attachment

The first step for the attachment of property is to issue a prohibitory
order to the judgement debtor and the public generally, this Order will
restrict the judgement debtor for disposing of the attached property or
transferring it. The judgement debtor is also bound to attend the Court
on the date prescribed by the Court for deciding the terms of the
proclamation of sale.

Generally, for the immovable property two copies of the prohibitory

Order is sufficient for the attachment but, if the land is attached from
which the revenue is paid to the government three copies of prohibitory
is required to make the valid attachment of the property. Both the detail
must be given in the schedule attached with the Order and details
provided in the schedules of the property given in warrant should be
same.

Later on, this copy is to be submitted to the Nazir and Nazir will then
endorse the summons and return it to the Court within the stipulated
time. Where any individual deputed by the Nazir finished the above
work of attachment of property, a different report expressing the way
wherein, the day and hour at which he did such act must be attached.
The customary practice will be carried out for the proclamation of the
Order.

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The copy of it will be affixed on the conspicuous part of the property and
the Courthouse[10]After this, the reader has to record a note stating the
fact that all the legal formalities have been followed and have been
complied with it. The presiding officer will take charge to ensure that
the report given does not have any misinformation in it. The Court
should ensure that all the legal formalities have been completed to
prevent any sort of wrongdoing as it might affect the parties[11].

The civil Court also applies appropriate consideration in the process of

attachment of property and take necessary action if required. No
property can be declar to be attached until the court order for the
attachment of the property as held in the case of Muthiah Chettiar v
Palaniappa Chettiar[12] where the Court says that the things
prescribed in the code have to be followed.

The Court says that it is important to have an order of attachment by

the Court and in the execution of that order formalities prescribed
therein have to be complied with so that the judgement debtor could
not alienate the property and the plaintiff is not at any loss. When the
property attached is a movable property but not agriculture produce
then that property is seized by the attaching office which keeps the
attached property custody.

But, it the property that is seized by the officer is perishable, or if the

cost of keeping it will exceed the value then the attaching officer can sell
it immediately, and if the officer fails to sell off the property then he can
hand over the attached property custody to either of the parties and
that party will be liable to produce such property before the Court and
if any loss or damage caused to the attached property then the
custodian will be responsible for that loss occurred.

Whereas if the attached property is agriculture produce, then the copy

of the warrant of attachment can be affixed on the property on which
that crop is grown. It is the duty of the Court made in the application
the time at which that crop is being cut or gathered if the Court attaches
growing crops. The judgement debtor should make every essential step
for preserving it and if in case he fails to do so, then the decree-holder
can carry out these needful steps and can recover the expenses from
the judgement debtor.

As in case of Krishnamukhlal v Bhawan,[13]it was decided by the

Court that the attachment of agriculture land is invalid as Order 21 rule
54 of C.P.C. would not prevent the Court for selling of the properties as
the law doesn't state that an immovable property can't be sold in

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execution of a decree without attaching it.

Removal and determination of attachment

The property attached before the judgement can be deemed to be
withdrawn in the following cases.

a. the decreed amount, all cost, charges and expenses from the
attachment of property are paid into the Court, or
b. Satisfaction of the decree is made through the Court or certified
to the Court, or
c. the order is set aside or reversed.[14]

In the case of immovable property, the withdrawal of attachment can be

proclaimed by the judgement debtor, and copy of that can be attached
in a conspicuous part of the property. In the case where the Court
attaches the property and later on court order for dismissing such an
execution, then the Court will direct the status of the attachment, and
in case court fails to give a specific direction than it is implied that the
attached property has been ceased.

Private alienation of property after attachment and before the

judgement
Attachment of property creates no changes as it only confers a right on
a decree-holder to keep the attached property in the custodyof
theCourtas per the law. The rights of the judgement debtor to sell or
alienate of the attached property is taken by the Court, and it does not
confer any title on attaching the creditor. As per section 64 of C.P.C.

If the judgement debtor still alienates the attached property, then such
transfer is considered void by the Court as held in the case
of HamdaAmmal Vs. Avadiappapathar[15] if the Court makes any
attachment, then any private transfer or delivery of the attached
property or any interest therein and any payment to the judgement
debtor of any debt shall be void as against all claims enforceable under
the attachment.

The main objective of this section is to prevent the fraud caused by the
judgement debtor. The attachment of the property should be done in
accordance with the procedure prescribed by the C.P.C. In case
ofimmovable property, a mere order of attachment is not sufficient to
render subsequent transfer invalid must be made in a manner as
described in C.P.C. under Order 21 rule 54. But, this section does not
apply in the case where the agreement of alienation was already done
before the attachment as it does not affect the rights of the persons that
are not parties of the suit.

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The court rule in the case of J. Mathivanan and Ors. vs. Tamil Nadu
Khadi Village Industries Board and Ors[16] that attachment before
the judgement shall not affect the rights of the owner have prior to the
attachment, as it will be unfair with the parties that are not the part of
the suit.

The same question was arise in the case of Vannarakkal Kallalathil

Sreedharan Vs. Chandramaath Balakrishnan [17] and in Paparaju
Veeraraghavayya vs. Killaru Kamala Devi [18] that whether the
agreement of sale entered before the attachment of property by a
judgement debtor will be valid or not. The Courtheld that agreement to
the sale wouldve void if it is done with an intention to fraud the plaintiff.

Difference between attachment before judgement and attachment

after judgement
There is a slight difference between the attachment of property after and
before judgement as of the property which is attached by the Court
before the Court does not reattach judgement after the judgement. The
attachment made by the Court before judgement is not an attachment
for enforcement of the decree as it is a step for preventing the debtor
from disposing of the property or delay in the process of the Court.

As in the case of Parur Central Bank Ltd. v A.C Chavko[19](1989)

and S.P. Vasakumar Pillai v The Motor Accidents Claims [20](2008)
it was decided by the Court that an attachment made by the Court
before the judgement act as the security of the Court feels that
defendant is trying to sell his property with the intention of fraud with
the plaintiff. The attached property can later on used to satisfy the
decree, in case the order goes in favour of the plaintiff.

Whereas, an attachment made after the judgement is made for the

immediate purpose for concealing the degree into execution as held in
case of Sardar Govindrao Mahadik and Anr v Devi Sahai and Ors that
the attachment of property after judgement does not defeat the rights of
the defendant as the Order has already passed against him by the
Court.

Conclusion
The civil procedure code includes lots of procedures and modes of
attachment of different kinds of property. The attachment is the first
step, and then the sale is executed after the attachment but in few cases
the property can be sold without the attachment, which is not irregular.
Still, the right procedure is to be followed. Section 65 to 73 and Order
21 Rules 64-94 deals with the sale of the property. The Court appoints

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the officer to sell the property for the execution of the decree.

All the procedure dealing with the attachment of property is covered

under Order 21 of the Code with all its aspects. The decision of
attachment of the property by the Court in favour of the plaintiff is a
drastic action, and Court must take this decision with due care and
defendant should also be allowed to prove the cause why the Court
should not take his right to deal with his property within the time given
by the Court.

If he fails to show then, the Court can order for attachment of property
with a reason to believe that the judgement debtor with wrongful
intention is trying to dispose himself or his property from the
jurisdiction of the Court before giving Order of attachment under Order
38 rule 5 of C.P.C.

Therefore, it is clear that all the essential requirements for attachment

must be proven in the Court as pointed out in the decision of Renox
Commercials Limited v Inventra Technologies private
limited [22]that the defendant is trying to alienate the property or his
about to remove the property from the Court's jurisdiction with a
wrongful intention of causing an obstruction or trying to delay the
execution of the decree passed against the defendant.

For an order of attachment of property, it is also important for the

plaintiff to prove his plea is bonafide and the defendant is trying to
defraud him with his cause of action as held in case of R.Ramesh v
R.Ranveender[23]2014.

State the procedure to be followed in the event of death or

insolvency of either party to the suit.

Order 22 deals with the creation, assignment or devolution of interest

during the pendency of suits. It also applies to appeals, but not to
execution proceedings. The provisions of Order 22 are exhaustive. They
should, however, be liberally construed to serve the end of justice.

Such creation, assignment or devolution may arise in the following

circumstances:
i. Death of a party (rule 1 to 6, 10A)
ii. Marriage of a party (rule 7)
iii. Insolvency of a party (rule 8) or;
iv. Assignment of interest (rule 10)

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(I) Death Of Party: Rules 1-6

Order 22, Rules 1-6,9 and 10-A relate to death of a party, i.e. plaintiff
or defendant and consequences of such death. Where a party to a suit
dies, the first question which requires consideration is: Whether the
right to sue survives? If the right does not survives, the matter is over.
But if it survives, the suit will not abate.

Let us consider the effect of death of parties to suit.

a. Death of plaintiff
Where the sole plaintiff dies, the suit will not abate, if the right to sue
survives. It can be continued by the heirs and legal representatives of
the deceased plaintiff. If the right to sue does not survive, the suit will
come to an end.

Where one of the several plaintiff dies and the right to sue survives to
the surviving plaintiff or plaintiff�s, the court will make an entry to
that effect and proceed with the suit by surviving plaintiff or plaintiffs.

Where plaintiff dies after hearing and before pronouncement of

judgment, the suit shall not abate. The same principle will apply in case
of death of the plaintiff after passing of preliminary decree and before
final decree.

Once the final decree is passed, the rights of the parties are adjudicated
and the question is only of execution of the decree. The provisions
relating to abatement do not apply to execution proceedings; they,
however, apply to appeals.

b. Death of defendant
Where the sole defendant dies, the suit shall not abate if the right to
sue survives. It can be continued against the heirs and legal
representatives of the deceased defendant.
Where one of the several defendants dies and the right to sue survives
against the surviving defendant or defendants, or where the sole
surviving defendant dies and the right to sue survives, the court, on an
application by the legal representative of the deceased defendant, will
make him a party and proceed with the suit.

When no such application is made within the period of limitation (ninety

days), the suit shall abate as against the deceased defendant.

Where the defendant dies after hearing and before the pronouncement
of judgment, the suit shall not abate. The suit also does not abate on
account of an unnecessary party.

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c. Right to sue
As already noted, when a party to a suit dies, the first question to be
decided a weather the right to sue survives or not. If doesn't, there is an
end to the suit. If it does, the suit will not abate. It can be continued by
or against the heirs and legal representative of the deceased party.

The expression right to sue has not been defined in the Code, but it may
be interpreted to mean right to seek to relief. In other words, right to
sue survives if the cause of action survives or continues.

The general rule is that all rights of action all demands whatsoever,
existing in favour of or against a person at the time of his death, survive
to or against his representatives. But in case of a personal actions, i.e.
actions where the relief sought personal to the deceased or the rights
intimately connected with the individuality of the deceased, the right to
sue will not survive to or against his representatives. In these case, the
maxim action personalis moritur cum persona (a personal action dies
with the person) applies.

This principle is found in Section 37 of the Indian Contract Act, 1872

and Section 306 of the Indian Succession Act, 1925.

Thus, it has been held that the right to sue survives in a suit by a
landlord against his tenant for the possession of the rented house after
the death of the landlord; or in a suit for accounts against a trustee
where the trustee died; or in a suit for partition of ancestral property by
a coparcener after his death; or in a suit for pre-emption. On the other
hand, it has been held that the right to sue does not survive in the
following cases; in a suit for a damages for assault, personal injuries or
for malicious prosecution; or for defamation; or for breach of contract
of betrothal; or for dissolution of marriage; or in a suit for specific
performance of a contract involving exercise of special skill like a
promise to paint a picture, or to sing a song.

d. Applicability to other proceedings : Rules 11-12

The maxim actio personalis mortiur cum persona (a personal action dies
with the person) does not apply only to suits in those cases where the
plaintiff dies during the pendency of a suit but also to cases where the
plaintiff dies during the pendency of appeal or appeals. This is on the
footing that by a reason of the dismissal of the suit by the trial court or
the first appellate court, as the case may be, the plaintiff stands
relegated to his original position before the trail court.

e. Duty of pleader: Rule 10-A

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Rule 10-A as inserted by the Amendment Act of 1976 imposes an

obligation on the pleader of the parties to communicate to the court the
fact to the death of the party represented by him.

As a general rule, on the death of the client , his contract with the
pleader comes to an end and so the authority of the pleader to act on
behalf of his client expires. Such a situation, however, creates many
complications. A provision is, therefore, made which imposes a duty on
the part of the pleader to inform the court of the death of his client. It
also enacts that for the said purpose the contract between the pleader
and the party shall be deemed to subsist.

f. Duty of Court: Rule 10-A

Rule 10-A also casts duty on the court to give notice of death of party
to the other party. The duty is statutory and must be observed which is
clear from the words the court shall thereupon give notice of such death
to the other party.

g. Effect of abatement: Rule 9

Where the suit abates or is dismissed due to failure of the plaintiff to
bring the legal representative or representatives of the deceased party,
no fresh suit will lie on the same cause of action. The only remedy
available to the plaintiff or the person claiming to be the legal
representative is to get the abetment set aside.
Such abetment or dismissal of the suit, however, does not operate as
res judicata.

h. General Principles
With regard to the death of a party to a proceeding, from the
various judgments of the Supreme Court, the following general
principles emerge:

1. If an application is not made within the time allowed by law

to bring the legal representatives of the deceased defendant
is concerned. Such abatement is automatic and no specific
order is envisaged by the Code.
2. When once a suit or appeal is abated, a specific order setting
aside such abatement is necessary.
3. Where in a proceeding, a party dies and one of the legal
representatives is already on record in another capacity,
what is necessary is that he should be described also an heir
and legal representative of the deceased party. Failure to
describe him as such would not, however abate proceeding.
4. If there are two or more heirs and legal representatives of the
deceased party and one or more have been brought on

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record within a time, a suit or appeal will not abate on the

ground that all the legal representatives have not been
brought on record in time.
5. If the legal representatives of the deceased plaintiff or the
deceased defendant are brought on record within the
prescribed period at one stage of the suit, it will for the
benefit of the subsequent stage of the suit.
6. Where a plaintiff or an appellant after diligent and bona fide
inquiry ascertains who the legal representatives of deceased
defendant or respondent are, and brings them on record
within the prescribed period, there is no abatement of the
suit or appeal if the impleaded legal representatives
sufficiently represent the estate of the deceased. The decree
passed by the court in a such case will bind not only those
impleaded but the entire estate too.
7. The above rule however does not apply where the impleading
of a person as a legal representative is not found too be bona
fide or where there has been fraud or collusion between the
creditor and heir impleaded or there are other
circumstances which indicate that there has not been a fair
or real trial.
8. The doctrine of abatement applies to an appeal also.
9. No suit can be filled against a dead person. But if a suit is
filled against a dead man without a knowledge that he is
dead, it is non est. On an application by the plaintiff, the
court may permit to implead the right defendant in the place
of the deceased defendant. The court's satisfaction breaths
life into the suit.
10. Legal representatives of the deceased are entitled to
take all the contentions available to the deceased. But if they
intend to take personal or individual defences, they must get
themselves impleaded in their personal capacity.
11. On the death of the plaintiff, whether or not the
suit/appeal abates depends upon whether the suit/appeal
is founded entirely on torts or on contract.
12. No decree can be passed in favour of or against a dead
person. But such a decree is not necessarily a nullity. In a
certain circumstances, it is a permissible for the court to
reopen the proceedings or to remand the case after hearing
the parties likely to be affected thereby.
13. A suit or appeal does not abate on account of the death
of an unnecessary, non-material or pro forma defendant or
respondent.
14. A suit filed in a representative capacity does not abate
on the death of one of the plaintiff's nor a suit filed by a karta

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of a Hindu undivided family abates on his death and the

succeeding karta can continue the proceedings.
15. Neither a suit nor an appeal abates where any party to
a suit or an appeal dies between the conclusion of hearing
and the pronouncement of the judgment.
16. If the parties proceed with the matter without raising
any objection regarding abatement of suit or appeal, no
objection can be allowed at a later stage.
17. Where no sufficient cause for condonation of delay for
setting aside an abatement is made out by the applicant, the
suit or appeal requires to be dismissed. A strong case on
merits is not a ground for condonation for delay.
18. Consideration for condonation for delay under Sec.5 of
the Limitation Act and for bringing heirs on record for setting
aside abatement under Order 22 are distinct and different.
19. The expression sufficient cause should be constructed
liberally to advance substantial justice. A strict and pedantic
approach should not be taken by the court.
20. A mere excuse about the plaintiff not knowing of the
death of the opposite party is not sufficient. He has to state
reasons, which, according to him, led to his not knowing of
the death of the defendant within a reasonable time and
satisfy the court about it.
21. Where a suit abates or dismissed for the non-
substitution of the legal representative or representatives of
the deceased party, no fresh suit can be filed on the same
cause of action. However, the cause of action abated suit
may be invoked as a defence in a subsequent suit.
22. The court has no inherent power under Section 151 of
the Code to implead legal representatives of deceased
respondent if the suit had abated on account of the appellate
not taking appropriate steps within a time to bring the legal
representatives of the deceased party on record.
23. When a suit or appeal abates, a very valuable right
accrues to the other party and such a right cannot be
ignored or interfered with lightly. In the name of doing
substantial justice to one party, no injustice should be done
to the other party.
24. Laches or negligence furnish no good grounds for
setting aside abatement. A party guilty of negligence must
bear the consequences and must suffer. However, if there is
a sight negligence or minor laches which is not intentional
in a not making an application for setting aside abatement
can be granted for doing substantial justice. The rural

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background of the parties can also be taken into account for

this purpose.
25. Where a joint and indivisible decree is passed by the
court below in favour of two or more plaintiffs and one of
them dies and the defendant fails to bring the heirs and the
legal representatives of the deceased plaintiff on record in
time, the appeal against the other respondents also abates.
26. In cross-appeal arising from the same decree where
parties to a suit adopt rival positions, on the death of the
party if his legal representatives are impleaded in one appal
it will not be enure for the benefit of cross appeal and the
same would abate.
27. If an appeal as well as cross-objections in the appeal
are before the court and respondent dies, substitution of his
legal representatives in the cross-objections, being part of
the same record, would enure for the benefit of the appeal
and the failure of the appellant to implead the legal
representatives of the deceased respondent would not have
the effect of abating the appeal but not vice versa.
28. Though sufficient cause cannot be constructed
liberally merely because the defaulting party is the
Government, yet delay in official business requires a public
justice approach. Certain amount of the latitude within
reasonable limits is permissible having regard to impersonal
bureaucratic set-up involving red-tapism.
29. An order refusing to set aside abetment is not a decree
within the meaning of Section 2(2). The order, however, has
been made appealable. But neither second appeal nor
Letters Patent Appeal is maintainable against such an order.

i. Nature of inquiry
A personal inquiry dies with the death of the person (acito personalis
moritur cum persona.) This doctrine, however, operates in a limited
class of actions ex delicto, discussed above.

A sues B for divorce. A dies. The cause of action does not survive to his
representatives.

See also Melepurath v. Evelyn Sequeria 1986 SCC 118 AIR 1986
In the other actions, where the right to sue survives in spite of the death
of the person, the suit does not abate. Hence, whenever a party to suit
dies, the first question to be decided is as to whether the right to sue
survives or not. If the right is held to be a personal right which
extinguishes with the death of the person concerned and does not
devolve on the legal representatives, there is an end to the suit. But if

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the right to sue survives against the legal representatives of the plaintiff,
the suit can continue.

In M.Veerappa v. Evelyn Sequeria, the Supreme Court rightly stated:

If the entire suit claim is founded on torts the suit would undoubtedly
abate. If the action is founded partly on torts and partly on contract
then such part of the claim as founded entirely on contract then the
suit has to proceed to trail in its entirety and be adjudicated upon.

In Melepurath Sankunni v. Thekittil Geopalankutty, the Supreme

Court held that where a suit for defamation is dismissed and the
plaintiff files an appeal, the plaintiff-appellant seeks to enforce his right
to sue for damages against the defendant. The right to sue, therefore,
does not survive on the death of the plaintiff. But where such suit is
decreed, even on the death of the plaintiff, the legal representatives are
entitled to continue the appeal since the question relates to benefit or
determinant to the estate of the deceased. In such case, the cause of
action merges with the decree.

j. Interpretation
Provisions of Order 22 CPC are procedural and not penal in nature.
They are designated to advance justice. Substantive rights of the parties
cannot be defeated by strict adherence and rigid interpretation. On
sufficient cause being shown, delay in bringing legal representatives of
the deceased (plaintiff or defendant) can be brought by conditioning
delay or setting aside abatement.

k. Suit against dead person

No suit can be filled against a dead person. Such a suit is non est and
has no legal effect. Likewise, a decree passed against a dead man is a
nullity. But where a suit is filled against a dead person by the plaintiff
without knowledge of such death, on the application by the plaintiff, the
court may permit the legal representatives of the defendant to be
brought on record. On such impleadment, the suit shall be deemed to
have been instituted on the day the plaint was presented. The court's
satisfaction breathes life into the suit.

l. Procedure where there is no legal representative

Rule 4-A has been added by the Amendment Act of 1976. It lays down
the procedure where there is no legal representative of a party who has
died during the pendency of the suit or a legal representative is not
found. The underlying object of this provision is that the other side
should not suffer because of the absence of the legal representative of
the deceased party.

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m. Partial abatement
An abatement of suit may be total or partial. If the entire suit is founded
on tort or on personal action, the suit would debate as a whole on the
death of the plaintiff or the defendant, as the case may be. But if the
action is founded partly on tort and partly on contract, the claim
relating to tort will abate whereas the claim relating to contract will
survive.

Thus, if A files a suit against B, a trustee under Section 92 of the Code

for his removal as also for settlement of scheme and B dies during the
pendency of the suit; the suit will abate as regard his removal, but it
can be continued as regard settlement of scheme.

(II) Marriage Of The Party : Rule-7

The marriage of a female plaintiff or defendant shall not cause the suit
to abate. Where the decree is passed against a female defendant it may
be executed against her alone. A decree in a favour of or against a wife,
where the husband is legally entitled to the subject-matter of the decree
or is liable for the debt of his wife may, with the permission of the court,
be executed by or against him.

(III) Insolvency Of Party: Rule 8

a. Insolvency of plaintiff
The insolvency of plaintiff shall not cause the suit to abate and can be
continued by his Assignee or Receiver for the benefit of his creditors.
But if the Assignee or Receiver declines to continue the suit, or to give
security for costs, as ordered by the court, the court may, on the
application of the defendant, dismiss the suit on the ground of the
plaintiff's insolvency. The court may also award the defendant costs for
defending the suit, to be paid as a debt against the plaintiff's estate.

b. Insolvency of defendant
Rule 8 does not apply where the defendant becomes an insolvent. In
such cases, the court may stay the suit or proceeding pending against
the defendant who has been adjudged an insolvent. Rule 10 will also
apply in those cases and a receiver will become a representative of the
defendant debtor.

(IV) Devolution Of Interest : Rule 10

Rule to enacts that if, during the pending of the suit, any interest in the
suit has passed from the plaintiff or defendant to any other person, the
suit may with the leave of the court be continued by or against the
person in who favour such interest is created.

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Rule 10 is such is based on a principle that the trial of a suit cannot be

brought to an end merely because the interest of a party in the subject-
matter of the suit has devolved upon another during the pendency of
the suit, but the suit may be continued against the person acquiring
interest with the leave of the court.

Exparte decree.
Decree
 According to Section 2(2) of the Civil Procedure Code, 1973
(CPC), Decree means the formal expression of an
adjudication which, conclusively determines the rights of the
parties with regard to all or any of the matters in controversy
in the suit.
 Decree may be either:
o Preliminary Decree: When further proceedings have to
be taken before the suit can be completely disposed of.
o Final Decree: When the adjudication completely
disposes of the suit.
o Deemed Decrees: By legal fiction, certain adjudications
are deemed to be decrees under this code such as-
 Decree of rejection of a plaint
 Decree of determination of any question within Section
144 (Application for Restitution)
 Following adjudications are not deemed to be decrees under
this code.
o Any adjudication from which an appeal lies as an appeal
from an order
o Any order of dismissal for default
Ex-Parte Decree
 It is an exception to the general rule that an adjudication shall
be pronounced in the presence of both the parties.
 It is a decree in absentia.
 It is pronounced if on the date of hearing the plaintiff is present,
and the defendant is absent.
When is an Ex-Parte Decree Passed
 CPC provides for passing of an Ex Parte Decree wherever the
presence of the defendant is required under the code and the
defendant fails to appear.
 Following are the instances where the court can pass an Ex Parte
Decree:
1. Order 8, Rule 10
 Rule 1 of Order 8 of CPC states that the defendant shall
submit its written statement within 30 days from the date of
service of summons.

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This time period of 30 days can be extended by the court to not


more than 90 days from the date of service of summons.
 If the defendant fails to submit the written statement in such
period, then the Court, under Rule 10 of Order 8, has the
discretion to pass an Ex-Parte Decree.
2. Order 9, Rule 6
 This rule provides that the Court may proceed to try the case
Ex-Parte, and pass an Ex Parte Decree in the same if:
o On the day fixed in the summons for the defendant to
appear, and answer, the plaintiff appears, and the
defendant does not appear.
o It is proved that the summons was duly served in sufficient
time to enable the defendant to appear and answer.
Remedies Against An Ex Parte Decree
 Once an Ex Parte Decree has been passed against a judgement
debtor, he/she can undertake any of the several remedies
available to him under the code.
 CPC provides the following remedies against an Ex-Parte Decree:
1. Setting Aside
 Order 9, Rule 13 of the CPC, provides for the setting aside of the
Ex-Parte decree passed against the defendant.
 Defendant against whom an Ex-Parte decree has been passed may
apply to the Court by which the decree was passed for an order
to set it aside and if he satisfies the Court that:
o The summons was not duly served, or
o He was prevented by any sufficient cause from appearing
when the suit was called on for hearing.
o If either of the above two conditions are satisfied, then the
Court shall make an order setting aside the decree as
against such defendant.
2. Conditional Setting Aside of Decree
 Court may, in its discretion, while setting aside a decree impose
such terms as to costs, payment into Court or otherwise as it
thinks fit, and shall appoint a day for proceeding with the suit.
 Rule 14 of the Order 9 states that no decree is to be set aside
without furnishing notice to the opposite party.
3. Appeal
 According to Section 96(2) of the Code, an appeal may lie from
an original decree passed ex parte.
4. Review
 A review under Section 114 of the code can be made against a
decree passed Ex-Parte.
 Section 114 states that any person considering himself
aggrieved—
(a) by a decree or order from which an appeal is allowed by this
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Code, but from which no appeal has been preferred

(b) by a decree or order from which no appeal is allowed by this
Code, or
(c) by a decision on a reference from a Court of Small Causes,
may apply for a review of judgment to the Court which passed the
decree or made the order, and the Court may make such order
thereon as it thinks fit.

Case Law
In the case of Bhanu Kumar Jain v. Archana Kumar & Anr (2004),
the Apex Court set aside an Ex-Parte decree on the ground that the
defendant had sufficient and reasonable grounds for not being able
to attend the hearing of the suit on the day fixed in the summons.

When a Commissioner can be appointed by Court ? What are his

powers.

Under CPC, a commissioner is appointed to fulfil certain functions

which are essential for the Court, in order to dispense full and complete
justice. Section 75 and order 26 of the code provides the key provisions
which relates to the commissioner. In this article, we will try to answer
the most basic questions which comes to our mind when we begin to
understand the concept of issue of commission and appointment of
commissioner.

What is meant by issue of commission by the Court?

Commission is instruction or role given by the Court to a person to act

on behalf of the Court and to do everything that the Court requires to
deliver full and complete justice. Such person who carries out the
commission is known as a Court commissioner.

For example, whenever the Court has to do a local investigation, a

commissioner is appointed who conducts the local investigation.
Similarly, to record the evidence of a witness who cannot come to the
Court for evidence, the Court can issue a commission for recording of
such evidence.
Who can appoint a commissioner?

Under CPC, the Court which issues the commission can appoint the
commissioner. Section 75, provides that "the Court" can issue
commission provided the limitations and restrictions applicable.

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Therefore, the Court who has to decide the suit can appoint the
commissioner. Commissioner is appointed to carry out the functions for
which the commission is issued. Court has the discretionary power to
appoint the commissioner and such power can be exercised on the
application of any of the parties or the Court can issue the commission
suo moto.

We will understand the procedure followed by the Courts to appoint the

commissioner later in this article.

Who can be appointed as a commissioner?

Generally, there is a panel of commissioners which is formed by the

High Court in which advocates are selected who are competent to carry
out the commission issued by the Court.

The person appointed as commissioner should be:

 independent,
 impartial,
 disinterested in the suit and the parties involved in it.
 Such a person should have the requisite skills to the suit and the
parties involved in it.
 Such a person should have the requisite skills to carry out the
commission.

It will be a complete waste of time and resources of the Court and the
parties if a person who cannot read and understand the accounts and
documents is appointed as commissioner to adjust accounts. Similarly,
a person who does not have the qualifications to conduct scientific
investigation should not be appointed as a commissioner for such task.

The District judge supervises the subordinate Courts who have to take
special care while appointing a commissioner. The same person should
not be appointed by the Court in all commissions and a person who
hangs about the Court should not be appointed.

What is the procedure for appointment of commissioner?

Every High Court has the power (Article 227) to make rules and
regulations which is to be followed by the subordinate Courts.
Procedure for appointment of a commissioner is provided in High Court
rules each state.

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When can a commissioner be appointed by the Court?

A commissioner can be appointed by the Court when a commission is

issued by the Court. According to Section 75 of CPC, the Court has the
power to issue a commission to carry out the following functions:
To examine witnesses: Order 26 Rule 1-8

The general rule of evidence is to bring the evidence before the Court
and must be recorded in open Court. But in extraordinary
circumstances, the appearance of witness is dispensed and the witness
is allowed to depose evidence without appearing in Court.

To Examine Witnesses (Order 26 Rules 1-8)

The general rule of evidence mandates that evidence must be presented
before the court and recorded in open court. However, in extraordinary
circumstances, the appearance of a witness can be dispensed with and
the witness can depose evidence through a commissioner. This
exemption applies in the following scenarios:
1. Sickness or Infirmity: If a witness is bedridden or unable to
attend court due to sickness or infirmity, the court can exempt
their appearance and allow them to depose evidence to a
commissioner. Such witnesses must submit a certificate from a
registered medical practitioner as proof of their condition (Order
26 Rule 1, CPC).
2. Apprehension of Danger: If a witness apprehends danger to their
life and informs the court and if the court deems it necessary to
record their evidence, a commission may be issued. However, if a
party accused of fraud seeks examination via commission, the
court should avoid issuing the commission to prevent abuse of the
procedure.
3. Pardanashin Ladies: The appearance of pardanashin ladies,
whose attendance is exempted under Section 132 of the CPC, can
be dispensed with and their evidence can be recorded by a
commissioner.
4. Civil or Military Officers: Civil or military officers of the
government, whose attendance would be detrimental to public
service, can have their evidence recorded by a commissioner
(Order 26 Rule 4).
5. Interest of Justice: The court can issue a commission if it
believes it is in the interest of justice, for expeditious disposal of
the case or for any other reason, notwithstanding any rules
provided in the order (Order 26 Rule 4A).
6. Persons Exempt from Attendance: Individuals who cannot be
ordered to attend the court in person under Order 16 Rule 19 can
be examined by issuing a commission (Order 26 Rule 4 Proviso).

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7. Persons Detained in Prison: A commission can be issued to

examine individuals detained in prison (Order 26 Rule 7).

To Make Local Investigations (Order 26 Rules 9-10)

Commissions can be issued to conduct local investigations to clarify any
point of controversy in the suit. This is especially useful in cases
involving property disputes where the commissioner can visit the site
and submit a report to the court.

To Adjust Accounts (Order 26 Rule 11)

When complex financial transactions are involved and it is necessary to
adjust accounts, a commissioner can be appointed to scrutinise the
accounts and report to the court.

To Make Partition (Order 26 Rule 13)

In suits involving partition of property, a commissioner can be
appointed to divide the property in accordance with the court’s decree
and submit a report on the partition.

To Hold Scientific, Technical or Expert Investigations (Order 26

Rule 10A)
In cases requiring scientific, technical or expert investigations, a
commissioner with the necessary qualifications can be appointed to
conduct these investigations and provide the court with an expert
report.
To Conduct Sale of Property (Order 26 Rule 10C)
For the sale of property in execution of a decree, a commissioner can be
appointed to conduct the sale and report the proceedings to the court.

To Perform Ministerial Acts (Order 26 Rule 12)

A commissioner can also be appointed to perform ministerial acts, such
as signing documents or carrying out other administrative tasks on
behalf of the court.

Powers and Duties of a Commissioner

A commissioner appointed by the court has the authority to undertake
the tasks specified in the commission. The powers and duties of the
commissioner include:
1. Recording Evidence: When appointed to record evidence, the
commissioner must ensure that the evidence is recorded
accurately and comprehensively.
2. Local Investigation: If conducting a local investigation, the
commissioner must visit the site, gather relevant information and
submit a detailed report to the court.

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3. Adjusting Accounts: In cases requiring account adjustment, the

commissioner must thoroughly examine the financial records and
prepare a report on the adjustments made.
4. Scientific or Technical Investigations: For scientific or
technical investigations, the commissioner must carry out the
investigation with precision and submit an expert report.
5. Sale of Property: When tasked with selling property, the
commissioner must conduct the sale in accordance with the
court’s directions and report the proceedings.
6. Ministerial Acts: For ministerial acts, the commissioner must
perform the tasks diligently and report back to the court.

Conclusion
The appointment of a commission under the CPC is a vital mechanism
to ensure justice is served efficiently and effectively. By delegating
specific tasks to a commissioner, the court can obtain detailed and
specialised information, which aids in the proper adjudication of cases.
The process involves careful selection and appointment of qualified
individuals who can perform their duties impartially and competently.
Understanding the roles, powers and procedures related to the
appointment of commissions helps in appreciating the judicial system’s
efforts to deliver comprehensive justice.

Explain the suits by or against the minors.

Definition of Minor and Persons of Unsound Mind
According to Section 3 of the Indian Majority Act, 1875, a minor is a
person who has not attained the age of 18 years. However, if a guardian
has been appointed by the Court for the minor’s person or property or
if the minor’s property is under the supervision of a Court of Wards, the
age of majority is extended to 21 years. A person of unsound mind refers
to an individual who cannot protect their interests due to mental
infirmity and their condition may be adjudicated by the Court either
before or during the suit.
Purpose of Order XXXII: Suits by or Against Minors and Persons of
Unsound Mind
Order XXXII of the CPC is specifically designed to protect the interests
of minors and persons of unsound mind by ensuring they are properly
represented in legal proceedings. Due to their lack of capacity and
judgement, these individuals cannot legally bind themselves except in
cases beneficial to them. Therefore, the appointment of a guardian or
next friend is crucial to safeguard their legal rights and interests.

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Provisions for Suits by or Against Minors and Persons of Unsound

Mind under Order XXXII
Rule 1: Minor to Sue by Next Friend
Every suit by a minor must be instituted in the minor’s name by a
person called the next friend. The next friend represents the minor in
all legal proceedings, ensuring that the minor’s interests are adequately
protected.
Rule 2: Where Suit is Instituted without Next Friend
If a suit is filed on behalf of a minor without a next friend, the defendant
can apply to have the plaint taken off the file. The person who presented
the plaint may be ordered to pay the costs incurred by the defendant.
Notice of such an application must be given to the person who filed the
suit and the Court, after hearing their objections, may make an
appropriate order.
Rule 2A: Security to be Furnished by Next Friend when Ordered
The Court can require the next friend of a minor to provide security for
the payment of all costs incurred or likely to be incurred by the
defendant. This provision, introduced by the Amendment Act of 1976,
aims to prevent frivolous litigation by ensuring that the next friend has
a vested interest in the suit and is financially accountable.
Rule 3: Guardian for the Suit to be Appointed by Court for Minor
Defendants
When a minor is a defendant, the Court must appoint a guardian for
the suit, known as a guardian ad litem. The guardian ad litem is
responsible for defending the minor throughout the legal proceedings
unless terminated by retirement, removal or death. The application for
appointing a guardian must be supported by an affidavit verifying that
the proposed guardian has no adverse interest in the matters of the suit
and is fit for the role.
Rule 3A: Decree Against Minor not to be Set Aside Unless Prejudice
has been Caused to His Interest
A decree against a minor will not be set aside merely because the next
friend or guardian had an adverse interest. However, if this adverse
interest prejudices the minor, it is a valid ground for setting aside the
decree. This rule ensures that the minor’s interests are protected from
any potential conflicts of interest.
Rule 4: Who May Act as Next Friend or be Appointed Guardian for
the Suit
Any adult of sound mind, who does not have an adverse interest, may
act as the next friend or guardian for the suit. If a minor already has a
guardian appointed by a competent authority, no other person can act
as the next friend or guardian unless the Court deems it necessary for
the minor’s welfare. This rule ensures that the minor is represented by
someone with their best interests at heart.

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Rule 5: Representation of Minor by Next Friend or Guardian for the

Suit
All applications and orders concerning a minor in a suit must be made
through the minor’s next friend or guardian. Any orders made without
such representation can be set aside if it is shown that the pleader knew
or should have known about the minor’s status. This provision
safeguards the minor’s legal rights and ensures proper representation
in Court.
Rule 6: Receipt by Next Friend or Guardian for the Suit of Property
under Decree for Minor
A next friend or guardian cannot receive any property on behalf of a
minor without the Court’s permission. The Court may require security
to ensure the proper management of the property and protect it from
waste. This rule prevents the misuse of the minor’s property and
ensures its proper application for the minor’s benefit.
Rule 7: Agreement or Compromise by Next Friend or Guardian for
the Suit
A next friend or guardian cannot enter into any agreement or
compromise on behalf of the minor without the Court’s permission. Any
such agreement without the Court’s leave is voidable. This rule protects
the minor from potential exploitation and ensures that any compromise
is in their best interest.
Rule 8: Retirement of Next Friend
A next friend cannot retire without first finding a suitable replacement
and providing security for costs already incurred. This ensures
continuity in the minor’s representation and prevents any disruption in
the legal proceedings.
Rule 9: Removal of Next Friend
The Court can remove a next friend if their interest is adverse to the
minor, they are connected to the defendant, fail to perform their duties
or for any other sufficient cause. This provision ensures that the next
friend acts in the minor’s best interest and can be replaced if they fail
to do so.
Rule 10: Stay of Proceedings on Removal, etc., of Next Friend
If a next friend retires, is removed or dies, the proceedings are stayed
until a new next friend is appointed. This prevents any legal actions
from proceeding without proper representation of the minor.
Rule 11: Retirement, Removal or Death of Guardian for the Suit
The Court can permit the retirement, removal or replacement of a
guardian during the suit. If a guardian retires, dies or is removed, a new
guardian must be appointed to continue the proceedings. This ensures
that the minor is continuously represented throughout the legal
process.
Rule 12: Course to be Followed by Minor Plaintiff or Applicant on
Attaining Majority

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When a minor plaintiff attains majority, they must decide whether to

continue with the suit, dismiss it or apply to proceed in their own name.
The title of the suit is then corrected to reflect their new status. This
rule provides clarity and ensures that the legal proceedings are
appropriately updated.
Rule 13: Where Minor Co-plaintiff Attaining Majority Desires to
Repudiate Suit
A minor co-plaintiff who attains majority can apply to have their name
struck out as a co-plaintiff if they wish to repudiate the suit. The Court
will determine if they are a necessary party and make an appropriate
order regarding their dismissal from the suit. This provision allows the
newly major individual to make an informed decision about their
involvement in the legal proceedings.
Rule 14: Unreasonable or Improper Suit
A minor who attains majority can apply to have a suit dismissed if it
was unreasonable or improper. The Court must be satisfied of the suit’s
unreasonableness or impropriety to grant the application. This rule
ensures that the interests of the now-major individual are protected
from any prior decisions made without their informed consent.
Rule 15: Application to Persons of Unsound Mind
Rules 1 to 14 (except rule 2A) apply to persons adjudged to be of
unsound mind or found incapable of protecting their interests due to
mental infirmity. This rule extends the protections provided to minors
to persons of unsound mind, ensuring their interests are safeguarded
in legal proceedings.
Rule 16: Savings
The provisions of this Order do not apply to the Ruler of a foreign State
suing or being sued in the name of his State or by the direction of the
Central Government in the name of an agent. This rule ensures that
diplomatic and sovereign immunities are respected. Additionally, it does
not affect any local laws related to suits by or against minors or persons
of unsound mind.

Case Laws on Suits by or Against Minors and Persons of Unsound

Mind
Several landmark cases illustrate the application of Order XXXII and
the principles governing suits involving minors and persons of unsound
mind.

Ramchandra Arya v. Mansingh

In Ramchandra Arya v. Mansingh (AIR 1968 SC 954), Ramdas filed
a civil suit against Ramlal, a person of unsound mind, to recover a sum
of money. The suit, initially heard by the Court of Judge, Small Causes,
was transferred to the Court of Munisif, which passed an ex parte decree
against Ramlal, declaring him sufficiently served. Ramlal’s house was

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sold in execution of this decree and a sale certificate was issued to

Prabhudayal. Despite the sale, Ramlal continued living in the house
until his death, after which the property escheated (Escheat is the right
of a government to take ownership of estate assets or unclaimed property
in the event that there are no heirs or beneficiaries. Escheat rights can
also be granted when assets are unclaimed for a prolonged period.) to
the Maharaja of Jaipur due to the absence of heirs.

Prabhu dayal then filed a suit for possession of the house. The defence
argued that since Ramlal was a lunatic and no guardian ad litem was
appointed in the initial suit, the decree was null and void, making the
sale void as well. Both the Trial Court and the first Appellate Court
dismissed Prabhudayal’s suit. The High Court upheld these decisions.
The Supreme Court ruled that the decree was passed in violation of
Order XXXII, Rule 15 of the Code of Civil Procedure, 1908. Ramlal was
insane at the time the suit was instituted and during the execution of
the decree. The Court reiterated that any decree against a minor or
person of unsound mind without the appointment of a guardian is null
and void, thus invalidating the sale of Ramlal’s house.

Kasturi Bai v. Anguri Chaudhary

In Kasturi Bai v. Anguri Chaudhary (2003) 1 SCALE 735, the
respondent filed a suit for partition of immovable properties against the
appellant, an 87-year-old woman claiming she was unable to
understand and give instructions due to her age. The respondent
requested the Court to summon the appellant to assess her mental state
and, if necessary, appoint a guardian for the suit. The Trial Court
dismissed this application.

The respondent filed a revision application under Section 115 of the

Code of Civil Procedure, 1908, which the High Court allowed, stating
that the Trial Court had acted irregularly by rejecting the application
without proper inquiry. The appellants sought to recall this order,
arguing that they had not been served notices. The Division Bench of
the High Court treated the recall application as an appeal and dismissed
it.

The Supreme Court held that the Trial Court had failed to conduct an
inquiry to determine if the respondent was capable of protecting her
interests due to mental infirmity. The single Judge committed a
jurisdictional error and the Division Bench erred in treating the recall
application as an appeal. The Supreme Court set aside the impugned
judgement and directed the Trial Court to reconsider the matter afresh
under Order XXXII, Rule 15 of the CPC, 1908.

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Conclusion
Order XXXII of the Code of Civil Procedure, 1908, provides
comprehensive guidelines to ensure the protection of minors and
persons of unsound mind in legal proceedings. By mandating the
appointment of a next friend or guardian, the law seeks to safeguard
their interests and prevent exploitation. The detailed provisions of Order
XXXII address various scenarios, from the initiation of suits to the
handling of property and the resolution of conflicts of interest.

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Appeal in CPC:
The concept of ‘appeal’ is not explicitly defined in the CPC (Code of Civil
Procedure). According to the Black’s Law Dictionary, ‘appeal’ is the
formal complaint made to a higher court to rectify an injustice or error
committed by a lower court.
The Superior Court, to which the appeal is made, reviews and retrials
the case, effectively transferring it from a court of lower jurisdiction to
one with greater authority.

Essentials of Appeals
An appeal under CPC is a legal process in which a higher forum reviews
the decision of a lower forum on both legal and factual grounds. The
higher forum has the jurisdiction to either uphold, reverse, modify the
decision, or send the case back to the lower forum for a fresh decision,
following the directions given by the higher forum. The three essential
elements of appealing cases can be summarised as follows:
 A decree issued by a judicial or administrative authority.
 An aggrieved individual who may not have been a party to the
original proceeding.
 A reviewing body was established specifically to handle such
appeals in CPC.

Right to Appeal
The right to appeal is both statutory and substantive. It is a statutory
right because it must be specifically granted by a statute and establish
the appellate machinery. Unlike the inherent right to institute a lawsuit,
the right to appeal is provided by law. Additionally, the right to appeal
is substantive, meaning that it must be exercised prospectively unless
the statute states otherwise.
However, parties may waive this right through an agreement, and
accepting benefits under a decree may stop a party from challenging its
validity. It’s important to note that the right to appeal is determined
based on the law as it exists at the time of the original suit.

One Right to Appeal in CPC

There is usually one right to appeal, as stated in Section 96 of the CPC.
This allows an aggrieved party to appeal a decree passed by a court
exercising its original jurisdiction to a higher authority designated for
this purpose. Exceptions to this single right of appeal are outlined in
Sections 97, 98, and 102 of the CPC, which specify certain conditions
under which no further appeal is permitted.

No Right to Appeal under CPC

In general, a person who is not a party to the suit does not have the
right to appeal unless they obtain special leave from the Court. The
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crucial factor to consider when determining one’s right to appeal is

whether the person is adversely affected by the decision or the suit, and
this is a matter of fact that must be evaluated on a case-by-case basis.

Who Can File an Appeal?

The right to appeal in CPC is available to specific categories of
individuals:
 Any party to the original proceeding or their legal representatives.
 Any person claiming under such a party or a transferee of
interests from such a party.
 Any person appointed by the Court as the legal guardian of a
minor.
 Any other aggrieved person, with the Court’s permission.
The general rule is that only a party to a suit who has been adversely
affected by the decree or their representatives can file an appeal in CPC.
However, with the Court’s leave, a person not originally involved in the
case may also appeal if they are bound by the decree, aggrieved by it,
or maliciously influenced by it. To determine if a party is aggrieved, it
must be shown that the judgment has unjustly affected their rights,
whether financially or otherwise. A judgment cannot be said to
adversely impact a party unless it acts as res judicata against them in
future litigation. The content of the judgment and decree, rather than
the form, should be evaluated to determine if it will have this effect.
Section 96(2) outlines remedies available to a defendant against whom
an ex parte order is passed. They can either file an appeal under CPC
against the decree or file a motion to set aside the ex parte decree. These
remedies can be pursued concurrently and do not hinder each other.
However, Section 96(3) specifies that a consent decree cannot be
appealed against. This provision is based on the principle of estoppel,
assuming that parties to a suit may, through a lawful agreement,
settlement, or behaviour, relinquish their right to appeal. In a consent
decree, both parties have willingly given up their right to appeal in CPC
as part of the agreement.
Who Cannot File an Appeal in CPC?
To summarise the situations in which parties may not have the right to
appeal:
 A party that has explicitly and unambiguously given up its right
to appeal as per an arrangement or agreement.
 A party that has received benefits from a decree and has implicitly
accepted its terms.
 A consent decree binds parties, as they have willingly agreed to its
terms.
 Parties whose evidence or compromises were not presented or
expressed during the dispute.

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 Parties involved in trivial instances where the matter is not

significant enough to warrant an appeal in CPC.
Furthermore, legal representatives are not allowed to file an appeal
under CPC on behalf of a deceased individual. Once a party passes
away, their right to appeal also ceases to exist.
Characteristics of An Appeal
The right to appeal is not automatically assumed and must be explicitly
provided for in the statute. It differs from the rights associated with
filing cases, as it is a substantive right rather than a procedural one.
These rights arise from the moment the suit is instituted. Once granted,
these privileges cannot be invalidated unless a statute expressly or
implicitly allows for such invalidation. The appellate authority has the
final and conclusive discretion in matters related to appeals.
Form of Appeal: Rules
For an appeal to be considered valid, it must adhere to all the provisions
specified in the Memorandum of Appeal. Rule 2 prohibits the appellant
from raising objections that are not outlined in the memorandum of
appeal, except with the Court’s permission. This rule is intended to
inform the respondent of the specific case they are expected to address
during the appeal hearing. If the memorandum of appeal in CPC is not
in the appropriate form, the Court has the discretion to reject it or send
it back to the appellant for necessary amendments.
Rule 4 explains that if a decree is based on a common ground that
applies to all the plaintiffs or defendants, each of them has the right to
appeal under CPC against the entire decree. The Court may then either
reverse or modify the decree collectively favouring all the plaintiffs or
defendants. This rule allows multiple parties who share a common
interest in the case to collectively challenge the decree on the shared
ground.
Condonation of Delay
The Amendment Act of 1976 introduced Rule 3A, which states that if
an appeal is filed after the prescribed limitation period expires, the
appellant must submit a statement explaining the reasonable grounds
for the delay in filing the appeal. The purpose of this rule is twofold:
firstly, to inform the appellant that the delayed appeal in CPC may not
be accepted until the Court considers the application justifying the
delay, and secondly, to alert the respondent that the appellant may not
be immediately prepared to argue on the merits of the case, as the Court
needs to address the application for condonation of the delay as a
preliminary matter. However, it is essential to note that this clause is
considered a directory and not mandatory.
Stay of Proceedings
Rules 5 to 8 deal with the provision for a stay of execution of a decree
or order during the appeal process. Rule 5 allows the appellate Court to
order a stay of proceedings under the decree or the enforcement of the

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decree once an appeal under CPC has been filed. However, it’s
important to note that the mere filing of an appeal does not
automatically suspend the implementation of the decree.
The purpose of Rule 5 is to protect the interests of both the party who
obtained the decree and the party against whom the decree was passed.
For the Court to grant a stay, the following conditions must be met:
 The application for a stay must be filed without any undue delay.
 The party seeking the stay must demonstrate that they would
suffer significant harm if the order is not granted.
 The applicant must provide adequate security to ensure the due
performance of the decree or order in case the appeal is
unsuccessful.
If these conditions are satisfied, the Court may also issue an ex parte
order for a stay of execution pending the hearing of the appeal without
requiring the other party’s presence. This allows for immediate
protection of the appellant’s interests while the Court considers the
matter further.

Summary Dismissal
Rule 11 pertains to the trial court’s authority to summarily dismiss an
appeal in CPC. This process occurs after the appellant has submitted
the memorandum of appeal and the appeal has been filed in accordance
with Rule 9. Rule 11 enforces the fundamental principle that the appeal
court has the right to dismiss an appeal without a full hearing if it finds
that it lacks merit after hearing the appellant or their counsel.
However, this discretionary power should be exercised judiciously and
not in an arbitrary manner. The Court should use this control only in
exceptional circumstances and with restraint. In other words, the
summary dismissal of an appeal should be rare and sparingly applied.
The purpose of Rule 11 is to allow the appeal court to swiftly dispose of
frivolous or meritless appeals, thus preventing unnecessary delays and
ensuring that the Court’s resources are used efficiently. However, this
authority should not be misused, and the Court must be cautious not
to deny legitimate appeals that may require a full hearing for proper
adjudication.

Doctrine of Merger
The concept of the merger theory is rooted in the principle that there
should not be multiple operative decrees governing the same subject
matter simultaneously. As a result, when an appeal is adjudicated by
an appellate court, the decree of the trial court no longer remains
effective under the provisions of the statute.
Instead, it is replaced by the decree passed by the appellate Court, and
the decree of the trial court effectively combines or “merges” with the
decree of the appellate Court.

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Cross Objections
Order 41 Rule 22 is a special provision that permits the respondent,
who has not filed an appeal against the decree, to raise objections to the
decree by filing cross-objections in response to the appeal filed by the
other party. However, filing cross-objections is purely discretionary and
voluntary for the respondent. This provision is permissive and
encouraging rather than being mandatory or obligatory.
Cross-objections should not be confused with cross-appeals under CPC.
A cross-appeal is when the respondent, who is typically the plaintiff in
the original case, brings an appeal against the appellant (typically the
defendant) if they are dissatisfied with a particular aspect of the
judgment, even if the overall decree is in their favour due to other
findings.
The terms of Order 41 Rule 22 only permit the right to file cross-
objections when an appeal is filed and the appellate Court accepts the
appeal, issuing a notice to the respondent. Only after the appeal is
accepted and the Court notifies the respondent the process of filing
cross-objections may begin.
It is important to note that cross-objections cannot be filed if the
appellant has filed no appeal or if an appeal has been filed but has not
been accepted by the Court. In such cases, the respondent cannot raise
objections through cross-objections.
Powers of Appellate Court under CPC
The appellate Court is granted several powers under Section 107 and
the corresponding rules of Order 41 of the Code of Civil Procedure:
Power to decide a case finally (Section 107(l)(a) and Rule 24)
When the evidence on record is sufficient, the appellate Court can make
a final decision on the case, even if the judgment of the lower Court was
based on different grounds.
Power of remand (Section 107(1)(b) and Rule 23)
If the trial court decides the case on a preliminary point without
considering other issues, and the appellate Court reverses that decree,
it can remand the case back to the trial court to decide the remaining
issues and reach a decision.
Power to frame issues and refer them for trial (Section 107(1)(c),
Rules 25 and 26)
If the trial court fails to frame an issue or overlooks a crucial factual
question, the appellate Court can frame those issues and refer them for
trial to the lower Court. The lower Court is directed to take the
additional evidence required to properly determine the case.
Power to take additional evidence (Section 107(1)(d), Rules 27-29)
Generally, the appellate Court decides the appeal in CPC based on the
evidence presented during the original trial. However, the Court may
admit additional evidence if the party requesting it demonstrates that
this evidence was not available during the initial trial despite their best

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efforts. The other party must have an opportunity to challenge the

additional evidence, which should be relevant to the issues under
consideration.
Power to modify the decree (Rule 33)
The appellate Court is empowered to grant or refuse relief to the
appellant and provide suitable relief to the respondents as necessary.
The Court can make any decision it deems appropriate, not just between
the appellant and the respondent but also between two respondents.
These powers enable the appellate Court to ensure fair and just
adjudication of the case based on the evidence and merits presented
before it.

First Appeal in CPC

According to Section 96 of the CPC, a regular first appeal can be filed
against a decree passed by any Court exercising original jurisdiction,
except when expressly prohibited. Analysing Sections 2(2), 2(9), and 96
of the CPC together, it becomes evident that a first appeal may or may
not be maintainable in certain adjudications.

Second Appeal in Civil Procedure Code

Section 100 of the CPC provides for a second appeal under this code. It
stipulates that an appeal may be filed to the High Court from a decree
passed in the first appeal by a subordinate Court, except where contrary
provisions exist. However, the jurisdiction exercised under this section
is limited to substantial questions of law framed either at the time of
admission of the appeal or subsequently.

Conversion of an Appeal into Revision

In the case of Bahori v. Vidya Ram, it was established that since there
is no specific provision under the CPC for the conversion of an appeal
into a revision or vice versa, the Court can only exercise its power under
Section 151. Though discretionary, the Court’s inherent powers allow it
to issue orders necessary to meet the ends of justice. The only
prerequisite for such conversion is that proper procedures are followed
during the filing of the original appeal or revision under the Civil
Procedure Code.

Distinction Appeal Revision

Lies to a Superior Court Available to High Court

Jurisdiction from an original decree only in cases where no
unless expressly barred. appeal lies.

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Purely discretionary
Nature of Substantive right
power, no right of
Right conferred by statute.
revision.

Exerciseable through a
Can be exercised suo
Initiation of memorandum of appeal
motu by the revisional
Jurisdiction filed by the aggrieved
court.
party.

Maintainable on legal Maintainable on the

Grounds for
grants and question of ground of jurisdictional
Application
fact. error.

Appeal abates if legal Revision may not abate,

representatives are not and the High Court can
Abatement
brought on record within bring proper parties at
the allowed time. any time.

High Court/revisional
Court of appeal can set
Set Aside court cannot set aside
aside findings of facts of
Findings findings of facts of
subordinate Courts.
subordinate Courts.
Appeals from Orders of the Tribunal
When parties involved in proceedings are dissatisfied with the orders or
conclusions of the tribunal, they have the option to submit an appeal to
the National Company Law Appellate Tribunal (NCLAT). The Company
Act, 2013, in Section 421, elaborates on the process as follows:
 Either one or both parties aggrieved by an order of the tribunal
may file an appeal under CPC with the appellate tribunal.
 An appeal cannot be filed with the tribunal without the consent of
both parties.
 The appeal must be filed with the NCLAT within forty-five days of
the tribunal’s order, in the prescribed form, and accompanied by
the required fees.
 In exceptional circumstances, if the tribunal is convinced that
there is sufficient cause for not filing the appeal within the forty-
five-day period, it may allow the appeal to be filed beyond this
period, but it cannot extend beyond the forty-five days limit.
 After giving both parties a reasonable opportunity to be heard, the
tribunal may pass appropriate orders.
 The tribunal has the authority to either confirm, modify, or set
aside the order being appealed against.
 The appellate authority is responsible for sending a copy of the
order to the tribunal and the parties involved in the appeal in CPC.

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Appeals By Indigent Persons

If a person is unable to pay the required fee for filing a memorandum of
appeal Civil Procedure Code, they have the option to file an appeal as
an indigent person. However, the Court has the discretion to reject such
an application and may direct the applicant to pay the necessary court
fee within a specified time.
Appeals To The Supreme Court
Appeals to India’s highest jurisdictional body, the Supreme Court, can
be made under two circumstances. Firstly, when the lower Court
considers the case appropriate for an appeal to the Supreme Court, and
secondly, when the Supreme Court grants special leave for the appeal
Civil Procedure Code. A petition must be submitted to the Court that
issued the decree to file an appeal under CPC. The petition will be heard
and disposed of within sixty days. It should state the grounds of appeal
and include a request for a certificate declaring that the case involves a
substantial question of law that requires the Supreme Court’s decision.

The opposite party will have an opportunity to raise objections to the

issuance of such a certificate. The petition will be disposed of if the
certificate is denied. If the certificate is granted, the appellant must
deposit the required security and costs within a specified period. After
fulfilling these obligations, the Court from whose decision the appeal in
CPC is made will declare the appeal as admitted and notify the
respondent accordingly. The jurisdictional body will then provide a
sealed copy of the record and furnish copies of the relevant papers in
the suit.

Conclusion
An appeal in CPC is a legal process through which a party dissatisfied
with a court’s decision seeks a review and reconsideration of the
judgment by a higher court. It allows parties to challenge the lower
court’s ruling on specific legal or factual grounds and present
arguments for a different outcome.
The process of appeals in the legal system plays a crucial role in
ensuring justice and fairness. Understanding the various provisions
and powers involved in filing appeals can be instrumental in achieving
favourable outcomes for parties dissatisfied with trial court decisions.
From first appeals to second appeals and the option for indigent persons
to file appeals, the legal framework aims to address grievances
effectively. Additionally, the avenues for appeals to the Supreme Court
provide a vital recourse for cases deemed appropriate for further review.
Overall, a comprehensive grasp of the appeal process empowers
individuals to navigate the legal system with confidence, seeking redress
for their grievances.

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Main differences or distinction between the Reference, Review,

Revision provided under the Code of Civil Procedure, 1908.

Reference Review Revision

1.
Section 113 and
Order 46 of the Section 114 and
CPC provides the Order 47 of the CPC
provisions provides the Section 115 of the CPC
relating the provisions relating the provides the provisions
Reference. Review. relating the Revision.
2.
In case of Revision, it can
In the reference, be exercised either on the
the subordinate application by the
court refers the In the Review, the aggrieved party by the
case to the High application made by High Court even A review
Court. the aggrieved party motu
3.
Review, on the other
The High hand, is by the court
Court alone can which passed the Revision can only be
decide matters decree or made the entertained by the High
on the reference. order. Court.
4.
It is made in An application for
the pending suit, review can be made Revisional jurisdiction
appeal or for only after the can be exercised when
execution decree is passed or the case has
proceedings order is made. been decided.
5.
The grounds for the
review are as follows:-
(i) discovery of new
and important
matter or evidence;
The grounds of (ii) mistake or error The grounds for the
reference relate apparent on the face revision relate
to a reasonable of the record; (iii) to jurisdictional
doubt on a any other sufficient errors of the
question of law. reason. subordinates court.
6.

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The order passed in the

exercise of revisional
The order granting the jurisdiction is not
review is appealable. appealable.
7.
Revision can be exercised
Review can be made by the High Court
even when an appeal where no appeal lies to
lies to the High Court. the High Court.

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Explain the provisions in respect of condonation of delay.

Background of The Limitation Act, 1963

In India, [1]the legislation which governs and regulates the period within
which a suit is supposed to be instituted is known as the Limitation
Act, 1963. This legislation enumerates relevant provisions regarding the
delay in filing application, suit and appeal under competent jurisdiction
and how that delay can be condoned. This legislation extinguishes the
remedy to the party and not the right to file delayed documents in court
which substantially prevents the legal right from getting defeated.

The limitation Act works on the principle of two legal maxims which can
be stated as follows:
1. Interest republicae ut sit finis litium which means that for the
public interest, litigation must come to an end.
2. Vigilantibus non dormentibus jura subveninet which means that
court protect those who are vigilant about their own rights.
Objective And Applicability Of The Limitation Act, 1963
The main objective that the Limitation Act, 1963 serves is to primarily
provide a bar upon the time limit within which the aggrieved party can
institute a suit, application or appeal in the court. If legislation[2] upon
limitation is not enacted, then it would lead to an unconditional and
never-ending litigation procedure, as no party would be concerned to
refer a timely litigation and the party will file suit for a cause of action
that has been executed a long time back and which may have no
relevance in the present time.

In Balakrishnan v. M.A. Krishnamurthy[3], the apex court held that

the limitation Act, 1963 is primarily based on public policy to fix a time
during which the aggrieved party can ask for a legal remedy for the
general welfare.

Meaning of Limitation: The term limitation should be literarily

interpreted as the term itself states it’s meaning i.e. restriction or
the rule or circumstances which are limited. It means that the
circumstance under which legal remedy is obtained is barred by time
as per the law. The law of limitation[4] specifically prescribes a
particular time limit during which an aggrieved party shall approach
the court to receive the legal remedy.

As per the law of limitation, no court shall have the jurisdiction to try a
suit, or entertain an application or appeal, if it is filed after the
prescribed period. This prescribed period has been specifically
highlighted under the schedule of the Limitation Act, 1963 with the
head “period of limitation†.

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Meaning Of Condonation Of Delay: The condonation of delay means

the extension of prescribed time in certain cases subject to sufficient
cause. The concept of condoning a delay is primarily preferred to the
applications and appeal and does not cover the suits. The rationale
behind the doctrine not including the suit is that this doctrine is
regarded as an exception to the general rule that is Bar of limitation
under the legislation and hence, it does not include suit.

The term condonation means an implied pardon of an offense by

treating the offender as if it had not been committed[5]. Here, the
referred offense is the offense of ignoring the law of period that has been
prescribed by the Limitation Act, 1963. The legal representatives of the
party pray and humbly requests to the Hon’ble court to pardon their
offense of ignoring the law of limitation and proceed as if no offense has
been committed by the party.

Condonation of Delay Under The Indian Limitation Act, 1963-

Primary Focus On Section 5 Section 5[6] of the Limitation Act, 1963
dealt with the extension of the prescribed period in a certain case. It
states that if the appellant or the applicant satisfies the court that he
had a sufficient cause for not preferring the appeal or making the
application within such period, then such an application or appeal shall
be admitted after the prescribed period.

In Ram Kali Kuer v. Indradeo Chaudhary it was held that section 5

does not provide that an application in writing must be filed before relief
under the said provision can be granted. In Ashok v. Rajendra
Bhausaheb Mulak[8] it was held that a bona fide mistake on the part of
the councel in pursuing a remedy is a good ground for condonation of
delay in approaching the right forum in the right kind of proceedings.

In IOCL v. Subrata Borah Chowlek it was held that though section 5

envisages the explanation of delay to the satisfaction of the court, and
makes no distinction between the state and the citizens, nonetheless
adoption of a strict standard of proof in case of Government, which is
dependent on the actions of its official, who often do not have any
personal interest in its transactions may lead to grave miscarriage of
justice and therefore, certain amount of latitude is permissible in such
cases.

The court should not be lenient enough which would permit the parties
to tamper with the legal right so acquired. The condonation of delay is
a remedy and not a right to the aggrieved party. Even if the party
successfully provides a sufficient cause, the courts have the

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discretionary power to deal with the application of condonation of delay.

The expression sufficient cause’ must be literarily construed by the

court. In G. Ramagowda v. Special Land Acquisition Officer[10] it
was held that the expression sufficient cause must receive a liberal
construction so as to advance substantial justice and generally delays
in preferring appeals are inaction or lack of bona fide is imputable to
the party seeking condonation of delay.

In Shakuntala Devi Jain v. Kuntal Kumari[11] section 5 gives the

court a discretion with respect to jurisdiction is to be exercised in the
way in which judicial power and secretion ought to be exercised upon
principles which are well understood. The term sufficient cause’
receiving a liberal construction so as to advance substantial justice
when no negligence nor inaction nr want of bona fides is imputable to
the appellant.

General Principles to Be Followed:

In Collector Land Acquisition v. Mst. Katiji The Supreme Court also
gave certain principle which binds the Courts to follow while
adjudicating and interpreting the issue regarding condonation of delay.
These are
1. Ordinarily, a litigant does not have the right to receive benefit from
filing a late appeal.
2. Â If the delay is condoned, then the case must be decided after
both parties have been provided with an opportunity of being
heard before the court. But if condonation is refused, then there
is a chance that a meritorious matter would be thrown out on the
basis of technicalities.
3. It is not required to take a pedantic approach while dealing with
an explanation of the delay. The doctrine has to be applied in a
rational and pragmatic manner.
4. Between substantial justice and technical considerations, the
substantial justice should be preferred before since the other side
cannot contend to have a superior right in injustice being done
under a bona fide mistake.
The court should not presume that the delay is occasioned deliberately
or on account of mala fide or the applicant is guilty of culpable
negligence since no litigant takes recourse to delay the filing of his
application.

In State (NCT of Delhi) v. Ahmed Jaan[14] the expression sufficient

cause’ should be considered with pragmatism in a justice-oriented
approach rather than the technical detection of sufficient cause for
explaining every days delay.

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Following are the instances when the delay can be condoned:

1. Subsequent changes in the law
2. Illness of the party
3. Party being a Pardanishin Lady
4. Imprisonment of a party
5. The party belongs to a minority group who has insufficient funds
6. Poverty or paupers
7. Party is a government servant
8. The delay is caused due to pendency of writ petition
9. The party is illiterate

Section 5 applies to all applications except an application under 21 of

code civil procedure. Order 21 of the code deals with the law relating to
the execution of decrees and orders. To obtain an extension of time by
invoking the provisions of section 5 of the Act, the party seeking
extension must satisfy the court that he had sufficient cause for not
filing the suit, appeal, revision or objections within the prescribed
period.
In Ram Lal v. Rewa Coalfields Ltd, SC held that there are two
important considerations which have to be borne in mind while
considering the condonation of delay:
1. The expiration of the period of limitation gives rise to the legal
rights in favor of the decree-holder to treat the decree passed in
their favor as binding between the parties. The legal right which
is accrued to the decree-holder by lapse of time should not be
lightly disturbed.
Â
2. If sufficient cause for the execution of delay is shown, then the
discretion is given to the court to condone the delay and admit the
appeal. Even if sufficient cause has been shown, the party is not
entitled to the condonation of delay in question as a matter of
right. Proof of sufficient cause is a condition precedent in the
exercise of the discretionary jurisdiction.
Therefore, there is no exhaustive list of grounds on which the delay can
be condoned. It has to be decided on the facts and circumstances of
each case.

Conclusion
The main objective that the Limitation Act, 1963 serves is to primarily
provide a bar upon the time limit within which the aggrieved party can
institute a suit, application or appeal in the court. The term limitation
should be literarily interpreted as the term itself states its meaning i.e.
restriction or the rule or circumstances which are limited.

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Condonation of delay is the remedy provided to the parties if they fail to

approach the court during the limit that the law has provided to them.
This remedy is exercised at the discretion of the court. There are
instances where the court did not allow condoning an application for a
single day which there are instances where the court condoned the
application after years.

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Discuss the provisions relating to institution of suits by persons

suffering from legal disability.

What Does Limitation Act, 1963 Say?

The Limitation Act of 1963 establishes the time limits within which an
aggrieved party can approach the court seeking relief and justice. If a
suit is filed after the specified time limit, it is deemed invalid due to the
law of limitation.
The primary aim of this law is to safeguard the rights of long-standing
users and indirectly penalize individuals who have neglected their rights
for an extended period. According to the Act, any person must initiate
a suit or make a request within the timeframe specified in its schedule.

The Need for Recognition of Legal Disability

However, there are circumstances where a person, due to physical or
mental incapacity, is unable to file a suit or make an application. In
such cases, the law acknowledges the need for additional rights and
benefits for individuals with disabilities.

What is Legal Disability in the Limitation Act 1963?

Legal Disability under Limitation Act refers to the lack of legal capacity
to perform an action due to insufficient physical and mental abilities. It
denotes the incapacity of a person to exercise all the legal rights that an
average person possesses.
Section 6 of the Act addresses situations where a person entitled to
initiate a suit or file an application for the execution of a decree is a
minor, insane or mentally disabled. It states that such a person can file
a suit or make an application once the disability ends, as specified in
the Act’s schedule. If a person is affected by multiple disabilities, they
can file a suit or make the application when both disabilities cease.
In cases where the legal disability continues until the person’s death,
their legal representatives can file the suit or make the application after
the person’s demise. If the legal representatives are affected by a
disability other than death, the aforementioned provisions still apply.
Furthermore, if a person with a disability passes away after the
disability has ended but before the deadline set by this section, their
legal representative may file a lawsuit or application within the same
timeframe as if the person were still alive.
It is important to note that, according to this section, the term “minor”
encompasses a child in the womb of the mother.

Kinds of Legal Disabilities

Section 6(1) of the Limitation Act, 1963 provides three types of legal
disabilities:

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Minor
The first legal disability under Limitation Act is related to the age of an
individual, known as “minor.” According to the Indian Majority Act,
1875, an individual attains majority at the age of eighteen. It is
important to note the following points as per Section 3(2) of the Indian
Majority Act:
 The day of birth is considered as a whole day.
 The individual is considered a major when the 18th anniversary
of their birth begins.
The Indian Majority Act, 1875 is applicable to individuals of all religions
and can be considered a secular law. However, personal laws may have
different provisions regarding the age of majority. The Indian Majority
Act also considers a child in the womb as a minor. In cases where the
court appoints a guardian for the welfare of a minor before they turn
eighteen, the age of the minority is extended to twenty-one.

Insanity
The second legal disability is “insanity.” The Supreme Court, in the case
of S.K. Yadav v. State of Maharashtra, discussed the concept of legal
insanity. The court held that legal insanity is recognized by the courts,
as distinct from medical insanity. There is no specific test to prove legal
insanity, but even if medical insanity is established in lower courts, it
must be proven again in higher courts. To determine whether a person
is legally insane, their behaviour, antecedents and events before, during
and after the incident must be considered.

Idiot
In the case of Hari Singh Gond v. State of Madhya Pradesh,
the Supreme Court defined four sub-types of non-compos mentis,
including “idiot.” An idiot is someone who is unable to count the days
of the week, lacks sane memory since birth and cannot count up to
twenty.
A lunatic experiences periods of sanity interspersed with bouts of erratic
behaviour, such as in the case of epilepsy. Madness is considered a
permanent condition. Lunacy and madness are categorized as acquired
insanity, while idiocy is seen as natural insanity. This means that while
a person can become lunatic or mad at any time during their lifetime,
idiocy is present since birth.

Rules Relating to Legal Disability in Limitation Act

The rules related to legal disability under Limitation Act is discussed
under Section 6 to 9. They can be briefed as:

What is Section 6 of the Limitation Act?

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The rule regarding minors states that the limitation period does not run
against a minor. Section 6 does not provide a fresh starting point of
limitation. Instead, it allows individuals with disabilities to seek an
extension of time before the expiration of the period mentioned in the
Schedule, calculated from the end of their legal disability. However,
there is a limitation to this extension as provided under Section 8.

Under Section 6, individuals who are insane, minors and idiots are
exempted from filing a suit or application within the prescribed time
mentioned in the law due to their legal disability. They are allowed to
file a suit or application once their legal disability has ceased and the
counting of the limitation period starts from the day their disability
ends.
It’s important to note that idiots, minors and insane individuals fall
under the category of legal disability under Limitation Act. Furthermore,
this section applies when a suit is brought by a disabled person, not
against them. The legal disability as per Limitation Act, must be present
at the time when the limitation period is considered. The suit or
application for the execution of an order should be relevant to the
proceedings at the time.

The limitation period for the proceedings should be mentioned in the

third column of the schedule to the Limitation Act.

Scope of Section 6 with CPC

The scope of Section 6 of the Limitation Act in relation to the Code of
Civil Procedure (CPC) is as follows:
 Appeal by a Minor: Section 6 does not provide an extension of
time for a minor to prefer an appeal. It only applies to suits or
applications for the execution of an order.
 Application under Order 21, Rule 90: Section 6 does not cover
an application under Order 21, Rule 90 of the CPC, which seeks
to set aside a sale held in execution. This was established in the
case of Bholanath v. Sayedatunnisia.
 Application for Readmission of Appeal: Section 6 does not apply
to an application for the readmission of an appeal under Order 41,
Rule 10 of the CPC.
 Bringing on Record Legal Representative: Section 6 is not
applicable for bringing on record the legal representative of a
deceased party.
 Application for Final Decree in Mortgage Suit: An application
to obtain a final decree for sale in a mortgage suit is not considered
an application for the execution of the preliminary decree for sale.
Therefore, Section 6 does not apply to such an application.

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 Application for Supplementary Decree: An application for a

supplementary decree under Order 34, Rule 6 is not categorized
as an application for execution. Hence, it does not fall within the
purview of Section 6.
 Claim under Section 110-A of the Motor Vehicle Act: A claim
under Section 110-A of the Motor Vehicle Act, 1939, which is in
the nature of a suit under the CPC, would be covered under
Section 6 of the Limitation Act.

Who is Entitled to the Benefit of Section 6?

In the case of Bailchon Karan v. Basant Kumari Naik, it was
established that only an individual who is entitled to file a suit or
application can claim the benefit of Section 6 (legal disability). If an
individual does not have the right to sue or apply within the initial
limitation period but is later allowed to do so, they cannot avail
themselves of the provisions of Section 6.
In the case of Zafir v. Amiruddin, it was held that Section 6 is
applicable when one plaintiff is an idiot, minor or insane or when there
are multiple defendants who fall under the disabilities mentioned in
Section 6.

Additionally, in the case of Abed Hossain v. Abdul Rahman, it was

ruled that if one person’s limitation period has already started running
and another person subsequently becomes entitled to sue on the same
cause of action, Section 6 is not applicable. There is no fresh starting
point of limitation and the legal disability of the latter person at the time
when they become entitled to sue is not a valid ground for extending the
limitation under Section 6.

Combination with other Sections 3, 7, 8, 9

The Limitation Act contains important provisions regarding legal
disabilities, particularly Sections 6, 7 and 9, which provide detailed
insights into various aspects of these disabilities. These sections
complement each other effectively.
Section 3 of the Limitation Act is of great significance as it deals with
the prescribed time periods within which parties must file their cases.
Failure to file within these time limits results in the application of the
concept of limitation. However, certain exceptions are also provided for
in this section for exceptional circumstances, which are covered by
Sections 4 to 24 of the Limitation Act.

Sections 6 and 7 of the Act are specifically relevant as they allow parties
to file suits even after the expiration of the limitation period if the
disabilities of a minority, insanity or madness are involved.

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It is important to note that the legal disability must actually exist at the
time when the limitation period is scheduled to commence. No future
disability can reset the limitation period once it has already begun, as
stated in Section 9 of the Limitation Act. If a person has multiple
disabilities, i.e., at least two or if they have overcome one legal disability
and acquired a new one as per Section 6(2), then they can file a
complaint once all these disabilities have ceased to exist or the most
recent disability has ceased to exist.

Section 8 clarifies that there is no provision for pre-emptive action in

such cases and the limitation period is three years from the death of the
individual or the termination of their legal disability under Limitation
Act.

Section 8 of the Limitation Act

Section 8 of the Limitation Act serves as an ancillary provision to Sub-
Sections 6 and 7, providing certain limitations and restrictions. It does
not confer significant rights on its own but functions as a proviso to
Sub-Sections 6 and 7.

For example, in a situation where a father, acting as a trustee, makes

an alienation on behalf of himself and his three minor sons and the
eldest son attains majority two years before the father’s death, a
partition suit seeking separate ownership by the sons of their 2/3rd
share based on the argument that the father’s alienation was not
binding on them. If this suit is filed more than three years after the
father’s death, but within the two-year period after the eldest son
attains majority, the applicability of Section 8 comes into play.

The Supreme Court has ruled that there is a cumulative effect of

Section 6 and Section 8. The duration within which a person with a
legal disability may sue is determined by the third column of the
relevant article of the Limitation Act. However, Section 8 acts as a
special limitation and exception, stating that the extended period after
the termination of the legal disability shall not exceed three years from
the cessation of the disability or the death of the individual with
disabilities.

The Supreme Court further emphasizes that in any case, the litigant is
entitled to a fresh starting point for limitation from the date of
termination of the legal disability. However, it is important to note that
the extension of time granted by Section 6 or Section 7 should not
exceed three years from the date of cessation of the disability.

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Extension of Legal Disability under Limitation Act

The present Section, as a proviso to Section 6, imposes a condition that
the extension of time shall not exceed three years from the cessation of
the legal disability. This means that the maximum extension allowed
under this clause is three years, even if the ordinary limitation period
for bringing an action is shorter than three years. However, if the
remaining duration is already longer than three years, no further
extension can be granted.

The calculation of the limitation period starts from the termination of

the legal disability or the death of the person affected by the disability.
Therefore, the plaintiff must establish that they attained a majority
within three years prior to filing the suit. Spouses or assignees of a
person with a disability are not entitled to the benefits provided under
Sections 6 to 8.

If the prescribed limitation period for a suit is longer than three years,
a minor has two options. They can either file the suit within the specified
period, if it expires during their minority or they can wait for the entire
duration of the limitation period to run and then file the suit before it
expires, taking advantage of the provisions of Section 8. In this case,
the suit must be brought within three years from the termination of the
disability.

When Section 8 refers to the cessation of legal disability, it signifies the

termination of the disability resulting from the loss of the party’s
capacity to grant a valid discharge. The discharge will cease if an
individual within the community acquires the capacity to grant a valid
discharge without the involvement of others.

Pre-Emption Suits for Legal Disability

Regarding pre-emption suits, the extended limitation period mentioned
in Section 6 or Section 7 does not apply. As the right of pre-emption
should be promptly claimed by a minor or any other person with a legal
disability under Limitation Act, there is no justification for delay in
asserting that right.

Rules Pertaining to Legal Disability under Limitation Act

The sections and rules you have mentioned relate to legal disabilities
under Limitation Act and their implications in legal proceedings:
 Order 8 Rule 5(1) of the CPC: This rule states that if a specific
charge has not been clearly denied or admitted by the defendant,
it must be expressly admitted, except in the case of persons with
legal disabilities. This means that persons with legal disabilities
may not be required to expressly admit or deny certain charges.

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 Section 6(3) of the Limitation Act: This section allows legal

representatives to bring an action on behalf of a person with a
legal disability after their death. It enables the continuation of
legal proceedings even after the death of a person with a legal
disability under the Limitation Act.
 Order 22 Rule 3(1) of the CPC: This rule allows the legal
representatives of a deceased plaintiff party to continue with the
suit. It ensures that the legal representatives can step into the
shoes of the deceased and pursue the case.
 Rule 4A of Order 22 of the CPC: According to this rule, if no legal
representatives are available, the court has the power to appoint
a deputy general or an officer of the court to represent the estate
of the deceased person. This ensures that the interests of the
deceased person are represented even when there are no legal
representatives.
 Order 23 Rule 1(1) of the CPC: This rule states that an action in
which the applicant is a minor or falls under the provisions of
Order 31 can be withdrawn only with the court’s satisfaction on
grounds such as formal defect or the existence of grounds for filing
a fresh suit. It ensures that the court’s consent is obtained before
withdrawing such cases.
 Rule 3 of Order 23 of the CPC: This rule further clarifies the
conditions under which a case can be withdrawn. It specifies that
the court must give its consent based on formal defect or grounds
for filing a fresh suit before allowing the withdrawal.
 Rule 12 of Order 32 of the CPC: This rule deals with cases filed
by minors, allowing them to obtain a majority during the course
of the proceedings. It states that if a minor, upon attaining a
majority, decides not to pursue the case, dismissal of the case may
not be appropriate.

These sections and rules provide provisions and guidelines to ensure

that persons with legal disabilities are appropriately represented and
their rights are protected in legal proceedings.

Relevant Case Laws Pertaining to Legal Disability under Limitation

Act
Although this list is not comprehensive, it includes significant cases
from various high courts and the Supreme Court, which have played a
crucial role in establishing procedures related to legal disability under
Limitation Act. Some of the important cases are:

Darshan Singh v. Gurdev Singh

This case emphasizes that Section 6 of the Limitation Act allows minors,
cowards or idiots to bring an action or make an application within the

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specified time period after the legal disability has ended. However, the
extension of the limitation period under Section 6 is subject to the
condition that the period of extension does not exceed three years after
the death or termination of the legal disability under Limitation Act.

Udhavji Anandji Ladha v. Bapudas Ramdas Darbar

This case clarifies that Section 6 of the Limitation Act applies only if
there is a legal disability present when the limitation period starts. If a
person does not suffer from any legal disability at the commencement
of the limitation period, they cannot invoke the relaxation provided by
Section 6. The limitation period for suits by minors should be
considered as per Section 6, rather than the general period mentioned
in Schedule 1 of the Limitation Act.

Lalchand Dhanalal v. Dharamchand and Ors

In this case, it was held that the cause of action or grievance must occur
when the complainant (administrator) dies and the limitation period
starts from that point. Subsequent disability does not reset the time
under Section 9 of the Limitation Act. The benefit of legal disability
under Limitation Act can only be claimed if the disability exists at the
commencement of the limitation period.

Bapu Tatya Desai v. Bala Raojee Desai

This case highlights that Section 7 of the Limitation Act is meant to
restrict the indulgence available to minors. The benefit of Section 6
should not extend to a significantly longer period but only until the
eldest of the minors reaches the age of majority.

Smt. Usha Rani Banerjee & Ors v. Premier Insurance Company Ltd
This case interprets Section 7 as an exception to the general principle
of Section 6. If multiple persons are jointly entitled to file a suit and one
of them is under a legal disability, the limitation period will not run
against any of them until the disability ceases to exist. However, if one
of the persons entitled to sue can grant a discharge without the
involvement of the others, the limitation period will begin to run against
both of them.

Conclusion
Legal disability under Limitation Act includes minority, insanity or
mental disability. It serves as a safeguard to protect individuals who are
unable to fully comprehend their legal rights and responsibilities. By
temporarily suspending the ability to initiate legal proceedings, it
ensures that vulnerable individuals are not taken advantage of during
periods of diminished capacity. Moreover, it allows for a fair and

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equitable legal process, as it requires parties to possess the necessary

competence to actively participate in legal proceedings.

The Limitation Act incorporates various sections, namely Sections 6, 7,

8 and 9, to address different aspects of legal disability. These sections
collectively define the parameters within which legal disability operates.
Section 6 serves as the primary provision, while Sections 7, 8 and 9
further expand on specific situations where legal disability under
Limitation Act may apply.

Effects of Fraud on the period of limitation.

Suit of Civil Nature in CPC

Section 9 of CPC
According to Section 9 of the Code of Civil Procedure, a civil court
maintains jurisdiction over all civil suits, unless specifically prohibited.
The section states:

"The Court shall (subject to the provisions herein contained) have

jurisdiction to try all suits of a civil nature excepting suits of which their
cognizance is either expressly or impliedly barred.

Explanation I: A suit involving the contestation of rights to property or

an office is considered a civil suit, regardless of whether such rights
hinge solely on matters of religious rites or ceremonies.
Explanation II: This section disregards whether any fees are associated
with the office mentioned in Explanation I, or whether such office is
linked to a specific location."

Suit of Civil Nature

For a civil court to exercise jurisdiction over a suit, the initial
requirement is that the suit must fall within the realm of civil nature.
But what exactly constitutes a suit of civil nature? The term "civil" lacks
a specific definition in the Code.
However, according to dictionary definitions, it pertains to the private
rights and remedies of a citizen, distinct from criminal or political
matters.

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The term "nature," on the other hand, refers to the fundamental

qualities, identity, or essential character of a person or thing. It carries
a broader connotation.

Consequently, the phrase "civil nature" encompasses a wider

scope than "civil proceeding."
A suit is deemed of civil nature if its primary question concerns the
determination and enforcement of civil rights. It's not the legal status of
the parties involved that defines whether a suit is civil or not, but rather
the subject matter under consideration.
Therefore, the crux lies in whether the suit revolves around the
adjudication and enforcement of civil rights.

The term "suit of a civil nature" encompasses the private rights and
obligations of citizens, excluding political and religious matters. If the
principal issue in a suit pertains to caste or religion, it is not considered
a suit of civil nature.

However, if the main question revolves around civil rights, such as

property or office rights, and incidental issues involve caste or religious
aspects, the suit remains within the realm of civil nature. In such cases,
the jurisdiction of a civil court is not precluded.

The court holds authority to adjudicate on these incidental matters to

resolve the primary civil issue.

Explanation II, introduced by the Amendment Act of 1976, addresses

the ambiguity surrounding suits concerning religious offices with no
associated fees or location. It clarifies that such suits are indeed suits
of a civil nature, irrespective of whether fees are attached or if the office
is tied to a specific place.

This explanation eliminates previous discrepancies in judicial

interpretation regarding the civil nature of suits related to religious
offices, providing clear guidance on their maintainability in civil courts.

Most Rev. P.M.A. Metropolitan v. Moran Mar Marthoma

In the case of Most Rev. P.M.A. Metropolitan v. Moran Mar Marthoma,

the Supreme Court provided an insightful explanation of the concept of
jurisdiction under Section 9 of the Code of Civil Procedure.

The Court highlighted the expansive nature of the section, noting its
inclusive language that both opens the door widely and only bars suits
that are expressly or impliedly prohibited.

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The Court emphasised the legislative intent behind Section 9,

particularly elucidated through its two explanations. These
explanations underscore the extension of the section's operation to
religious matters involving property or office rights, regardless of
whether fees are attached to the office.

The language used in the section is described as simple yet explicit,

structured on the fundamental principle that the absence of
enforcement mechanisms renders rights meaningless.

By analysing the heading of the section and the use of words like "shall"
and "all suits of a civil nature," the Court emphasised the mandatory
nature of the section and the obligation it imposes on courts to entertain
suits falling within its description.
The term "civil" is defined broadly, encompassing rights and remedies
sought through civil actions, distinct from criminal proceedings. The
inclusion of the term "nature" further expands the scope of the section,
encompassing disputes that affect one's rights and are not only civil but
also of civil nature.

The Court clarified that Section 9 of the Code of Civil Procedure applies
to all disputes characterised by affecting one's rights, extending its
jurisdiction to a wide range of cases beyond mere civil proceedings.

Examples
The following are suits of a civil nature:

(i) Suits Relating to rights to property;

(ii) Suits Relating to rights of worship;
(iii) Suits relating to taking out of religious processions;
(iv) Suits relating to right to shares in offerings;
(v) Suits for damages for civil wrongs
(vi) Suits for specific performance of contracts or for damages for breach
of contracts;
(vii) Suits for specific reliefs;
(viii) Suits for restitution of conjugal rights;
(ix) Suits for dissolution of marriages;
(x) Suits for rents;
(xi) Suits for or on accounts;
(xii) Suits for rights of franchise;
(xiii) Suits for rights to hereditary offices;
(xiv) Suits for rights to Yajman Vritis;
(xv) Suits against wrongful dismissals from service and for salaries, etc

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The following are not suits of a civil nature:

(i) Suits involving principally caste questions;

(ii) Suits involving purely religious rites or ceremonies;
(iii) Suits for upholding mere dignity or honour;
(iv) Suits for recovery of voluntary payments or offerings;
(v) Suits against expulsions from caste, etc.

Expressly or Impliedly Barred

When a litigant seeks redress for a civil matter, they have the right to
initiate a civil suit unless its cognizance is explicitly or implicitly
prohibited.
A suit is considered "expressly barred" when it is prohibited by a current
enactment. Competent legislatures have the authority to restrict the
jurisdiction of civil courts regarding specific types of civil suits.

This includes matters falling exclusively within the jurisdiction of

Revenue Courts, or those governed by the Code of Criminal Procedure,
as well as issues handled by specialised tribunals established under
relevant statutes.

Examples of such tribunals include Industrial Tribunals, Election

Tribunals, Rent Tribunals, Income Tax Tribunals, Motor Accident
Claims Tribunals, and domestic tribunals like Bar Councils and Medical
Councils.

However, if the remedy provided by a statute proves inadequate and

certain questions cannot be fully addressed by a special tribunal, the
jurisdiction of a civil court remains intact and is not ousted.

In situations where a statute grants finality to the decisions of a

specialised tribunal, the jurisdiction of civil courts must be deemed
excluded, provided there is an adequate remedy available to address
matters typically handled by civil courts.

Consequently, each case necessitates scrutiny to determine whether the

statute offers appropriate rights and remedies, and whether its
procedural framework effectively replaces that of a civil court.

Essentially, the examination revolves around whether the statute in

question provides sufficient mechanisms for resolution and redress,
and whether its provisions are structured in a manner akin to those of
civil court procedures.

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A suit is considered "impliedly barred" when it is prohibited by general

legal principles. When a statute provides a specific remedy, it effectively
precludes individuals from seeking redress through any other means
apart from those outlined in the statute (Jitendra Nath v Empire India
and Ceylon Tea Co. AIR 1990 SC 255).
Similarly, certain civil suits, although falling within the realm of civil
nature, may be barred on grounds of public policy.

Examples include suits by a witness to recover money promised in

exchange for testimony, suits based on agreements deemed void due to
public policy considerations, and suits for damages against judicial
officers for actions taken in the course of their duties.

In Laxmi Chand v Gram Panchayat, Kararia (AIR 1996 SC 523), it was

determined that the Land Acquisition Act establishes a comprehensive
framework, thereby implicitly excluding the jurisdiction of civil courts
to adjudicate cases arising under the Act.

Presumption as to Jurisdiction
It is well-settled that a civil court has inherent power to decide its own
In dealing with the question whether a civil court's jurisdiction to
entertain a suit is barred or not, it is necessary to bear in mind that
every presumption should be made in favour of the jurisdiction of a civil
court.

The exclusion of jurisdiction of a civil court to entertain civil causes

should not be readily interred unless the relevant statute contains an
express provision to that effect, or leads to a necessary and inevitable
implication of that nature.

Burden of Proof
It is well-settled that it is for the party who seeks to oust the jurisdiction
of a civil court to establish it. It is equally well-settled that a statute
ousting the jurisdiction of a civil court must be strictly construed.*
Where such a contention is raised, it has to be determined in the light
of the words used in the statute, the scheme of the relevant provisions
and the object and purpose of the enactment.
In the case of a doubt as to jurisdiction, the court should lean towards
the assumption of jurisdiction.

Exclusion of Jurisdiction of Civil Court: Principles

In the landmark case of Dhulabhai v. State of M.P., Chief Justice
Hidayatullah outlined several key principles regarding the exclusion of
jurisdiction of civil courts:

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(a) When a statute grants finality to the decisions of special tribunals,

the jurisdiction of civil courts is excluded if there exists an adequate
remedy equivalent to what civil courts would typically provide.
However, this exclusion does not extend to cases where the provisions
of the Act are not followed or when the tribunal fails to adhere to
fundamental principles of judicial procedure.

(b) If there is an express bar on the jurisdiction of a court, an

assessment of the adequacy of the remedies provided by the Act's
scheme may be relevant but not decisive in maintaining the jurisdiction
of civil courts.
In cases where there is no express exclusion, an examination of the
remedies and the Act's scheme becomes necessary to determine the
legislative intent.

This includes assessing whether the statute creates a special right or

liability and mandates that tribunals constituted under the Act
determine all questions related to such rights or liabilities.

(c) Challenges to the constitutionality of provisions in a particular Act

cannot be brought before tribunals established under that Act. Even the
High Court cannot entertain such questions through revision or
reference from tribunal decisions.
However, if a provision is declared unconstitutional or its
constitutionality is challenged, a civil suit is permissible. A writ of
certiorari may include a direction for refund if the claim is within the
prescribed time limit under the Limitation Act, but it is not mandatory
to substitute a suit.

(d) In cases where a specific Act lacks provisions for refund of taxes
collected in excess of constitutional limits or unlawfully collected, a civil
suit is permissible.
(e) Questions regarding the correctness of an assessment, aside from its
constitutionality, are within the jurisdiction of the authorities. A civil
suit is not maintainable if the authorities' decisions are deemed final or
if there is an express prohibition in the Act.
In both scenarios, an examination of the Act's scheme is warranted.

(f) Exclusion of the jurisdiction of civil courts should not be readily

inferred unless the conditions outlined above are met.

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What are the rules regarding institution of suits? Explain.

Institution of Suit under CPC

The institution of suit under CPC is a foundational element of the Indian
legal system, marking the formal commencement of a civil legal action.
This process allows individuals and entities to seek legal redress for
disputes in a structured and orderly manner.

At the heart of the institution of suit is the filing of a “plaint” by the

plaintiff, outlining the facts of the case, the legal grounds for their claim
and the relief they are seeking. Jurisdiction and court fees are crucial
considerations, ensuring that the right court handles the case and that
the necessary costs are covered.
Once the suit is instituted, the legal proceedings take their course,
leading to the court’s judgment or decree. The institution of suit under
CPC is a fundamental step in the pursuit of justice and resolution of
civil conflicts in India’s legal landscape.

What is a Suit?
The term ‘suit’ is not specifically defined in the CPC, 1908. According to
Black’s Law Dictionary, 4th edition, a ‘suit’ is a general term that covers
any legal action where one person or a group of people take legal action
against another in a court to seek a remedy provided by the law for
addressing a harm or asserting a right, whether it’s a matter of law or
equity.
A ‘suit’ is a formal legal process initiated by filing a complaint to enforce
civil or substantive rights against either the government or an
individual. When a ‘suit’ is concluded, it leads to the issuance of a legal
judgment or decree. Without a ‘suit,’ there can be no such judgment.

In the Ethiopian Airlines v. Ganesh Narain Saboo case from 2011, the
Supreme Court explained that the term ‘suit’ is a broad term
encompassing all actions taken by a person to enforce a legal right
granted by the law.
In the significant case of Hansraj Gupta & Others v. Dehra Dun-
Mussoorie Electric Tramway Co. Ltd. in 1932, the Privy Council ruled
that a civil legal proceeding begins with the submission of a complaint.

Meaning of Institution of Suit

Institution of suit under CPC refers to the formal commencement of a
legal action or civil suit by a plaintiff against a defendant in a court of
law. The institution of suit initiates the legal process by which the
plaintiff seeks a legal remedy, such as a judgment, order or decree, for
a particular issue or dispute.

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The key components of the institution of suit under CPC typically

include:
 Filing a Plaint: The plaintiff starts the process by filing a written
statement known as a “plaint” in the appropriate court. The plaint
outlines the facts of the case, the legal basis for the claim and the
relief or remedy sought.
 Court Selection: The plaintiff must choose the correct court with
jurisdiction to hear the case, meaning that the court has the legal
authority to handle the specific type of dispute and is located
within the appropriate geographic area.
 Payment of Court Fees: The plaintiff is generally required to pay
the prescribed court fees, which may vary depending on the
nature and value of the suit, as per the Court Fees Act, 1870.
 Service of Summons: After the institution of the suit under CPC
the court issues a summons to notify the defendant of the legal
action and require their appearance in court to respond to the
plaintiff’s claims.
 Proceedings: Once the defendant receives the summons and
responds, the legal proceedings unfold, including the presentation
of evidence, legal arguments and ultimately the court’s judgment
or decree.
In summary, the institution of suit under CPC is the formal initiation of
a civil legal action, marking the beginning of the legal process to address
and resolve a specific dispute between parties through a court of law.

How Institution of Suit under CPC is Done?

Section 26 and Order IV provide the guidelines for initiating legal
proceedings. Section 26 specifies that every civil suit must begin by
presenting a written statement (called a plaint) in duplicate or as per
the rules set out in the Code of Civil Procedure, to the court or an
authorised officer. The facts presented in the plaint must be supported
by an affidavit. To understand this better, we should also consider
Order IV, VI and VII of the first schedule.
Rule 1 of Order IV should be considered alongside Section 26 to expand
on the legal requirements outlined in the section. This rule states that
a civil suit is considered officially started only when a duplicate of the
plaint is presented either directly to the court or to a designated officer.
Furthermore, the said plaint must adhere to the regulations outlined in
Order VI and VII.
Section 80 of the CPC mandates that, in cases where the defendant is
the government or a public officer, a legal notice must be delivered
before filing a civil suit. However, it’s important to note that not all civil
suits require such a notice. In some situations, lawyers send legal
notices before initiating civil cases to inform the defendant that they are

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making a final effort to resolve the dispute. This is typically done as a

precautionary measure.
The procedural steps for institution of a suit under CPC include:
 Drafting a plaint (a formal written statement outlining the case)
 Selecting the appropriate court for filing the civil suit (the place of
suing)
 Presenting the plaint to the court or a designated officer.

Plaint
The institution of a suit under CPC starts with a plaint. A “plaint” is a
legal document through which a plaintiff asks the court for
compensation for any harm caused by the defendant. While there is no
strict format for drafting a plaint, Order VII, Rule 1 of the CPC provides
specific requirements for its content. A plaint should include the
following information:
 The name of the court where the civil suit is filed.
 The plaintiff’s name, description and address.
 The name, description and address of the defendant, to the extent
known.
 If the plaintiff or defendant is a minor or a person of unsound
mind, a statement to that effect is needed.
 The facts that give rise to the legal claim and when they occurred.
 The facts that establish the court’s jurisdiction.
 The type of relief or compensation the plaintiff is seeking.
 If the plaintiff has accepted a set-off or waived part of their claim,
the amount they’ve allowed or waived.
 A statement of the value of the subject matter of the civil suit for
determining jurisdiction and court costs, to the extent applicable.

In the case of Kavita Tushir v. Pushpraj Dalal (2022), the Delhi High
Court ruled that a plaint cannot be rejected in parts; it must be either
accepted or rejected in its entirety. This means that a plaint should be
considered as a whole and if it is found deficient or problematic, it
should be rejected in its entirety rather than in parts.
Grounds for rejecting a plaint, as outlined in Order VII, Rule 11, include:
 When there is no valid cause of action presented.
 If the relief sought is undervalued and the plaintiff fails to update
the valuation as directed by the court within a specified period.
 When the relief sought is correctly valued but the plaint is not
sufficiently stamped and the plaintiff is instructed by the court to
provide the necessary stamp paper within a given deadline but
fails to do so.
 If the statements in the plaint indicate that the civil suit is
prohibited by any law.
 When the plaint is not filed in duplicate.

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 If the plaintiff fails to comply with the provisions of Rule 9.

Appropriate Place of Suing

Sections 15 to 20 of the CPC address the location or place where
institution of a suit under CPC can be done.
Section 15 specifies that the plaintiff should file their civil suit in a court
with the lowest level of competence.
Section 16 outlines that suits must be initiated within the local
jurisdiction where the subject property is situated in cases involving:
 Recovery of immovable property (with or without rent or profits).
 Partition of immovable property.
 Foreclosure, sale or redemption of a mortgage or charge on
immovable property.
 Determination of any other right or interest in immovable
property.
 Compensation for damage to immovable property.
 Recovery of movable property under distraint or attachment.
If a suit is filed for relief or compensation for a wrongful act to
immovable property and it can be effectively obtained through the
defendant’s presence, it may be filed in a court within the local
jurisdiction where the property is located or where the defendant
resides, carries on business or earns a livelihood. This is based on the
principle of “equity acts in personam,” which means that equity applies
to a person rather than to property.
Section 17 discusses the jurisdiction of suits involving immovable
property located in the jurisdictions of different courts. When
immovable properties are situated in separate jurisdictions, the suit can
be filed in any court within the local jurisdiction where any portion of
the property is located, as long as the cause of action for both properties
is the same.

In the case of Shivnarayan v. Maniklal (2019), the Supreme Court

clarified that under Section 17 of the CPC, the term ‘property’ can refer
to more than one property. Suits related to different properties can be
filed in any court with jurisdiction if the cause of action is the same.
Section 18 addresses the location for initiating a civil suit in situations
of uncertain court jurisdiction. When there’s doubt about which court
should handle a case involving immovable property, any of the courts
involved can make a statement noting the uncertainty. If the court
accepts this uncertainty and proceeds to hear the case, its judgment
will be as valid as if the property was within its local jurisdiction.
However, the court in question should still be competent based on the
nature and value of the case.
If a statement is not made under Section 18(1) and an objection is later
raised before an Appellate or Revisional Court that the original court

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lacked jurisdiction over the property’s location, the objection will only
be entertained if there was no reasonable doubt about the jurisdiction
at the time of the suit’s initiation, resulting in an injustice.
Section 19 pertains to suits seeking compensation for harm to a person
or movable property. In such cases, the plaintiff can choose to file the
suit either in the jurisdiction where the defendant resides, conducts
business or earns a livelihood or where the property is situated.
Section 20 serves as a general provision for determining the location for
filing a civil suit. It deals with the initiation of suits where the defendant
resides, conducts business, earns a livelihood or where the cause of
action wholly or partly arises within the court’s jurisdiction. If there are
multiple defendants when the suit begins, it can be initiated in a court
where any of the defendants resides, conducts business or earns a
livelihood, provided that the plaintiff obtains permission from the court.
If the defendants agree to the chosen location, there is no need for court
permission.

Presentation of Plaint
Order VII Rule 9 outlines the procedures for admitting a plaint for
institution of suit under CPC. According to this rule:
 The court will issue orders for serving summons on the defendants
as per the guidelines in Order V, Rule 9.
 The plaintiff is required to provide as many copies of the plaint as
there are defendants and should also pay the prescribed fee for
serving these summons on the defendants within seven days of
the court’s order.
 The plaintiff must specify in what capacity the defendant or
defendants are being sued, especially if they are acting on behalf
of others. If there is a need to amend these statements to ensure
they align with the contents of the plaint, the plaintiff may request
permission from the court.
 The chief magistrate officer of the court will verify and approve
these lists, copies or statements if they are found to be accurate
and in order after examination.

Scope and Applicability of Section 26

In a civil civil suit, the responsibility for providing evidence lies with the
plaintiff. The plaintiff must demonstrate that the allegations against the
defendant are true and that the defendant is legally responsible for any
damages claimed. To initiate a civil suit, the plaintiff’s plaint should
include all the necessary details and supporting documentation.
Additionally, the prescribed court expenses, which typically represent a
small portion of the total claim or suit value, should be submitted along
with the plaint. The specific court fees and stamp duty amounts are

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determined by the Court Fees Act, 1870 and the Stamp Act, 1899, based
on the type of suit being filed.
Section 9 of the CPC deals with court jurisdiction to hear all civil suits,
with exceptions only when the law explicitly or implicitly prohibits it.

Formalities After the Institution of Suit under CPC

The institution of suit under CPC before a court or its designated officer
is detailed in Order IV, Rules 1 and 2.
Section 27 pertains to the issuance of summons to the defendant or
defendants. A summons, calling upon the defendant to respond to the
claim, is dispatched within thirty days after the suit is filed and it is
served as per the specified procedure.
Section 28 deals with serving summons to defendants residing in other
states. When a defendant resides in a different state, the summons
must be forwarded to the court in that state, following its established
rules. The receiving court acts as if it had issued the summons itself
and sends it back, along with a record of its actions, to the court that
initially issued the summons.
If the summons sent to another state is in a language different from the
court’s official language, a translation of the record is required:
 If the court issued the summons in Hindi, the translation must
also be in Hindi.
 If the record is in a language other than Hindi or English, the
translation must be provided in Hindi or English and delivered
with the record.

Section 29 addresses the service of foreign summons. Summons and

other legal documents can be presented by:
 Any Civil or Revenue Court established in India, even if the CPC
doesn’t apply.
 Any Civil or Revenue Court established or maintained by the
Central Government outside of India.
 Any other Civil or Revenue Court outside of India to which the
Central Government has extended the application of these
provisions through an official notification in the Gazette. These
documents can be delivered to courts within the areas covered by
this Code and served as if they were issued by those local courts.
Section 31 extends the principles of Sections 27, 28 and 29 to cover
witness summonses. This means that the procedures for issuing and
serving summonses for producing documents, materials or providing
testimony are governed by these sections.

Conclusion
The institution of suit under CPC is the formal initiation of a civil legal
action in a court of law. It involves the filing of a plaint by the plaintiff,

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specifying the facts and legal basis of the claim and the relief sought.
Choosing the appropriate court with jurisdiction, paying the required
court fees and serving a summons on the defendant are essential steps
in the process.
Once the suit is instituted in CPC, legal proceedings unfold, including
the presentation of evidence and legal arguments. The court ultimately
issues a judgment or decree to resolve the dispute. The institution of
suit is a critical step in seeking legal remedies and addressing civil
disputes through the judicial system.

What is a Written Statement?

The Code of Civil Procedure does not provide a clear definition for a
‘written statement.’ In simple terms, it is a written defence statement
submitted by the defendant, addressing all the important points raised
by the plaintiff in their complaint.
This statement includes objections to the plaintiff’s claims and can also
introduce new facts if needed. Think of it as the defendant’s version of
events, just as the plaintiff’s complaint represents their side. The rules
for the written statement are outlined in Order VIII of the Code of Civil
Procedure.
In the written statement, the defendant should present their case
succinctly. It should only contain the facts that support their defence,
not the evidence to prove those facts.

Pleading of New Facts

Regarding introducing new facts in a Written Statement in CPC,
according to Order VIII Rule 2, the defendant can present facts that the
plaintiff didn’t mention in their complaint if these facts demonstrate
that the lawsuit should not proceed.
However, these facts must be clearly and specifically stated, not in
vague or general terms. They should be brought up initially and cannot
be introduced at a later stage, such as during an appeal.
Denial of Facts
When it comes to responding to the plaintiff’s claims via Written
Statement, the defendant has two options: accepting or denying them.
If an allegation is not denied, it is considered accepted. Order VIII Rule
3 of the Code of Civil Procedure emphasises the importance of a clear
and specific denial. The defendant cannot simply provide a general
denial; they must address each allegation individually.
Furthermore, Order VIII Rule 4 states that an evasive denial or a denial
that does not directly address the substance of the claim does not count
as a valid denial. For example, if the defendant wishes to dispute the
plaintiff’s claim that they received a specific amount of money, they

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must explicitly deny receiving that amount and specify the alleged
amount. An evasive denial will be treated as an admission unless the
plaintiff’s complaint is also vague and general.

Who Can File a Written Statement?

A written statement is a document filed by the defendant in a legal case.
This document can be submitted by the defendant personally or
through an authorised representative, but it cannot be filed by someone
who is not directly involved in the legal dispute.
In situations where there are multiple defendants in a case, they can
choose to file a single, common written statement signed by all of them.
Alternatively, at least one of the defendants, who is knowledgeable
about the facts of the case, can verify and submit the written statement
on behalf of all the defendants. This allows for a unified response from
the defendants in the case.

When Should a Written Statement Be Filed?

Order VIII Rule 1 sets the timeframe for the defendant to submit a
written statement. Here’s a breakdown:

Initial Deadline: The defendant must file their written statement within
thirty days from when they receive the legal summons.

Extension Possibility: In certain situations, this thirty-day period can

be extended, but not beyond ninety days from the date of the court
serving the summons. However, any extension must be supported by
written reasons.

Commercial Disputes: In commercial disputes, the defendant is still

initially given thirty days to file their written statement after receiving
the summons. However, the court can extend this period for up to one
hundred and twenty days from the date of the summons. Once again,
the court must record its reasons for the extension and the defendant
may be required to cover any associated costs. If the defendant misses
these deadlines, they lose the right to file a written statement.

Late Submission: If the defendant cannot meet the prescribed time

frame, they should file the written statement as soon as possible along
with an application requesting the court’s permission for the delay.
However, this application should have a valid reason for the delay, one
that was beyond the defendant’s control. If the court finds the reason
acceptable, it will accept the application and proceed with the case;
otherwise, it will reject it.

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In the case of Mohammed Yusuf v. Faij Mohammad and Ors.

(2009), the defendant filed a written statement three years after the
prescribed deadline and requested the court to condone the delay.
However, the court initially rejected this application. Later, the
Allahabad High Court, responding to a writ petition filed by the
defendant challenging the rejection, allowed the application.
Nevertheless, the Supreme Court disagreed with the High Court’s
decision.

The Supreme Court ruled that the High Court should not have
intervened because there was no clear failure of justice or a glaring error
in the case record. The Supreme Court emphasised that extending the
time beyond the initial thirty-day period should not be automatic.
Courts should exercise caution and consider whether sufficient and
valid reasons exist to justify such an extension. Granting extensions
indiscriminately could undermine the pursuit of justice.

In the case of Christian Broadcasting Network Inc. v. CBN News (P)

Ltd. (2018), the Delhi High Court ruled that if a defendant fails to file
a written statement, the court can invoke Order VIII Rule 10 of the Civil
Procedure Code. In this specific case, the plaintiff, a broadcasting
services provider, discovered a YouTube channel operated by the
defendant that was identical to the plaintiff’s trademark. Despite
serving a cease and desist notice, the defendant did not comply.
Consequently, the plaintiff initiated a lawsuit. Since the defendant did
not submit a written statement, the plaintiff requested a temporary
injunction, which the court granted.

In another case, Nagaratnam Pillai v. Kamlathammal A (1945), there

was a question about whether Order VIII Rule 10 applies to Order VIII
Rule 9. Rule 9 specifies that parties cannot file
additional pleadings after submitting a written statement, except for
defences related to set-off or counterclaims. It also grants the court the
authority to request a written statement or additional written statement
from any party and set a deadline not exceeding thirty days for
submission. The court ruled that Order VIII Rule 10 relates to Rule 9,
confirming the court’s ability to request further written statements and
set appropriate time frames.

Consequences of Not Filing a Written Statement

According to Order VIII Rule 10, if a person required to file a written
statement fails to do so within the specified or court-permitted time
frame, the court has two options:

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Granting of Adjournment: The court can decide to grant an

adjournment to the defendant, providing additional time to submit the
written statement. However, it’s essential to note that Order XVII Rule
1 limits the number of adjournments to a maximum of three for each
party involved in the lawsuit. If, despite these adjournments, the
defendant still does not file the written statement, the court can proceed
to the second option.

Pass an Ex Parte Decree: The court has the discretion to issue an ex

parte decree against the defendant. This step is not mandatory and is
typically avoided initially. However, if the defendant repeatedly fails to
file a written statement even after multiple adjournments, the court can
choose to issue an ex parte decree against the defendant.

Appeal and Revision

In terms of appeal and revision in legal proceedings:
 Order VIII Rule 10 states that a decree will be issued following a
judgment. After this decree, an appeal can be filed under Section
96 of the Civil Procedure Code.
 Section 115 of the CPC grants the High Court the authority to
review or adjudicate upon such a decree through a process called
revision.
 It’s important to note that when a decree is appealable, meaning
it can be challenged through an appeal, the aggrieved party
cannot simultaneously apply for revision. The choice typically lies
between pursuing an appeal or seeking revision, depending on the
circumstances.

Inherent Powers of the Court

Regarding the inherent powers of the court:
 Section 151 of the CPC defines the inherent powers of the court.
 This section establishes that no provision within the Code can act
as a limitation on the court’s authority to issue orders in the
interest of justice or to prevent any misuse or abuse of the court’s
powers.
 In essence, Section 151 empowers the court to take necessary
actions, even if not explicitly provided for in the CPC, to uphold
justice and prevent any misuse of its processes.

Time Limit for Filing Written Statement

Order VIII Rule 1 states that the defendant must file a written statement
within 30 days from the date they receive the summons. However, an
amendment in 2002 added a proviso to this rule. According to this
proviso, if the defendant fails to file the written statement within the

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initial 30 days, they still have the opportunity to file it within a

maximum of 90 days from the date of receiving the summons.

Amendment to Written Statements

In the case of Usha Balasahed Swami v. Kiran Appaso Swami
(2007) 5 SCC 602, the Supreme Court provided a crucial clarification
regarding amendments to plaints and written statements in legal
proceedings. While the general rule restricts amendments that
substitute a cause of action or alter the nature of the claim in plaints,
this rule does not apply to written statements.
In other words, amendments to a written statement, such as adding
new defences or changing existing ones, including contradictory pleas,
are generally acceptable. However, the same level of flexibility may not
be extended to amendments in the plaint.
The Court emphasised that a more liberal approach should be taken
when allowing amendments to written statements, as the potential for
prejudice is higher in the case of the plaint. This decision is in line with
the principle that a defendant can take contrary or even contradictory
stands in their written statement without affecting their cause of action
or causing prejudice.

In Baldev Singh v. Manohar Singh (2006) 6 SCC 498, the Court also
recognised some similarities between amending plaints and written
statements. However, it underscored that the rule preventing the
plaintiff from amending their pleading in ways that materially alter or
change the nature of their cause of action does not necessarily apply to
amendments of written statements. This legal distinction is vital in
maintaining fairness and balance in the legal process.

Additional Written Statement under Order 8 Rule 9 of CPC

Order 8 Rule 9 of the Civil Procedure Code, which was omitted by the
CPC (Amendment) Act, 1999, has been reinstated by the CPC
(Amendment) Act, 2002. This change introduced a fixed time period for
subsequent pleadings. Now, the court must set a time for presenting
these pleadings and this time frame should not exceed thirty days.

It’s important to note that simply because an amendment appears

inconsistent with the defendant’s previous statements is not a valid
reason to reject the defendant’s request for an amendment. Generally,
in such cases, the court allows amendments or the filing of additional
written statements unless the party seeking the amendment is acting
in bad faith or if their mistake has caused significant harm to the other
party, which cannot be rectified by awarding costs.

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In cases where the omission resulted from negligence, carelessness, or

accidental error, the court may allow the defect to be corrected as long
as it does not result in unfairness to the other party.

Right to File Written Statement Closed Remedy

In a case before the Punjab and Haryana High Court in Beant Singh v.
Dilbagh Singh, a defendant was permitted to submit a written
statement in a civil suit even after the 90-day statutory period had
expired. The lawsuit was initiated against the defendant on 08-09-2017.
The defendant made his first appearance in court on 29-11-2017 and
the court adjourned the matter to 08-01-2018 for the defendant to file
the written statement.

However, no written statement was filed on that date and the court
granted another adjournment until 19-02-2018. Despite this final
opportunity, the defendant still failed to file the written statement within
the statutory 90-day period, leading to the striking off of his defence.

The defendant appealed this decision and the High Court considered
that the defendant had indeed been given two opportunities to file the
written statement after his initial appearance in court. However, the
Court believed that even if the defendant had been negligent in pursuing
his case and failed to submit the written statement despite the last
chance provided, he would have suffered significant harm and loss if
not granted one more opportunity.
Recognising this, the Court set aside the previous order and allowed the
defendant to file the written statement on the next scheduled hearing
date in the trial court. It was also emphasized that if the defendant
defaulted in filing the written statement even on that date, his defence
would be considered struck off.

Conclusion
A written statement is a document in a legal case where the defendant,
the person being sued, responds to the claims made by the plaintiff, the
person who filed the lawsuit. It’s like telling their side of the story in
writing. In the written statement, the defendant can admit or deny the
plaintiff’s allegations and explain their defences. They may also include
any counterclaims if they have a case against the plaintiff. It’s an
essential part of the legal process that helps both sides present their
arguments to the court, allowing the judge to make a fair decision in
the case.

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What Extent the Executing Court may Act/What are the powers of
executing court ? Explain.

The expression ‘execution' means enforcement or implementation of the

order or judgment passed by the Court. A decree means an operation or
conclusiveness of a judgment and the execution of a decree is complete
when the decree-holder gets satisfied as to its enforcement against the
judgment-debtor.

We can say that it is the medium by which a decree-holder compels the

judgment-debtor to carry out the mandate of the Decree. To take the
benefit of a decree, execution proceedings (an application under Order
21 1908(CPC)) have to be initiated before the appropriate
court/authority within 12 years from the date of decree.

It is settled principle of law that the executing court has jurisdiction

only to execute the decree in accordance with the procedure laid down
under [ORDER 21 CPC]. Therefore, executing court cannot go behind
the decree, it only can deal with the issues as provided under section
47 of CPC 1908. Section 47 of Act is reproduced here for easy reference:

Section 47 of CPC 1908:

1. All questions arising between the parties to the suit in which the
decree was passed, or their representatives, and relating to the
execution, discharge or satisfaction of the decree, shall be
determined by the Court executing the decree and not by a
separate suit.

2. Where a question arises as to whether any person is or is not the

representative of a party, such question shall, for the purposes of
this section, be determined by the Court.
[Explanation I.-For the purposes of this section, a plaintiff whose suit
has been dismissed and a defendant against whom a suit has been
dismissed are parties to the suit.

Explanation II.-(a) For the purposes of this section, a purchaser of

property at a sale in execution of a decree shall be deemed to be a party
to the suit in which the decree is passed; and
(b) all questions relating to the delivery of possession of such property
to such purchaser or his representative shall be deemed to be questions
relating to the execution, discharge or satisfaction of the decree within
the meaning of this section.

Hence, it is clear from the plain reading of section 47 that only three
kinds of matter can be decided by executing courts and these three

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subjects are:

i. Execution,
ii. Discharge,
iii. Satisfaction
The executing courts may see all the issues pertaining to the discharge,
execution and satisfaction of decree.

Parties for the purpose of section 47

The word Parties under sec. 47 has to be read widely & liberally. It
includes not only decree holder & judgement debtor rather it includes
also the other persons whose interest may be involved in execution of
decree.

Other than the parties to suit, it includes the following person as

parties:
1. It includes a plaintiff & defendant of the original suit whose suit
was dismissed/Against whose suit was dismissed.

To understand it, take an illustration. Suppose A & B sued C, A's

got the decree but B's claim got dismissed, A applied for execution
against C. Now A& C are parties but if the interest of B is affected
by execution, then B can also raise objection as he was the party
to suit even through his claim was dismissed.
2. The parties are given very broad interpretation in explanation 2 of
this section. Even a purchaser of property in execution of sale will
be considered to be a party.
For example, A purchaser X has purchased the property Y in execution
sale & judgement debtor is not ready to part with the possession, in this
case, purchaser may have serious grievances. In order to obtain the
possession, purchaser can directly raise the objection in same
proceeding as he is "deemed to be party". Then, court will make
purchaser the party and no separate suit is required.

Now it is clear, under section 47 only those questions which arise in an

execution proceeding between parties or their representatives are to be
decided. Where a stranger to the suit cannot claim under this section,
that claim cannot in law be regarded as being a question relating to the
execution, discharge or satisfaction the decree.

Types of questions which can be decide by executing court under Sec

47:
1. Decree is executable or not
2. Whether property is liable to be sold in execution?
3. Whether execution proceeding can be postponed?

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4. Whether an application made regarding set aside the sale under

execution is maintainable or not?
5. Setting aside of sale under Order 21 rule 89 and 90 of CPC 1908.

What Executing Court cannot decide:

1. The executing court does not have power to set aside the decree
which is void and null due lack of inherent jurisdiction of court or
any other reasons of like nature. Only a competent court can set
aside such decree through a separate suit as such decree does not
act as res judicata for subsequent suits on same cause of action.

2. Any decree that is passed on basis of fraud or collusion cannot be

tinkered with by executing court. Such decrees only can be set
aside by a subsequent suit in court having jurisdiction.

In S.Bhaskaran vs Sebastian (2019SCC, 161) , Apex Court held that

the executing court cannot travel beyond the scope of decree or order.
Any order passed by the executing court by travelling beyond the decree
or order is without jurisdiction.

Similarly, in the case of Kiran Singh vs Chaman Paswan, (1954)

Supreme Court observed that a court executing a decree cannot go
behind the decree and must execute it as it stands. It has no power to
entertain any objection as to the validity, legality or correctness of the
decree. In case of inherent lack of jurisdiction, the decree of the court
is a nullity and its invalidity can be enforced, whether in execution or
collateral proceedings.

So, it is clear by the above precedents, the Execution Court, thus can
hear and decide questions pertaining to execution of decree and cannot
go behind the decree to decide upon merits of case. It cannot decide any
error/defect in trial or any relief upon the decree court has refused the
grant the decree.

The objective of section 47 is to prohibit the multiplication of

proceedings when the issues can be decided by the executing court
itself. The main principle of this section is that all questions relating to
the execution, discharge or satisfaction of the decree shall be
determined in the execution proceedings and not by a separate suit.
Section 47 provides cheap and expeditious procedure for trial of such
questions.
It is pertinent to know that against any order under section 47, appeal
will not lie but revision is allowed before High court under section 115
of CPC 1908.

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Impact of Decree Passed by Court having no Jurisdiction:

There are three kind of jurisdiction namely pecuniary, territorial and
subject matter (Inherent) jurisdiction. The pecuniary jurisdiction is
dealt in section 6 of CPC and territorial jurisdiction is described under
section 15-20 of the Act. Both these jurisdictions are not inherent in
nature and does not effect the decree passed in violation of these
jurisdiction unless there is a gross injustice to the parties. Such decrees
may be called irregular but not invalid or void. The objection regarding
the pecuniary and territorial jurisdiction should be raise at the outset
as provided in section 21 of CPC.

Void decree passed by a court having lack of subject matter or inherent

jurisdiction (section 9) is void in nature and objection related to the
inherent Jurisdiction can be raised at any stage of suit including at time
of execution proceeding.

The reason is that, lack of inherent jurisdiction goes in the root of the
matter, such decree is void the decree. Moreover, the question of validity
of decree is not one which can be agitated in execution because it is not
related to discharge/satisfaction of decree, it is only where a decree is
passed by a court which lacks the inherent jurisdiction to pass the
decree so that objection to the Validity of decree may be raised in
execution proceeding if such an objection appears on the face of record.

Remedy against Void Decrees:

Void decree can be set aside without any examination of failure of
justice by the trial court/appellate court if once the lack of jurisdiction
is proved, However, executing court has no power to set-aside the
decree, rather the court can at the most refuse to execute it.

The objection regarding void decree can be raised in both collateral &
incidental Proceedings.
1. Collateral Proceeding
Void decree will be set aside, parties can bring the fresh suit and res
judicata will not apply.
2. Incidental proceeding [after trial]

The Appellate & revisional court can set-aside the decree passed by any
court without subject matter jurisdiction. But the executing court
cannot set-aside such decree but the court can refuse to execute the
decree.

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 What is meant by issues?

 How issues are framed ?
 State the powers of the court to amend or strike out issues.

After the completion of all pleadings, the next stage in a civil trial is for
the court to frame issues of law, and of fact. Framing of issues is a key
stage in a civil suit, since the issues framed in the suit determine what
evidence will be produced by either party to disburse their burden in
respect of such issues, and the court’s final decision on each such issue.

In this column, we shall discuss how issues are framed in a civil suit by
the court, and what factors shape the court’s decision of determining
which issues are relevant for the dispensation of justice.

We will discuss the differences between issues of fact and issues of law,
the consequences of the failure to frame a particular issue by the court,
and the power of a court to decide on questions falling outside the issues
framed.

We will also delve into the changes brought by the Commercial Courts
Act, and the introduction of the case management conference in
commercial cases, which sets a timeline for the parties to complete the
trial within.

Framing of issues
 Issues under the CPC are governed under Order XIV.
 An issue is a material proposition of fact or law which one party
holds to be true, while the other denies.
 The role of the civil court, in such instances, is to frame a specific
issue on such a proposition – in order to enable the parties to
prove their case by leading evidence on such an issue.
 Rule 1(4) of Order XIV divides issues into two – issues of fact and
issues of law.
 Both issues of fact and issues of law are ascertained by the court
based on the pleadings of both parties, and the submissions made
by their lawyers in support of each party’s case.
 The court will also look at the documents produced by both
parties, and any answers in response to interrogatories in the suit,
before framing of issues under Rule 3 of Order XIV.
 Issues of fact are based on contested factual averments in a civil
case which will determine important interests such as right of
repayment of monies, assess the correct title over property, the
share in a partition dispute between family members etc.

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 What constitutes a fact, a relevant fact, and a fact in issue will be

assessed in accordance with the provisions of the Indian Evidence
Act 1872, specifically section 3.
 Issues of law are important questions of law which will either
complement the court’s adjudication of the issues of fact (called
mixed questions of fact and law), or be a deciding factor in the
court’s legal determination, especially in cases where there are
preliminary objections raised.
 While questions of res judicata, limitation etc are examples where
the court will assess the issue as one of both fact and law,
questions on the jurisdiction of court, or a bar on the adjudication
of the suit due to a prevailing law in force, can be decided as
preliminary issues under Order XIV Rule 2 of the CPC.

In order to frame issues, if a court is of the opinion that it will need to

examine a person or inspect further documents, it is empowered to do
so under Order XIV Rule 4 of the CPC.

Even after the framing of issues, Order XIV Rule 5 of the CPC allows the
court, either by itself or through an application by either party, to
amend, add or strike off any of the issues on record, if it believes that it
is necessary to determine the controversy between the parties.

Order XIV Rule 5 of the CPC illustrates the underlying principle that the
civil court is ultimately entrusted with the duty to do substantive
justice. And in doing so, it should have the power to frame additional
issues, or remove irrelevant/repetitive issues.

Failure of a civil court to frame an issue

If the court does not frame a specific issue on a contested point of fact
or law, that does not affect the overall validity of the trial, or vitiate the
trial. In Nagubai Ammal v B. Shama Rao, the Supreme Court held
that the framing of a wrong, improper or defective issue does not vitiate
the trial, as long as the parties entered the trial knowing the other side’s
case in full, and led evidence in respect of the question which the court
decided upon.

Power of the court to decide on questions outside the issues framed

A court should not decide upon a question of law which was not pleaded
by either party, and in respect of which no specific issue was framed
after the completion of pleadings as well. A party approaching a civil
court claims specific reliefs and lays down its position in its pleadings.
The court’s framing of issues on the competing factual averments
contextualises the real controversy between the parties. Therefore, if an
issue is not framed by the court, since no pleading or relief was claimed
towards such an issue by either party, the court cannot determine such

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a question and pass a decree based on the same, since the parties have
had no chance to address such an issue in the first place.

The Supreme Court in Bhagwati Prasad v. Chandramaul and Ram

Sarup Gupta (through his LRs) v. Bishun Narain Inter College has
emphasised that in the absence of pleadings, if it appears that the suit
was decreed on a specific issue which was not framed or in the
knowledge of the counterparty – thereby preventing the party from
leading any evidence on such an issue - the decree passed by the court
would be unsustainable.

This was reiterated in Bacchaj Nahar v. Nilima Mandal and another,

where the Supreme Court held that in a suit which concerned issues of
the title over property, the determination of an unrelated issue of
easementary right over the property (which was neither pleaded by
either party, nor an issue framed) would render the decree
unsustainable in law.

Arrest :

The Code of Civil Procedure lays down various modes of executing a

decree. One of such modes is arrest and detention of the judgment-
debtor in a civil prison. The decree-holder has an option to choose a
mode for executing his decree and normally, a court of law in the
absence of any special circumstances, cannot compel him to invoke a
particular mode of execution.

Sections 51 to 59 and Rules 30 to 41 of Order XXI deal with arrest and

detention of the judgment debtor in civil prison. The substantive
provisions deal with the rights and liabilities of the decree-holder and
judgment debtor and procedural provisions lay down the conditions
thereof.

The provisions are mandatory in nature and must be strictly complied

with. They are not punitive in character. The object of detention of
judgment-debtor in a civil prison is twofold. On one hand, it enables the
decree-holder to realise the fruits of the decree passed in his favour;
while on the other hand, it protects the judgment-debtor who is not in
a position to pay the dues for reasons beyond his control or is unable
to pay.

Therefore, mere failure to pay the amount does not justify arrest and
detention of the judgment-debtor inasmuch as he cannot be held to
have neglected to pay the amount to the decree-holder.

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When arrest and detention may be ordered

Where the decree is for the payment of money, it can be executed by
arrest and detention of the judgment debtor.
Likewise, in case of a decree for specific performance of contract or for
injunction, a judgment debtor can be arrested and detained.
Again, where a decree is against a corporation, it can be executed with
the leave of the court by detention in civil prison of its directors or other
officers.

Who cannot be arrested

As per the Civil Procedure Code, the following classes of persons cannot
be arrested or detained in a civil prison:

1. Judicial officers, while going to, presiding in or returning

from their courts;
2. A woman;
3. The parties, their pleaders, mukhtars, revenue agents and
recognised agents and their witnesses acting in
disobedience to a summons, while going to, or attending or
returning from the court;
4. Members of legislative bodies;
5. Any person or class of persons, whose arrest, according to
the State Government, might be attended with danger or
inconvenience to the public;
6. A judgment-debtor, where the decretal amount does not
exceed rupees two thousand.

Power and Duty of the Court

The provisions relating to arrest and detention of the judgment-debtor
protect and safeguard the interests of the decree-holder. If the
judgment-debtor has means to pay and still he refuses or neglects to
honour his obligations, he can be sent to civil prison. Mere omission to
pay, however, cannot result in arrest or detention of the judgment-
debtor. Before ordering detention, the court must be satisfied that there
was an element of bad faith, “not mere omission to pay but an attitude
of refusal on demand verging on demand verging on disowning of the
obligation under the decree”.

The above principles have been succinctly and appropriately explained

by Krishna Iyer, J. in Jolly George Verghese v. Bank of Cochin, in the
following words:
“The simple default to discharge is not enough. There must be some
element of bad faith beyond mere indifference to pay, some deliberate
or recusant disposition in the past or alternatively, current means to
pay the decree or a substantial part of it. The provision emphasises the

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need to establish not mere omission to pay but an attitude of refusal on

demand verging on dishonest disowning of the obligation under the
decree.

Here, a consideration of the debtor’s other pressing needs and

straitened circumstances will play prominently. We would have, by this
construction, sauced law with justice, harmonised Section 51 with the
covenant and the Constitution.

It was ultimately propounded: “It is too obvious to need elaboration that

to cast a person in prison because of his poverty and consequent
inability to meet his contractual liability is appalling.

To be poor, in this land of daridra narayana, is no crime and to

recover debts by the procedure of putting one in prison is too
flagrantly violative of Article 21 unless there is proof of the
minimal fairness of his wilful failure to pay in spite of his sufficient
means and absence of more terribly pressing claims on his means such
as medical bills to treat cancer or other grave illness.

Unreasonableness and unfairness in such a procedure is inferable from

Article 11 of the covenant. But this is precisely the interpretation we
have put on the proviso to 51 of CPC and the lethal blow of Article 21
cannot strike down the provision, as now interpreted”.

Recording of Reasons
The Court is required to record reasons for its satisfaction for detention
of the judgment-debtor. Recording of reasons is mandatory. Omission
to record reasons by the court for its satisfaction amounts to ignoring a
material and mandatory requirement of law.
Such reasons should be recorded every time and in every proceeding in
which the judgment-debtor is ordered to be detained.

Substantive Provisions: - Section 55

Section 55 reads as follows:

Arrest and detention. -
(1) A judgment debtor may be arrested in execution of a decree at any
hour and on any day, and shall, as soon as practicable, be brought before
the Court, and his detention may be in the civil prison of the district in
which the Court ordering the detention is situate, or where such civil
prison does not afford suitable accommodation, in any other place which
the State Government may appoint for the detention of persons ordered
by the Courts of such district to be detained:

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Provided, firstly, that, for the purpose of making an arrest this section, no
dwelling-house shall be entered after sunset and before sunrise:
Provided, secondly, that no outer door of a dwelling house shall be broken
open unless such dwelling-house is in the occupancy of the judgment-
debtor and he refuses or in any way prevents access thereto, but when
the officer authorized to make the arrest has duly gained access to any
dwelling-house; he may break open the door of any room in which he has
reason to believe the judgment-debtor is to be found:

Provided, thirdly that, if the room is in the occupancy of a woman who is

not the judgment-debtor and who according to the customs of the country
does not appear in public, the officer authorized to make arrest shall give
notice to her that she is at liberty to withdraw and after allowing a
reasonable time for her to withdraw and giving her reasonable facility for
withdrawing, may enter the room for the purpose of making arrest:

Provided, fourthly, that, where the decree in execution of which a

judgment debtor is arrested, is a decree for the payment of money and
the judgment debtor pays the amount of the decree and the costs of the
arrest to the officer arresting him, such officer shall at once release him.

(2) The State Government may, by notification in the official gazette,

declare that any person or class of persons whose arrest might be
attended with danger or inconvenience to the public shall not be liable to
arrest in execution of a decree otherwise than in accordance with such
procedure as may be prescribed by the State Government in this behalf.
(3) Where a judgment debtor is arrested in execution of a decree for the
payment of money and brought before the Court, the Court shall inform
him that he may apply to be declare an insolvent and that he may be
discharged if he has not committed any act of bad faith regarding the
subject of the application and if he complies with the provisions of the law
of insolvency for the time being in force.
(4) Where a judgment-debtor expresses his intention to apply to be
declared an insolvent and furnishes security, to the satisfaction of the
Court, that he will within one month so apply and that he will appear,
when called upon, in any proceeding upon the application or upon the
decree in execution of which he was arrested, the Court may release him
from arrest and if he fails so to apply and to appear, the Court may either
direct the security to be realised or commit him to the civil prison in the
execution of the decree.

Object of the section

The object of this section is to prevent the vexatious forms of resistance
to execution proceedings which constantly obstruct decree-holders in

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the execution of their decrees. But before a judgment-debtor can be

arrested this section governs his case and lays down certain limitations.

Applicability of this section

It has been provided by this section that a judgment-debtor may be
arrested in execution of a decree at any hour of the day and on any day
of the month and shall as soon as practicable be brought before the
Court subject to the following limitations:

1. That no dwelling or house shall be entered after sunset and

before sunrise.
2. That no outer door of a dwelling house shall be broken open
unless such dwelling house is in the occupancy of the
judgment-debtor and he refuses or in any way prevent
access thereto, but when the officer authorized to make the
arrest has duly gained access to any dwelling-house, he may
break open the door of any room in which he has reason to
believe judgment-debtor is to be found.
3. That if the room is in the actual occupation of a woman who
is not the judgment-debtor and who according to customs
does not appear in public, the officer authorized to make
arrest shall have to give a notice to her that she is at liberty
to withdraw and allow her reasonable opportunity to
withdraw therefrom before entering into the room for the
purpose of making arrest.
4. That if the decree is for the payment of money, no arrest
shall be made if the judgment-debtor pays the full decrial
amount and the costs of the arrest to the officer arresting
him.

Judgment-debtor
A woman is exempt from arrest under this section. A woman may,
however, be detained in the civil prison in execution of a decree for
restitution of conjugal rights.

May be arrested
The Civil Procedure Code does not prevent a judgment-debtor from
being arrested a second time on account of the same decree where he
has been released on the application of the judgment creditor.

A judgment-creditor has the option of enforcing his decree against the

person or the property or both of the judgment-debtor.

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It is otherwise, however, where the decree is against the property only.

A judgment-debtor cannot be arrested and imprisoned separately for
the default in the payment of each instalment.

A person is not protected from arrest in the execution of decree, merely

because his property is in the hands of the receiver in insolvency.

Exemption from arrest of certain persons

Clause (2) of this section is intended to cover the cases of certain
persons or classes of persons whose summary arrest might, as in the
case of Railway Servants, be attended with danger or inconvenience to
the public in general. However, where a suit is brought against such a
person, the fact that he could not be arrested in execution is not a
ground for not passing a decree against him.

Court’s duty after the arrest of the judgment-debtor

A Court executing a decree for money is bound to inform the judgment-

debtor when he is brought under arrest before it that he may apply to
be declared an insolvent and that he might be discharged on complying
with the requirement of the law, but not on re-arrest after failing in
insolvency proceedings.

This clause does not entitle the debtor to be declared an insolvent where
his application does not comply with the provisions of insolvency law. It
is open beyond the time given to apply at subsequent due, to be declared
an insolvent on the strength of the permission previously given.

But if the application of a judgment-debtor to be declared an insolvent

has been dismissed and he is re-arrested in execution of decree against
him he is not entitled to a release on expressing his willingness to apply
again to be declared an insolvent, so long as the bar of the previous
dismissal is not removed. Prior to the adjudication, the rights are
unaffected.

A person arrested and brought up before the Court might be discharged

on giving security and stating his intention to apply to be declared an
insolvent, but if he has been sent to prison, he can only be released
under Section 58, he cannot obtain his release from prison upon the
mere admission of his subsequent petition of Insolvency under section
21 of the Provisional Insolvency Act.

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Arrest and Insolvency

If a judgment-debtor against whom an order for arrest has been made,
is adjudicated insolvent without a protection order, the adjudication
does not prevent his arrest and the court of execution must require the
judgment-debtor to give security under the latter part of sub-section (4)
that he will appear when called upon in any proceeding in insolvency or
upon the decree in execution of which he was arrested.

Expresses his intention to apply to be Declared Insolvent

This expression of intention is equivalent to a statement made to the
judgment-creditor by the judgment-debtor of an intention to suspend
the payment of his debts. It is, therefore, an act of insolvency as defined
in section 9 of the Presidency-Towns Insolvency Act. If the surety is
furnished and accepted, the order cannot be reviewed and a direction is
given for the execution of a fresh surety bond.

Time limit
Section 55(4) provides for a time limit of one month within which the
judgment-debtor must apply to be declared insolvent. The court has no
power to extend the period of one month for applying for adjudication.
Section 148 does not apply to such a case.
The word ‘month’ is introduced into this section by way of defining the
obligation of the surety. The intention expressed is to be declared
insolvent and not to be declared insolvent at the end of a month
provided nothing does turn up.
Where a judgment-debtor fails to apply for insolvency within a period of
one month of his release, the option to commit him to prison or to realize
the security lies with the Court and not with the decree-holder.

Discharge of Surety
Sub-section (4) makes it clear that where a security bond is passed in
the terms of that sub-section, that is, where a surety undertakes:

1. That the judgment-debtor will within one month apply to be

declared an insolvent; and
2. Will appear, when called upon, in any proceeding upon the
application or upon the decree in execution of which he was
arrested, the security will be realized when there is failure to
comply with either condition. The surety, however, is not
released by the mere filing by the judgment-debtor of the
petition in insolvency; the security continues until a final
order is made on the petition.
3. A bona fide petition is sufficient compliance with the
condition of the bond. When a bona fide petition was
presented within one month but was rejected as not being

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in proper form and a fresh petition was presented later and

the debtor was adjudged insolvent, the surety was
discharged.
4. A security-bond furnished for the appearance of the
judgment-debtor is in the nature of continuing guarantee
and when the surety produces the judgment-debtor before
the Court and requests to be absolved from further liability
under the bond, the Court should not refuse to grant the
prayer, but he cannot be discharged unless he has fully
carried out his undertaking.

A surety under this section is discharged by the death of the judgment-

debtor before breach of either of the two conditions mentioned above.
But the death of the judgment-debtor after the first condition has failed,
namely, the undertaking to apply to be declared an insolvent within one
month, cannot affect the surety’s liability with regard to that condition.

A surety is also discharged if the execution proceedings are struck off

or dismissed for default of appearance even though they are
subsequently restored, but not if liability had already accrued under the
bond by a breach of either of the two conditions before the proceedings
were struck off.

If the court makes an erroneous order discharging a surety, the decree-

holder may apply for revision of the order, but cannot treat it as a
nullity.

Sub-section (4) provides that if the judgment-debtor fails to apply or to

re-appear, the Court may either direct the security to be realized or
commit the judgment-debtor to prison. This is an alternative and not a
concurrent remedy. It does not mean that the Court can proceed both
against the surety and the judgment-debtor.

If the surety is proceeded against and the amount is recovered from

him, the judgment-debtor is committed to jail, in execution. If the
judgment-debtor is committed to jail, the position is just the same as if
the surety had never come forward.

But the mere fact that the judgment-debtor is re-arrested or that a

warrant is issued against him is not sufficient of itself to discharge the
surety.

Damages for arrest

In a suit for damages on account of arrest the plaintiff must show: (i)
that the original action, out of which the alleged injury arose, was

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decided in his favour; (ii) that the arrest was procured maliciously
without the reasonable and probable causes and (iii) that he has
suffered “some collateral wrong”.

Appeal or revision
An order made under Section 55(4) is appealable.
An order refusing executing of decree simultaneously against the person
and property is appealable as a decree; so is an order under Section
55(4) rejecting an application for the forfeiture of a security bond; so is
an order passed by the Court executing a decree for the imprisonment
of the judgment-debtor.

But an order refusing to discharge a surety from liability under a bond

in terms of this section is not appealable, nor is an order refusing an
application for recovery of the amount decreed from a surety.
When the surety makes an application to have his surety bond cancelled
the order is passed on such application. It is not appealable his remedy
is by the way of revision.

Section 56
Section 56 provides that:
Prohibition of arrest or detention of women in execution of decree
for money- Notwithstanding anything in this Part, the Court shall not
order the arrest or detention in the civil prison of a woman in execution of
a decree for the payment of money.

Scope; This section exempts all women from arrest in execution of a

decree for the payment of money. In Moonshee Buzloor
Ruheem v. Shumsoonissa[l], it was held that a woman may however be
detained in the civil prison in execution of a decree for restitution of
conjugal rights.

Since the amendment in 1923 the decree for restitution of conjugal

rights is enforceable only by the attachment of the property of the
defendant.

Security for costs: A woman cannot be arrested in execution of a

decree for the payment of money; at the same time, if the plaintiff is a
woman and her suit is for the payment of money, she may be required
to give security for the defendant’s costs.

Section 57
The Section 57 says: Subsistence allowance- The State Government
may fix scales, graduated according to rank, race and nationality, of
monthly allowances payable for the subsistence of judgment debtors.

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No arrest without subsistence allowance: A judgment-debtor shall

not be arrested in execution of a decree unless and until the decree-
holder deposits into the Court, an amount fixed by the judge, sufficient
for the sake of subsistence of judgment-debtor, from the time of his
arrest until he can be brought before the Court.

And on the omission by the decree-holder to pay the subsistence

allowance may result in the release of the judgment debtor.

Section 58
Section 58 reads as under:

Detention and release- (1) Every person detained in the civil prison in
execution of a decree shall be so detained-

1. Where the decree is for the payment of a sum of money

exceeding five thousand rupees, for a period not exceeding
three months, and
2. where the decree is for the payment of a sum of money
exceeding two thousand rupees, but not exceeding five
thousand rupees, for a period not exceeding six weeks:
Provided that he shall be released from such detention before the
expiration of the said period of detention-
1. on the decree against him being otherwise fully satisfied, or
2. on the amount mentioned in the warrant for his detention
being paid to the officer-in-charge of the civil prison, or
3. on the request of the person on whose application he has
been so detained, or
4. on the omission by the person, on whose application he has
been so detained, to pay subsistence allowance:
Provided also, that he shall not be released from such detention under
Clause (ii) or Clause (iii), without the order of the Court.
(1-A) For the removal of doubts, it is hereby declared that no order for
detention of the judgment-debtor in civil prison in execution of a decree
for the payment of money shall be made, where the total amount of the
decree does not exceed two thousand rupees.
(2) A judgment-debtor released from detention under this section shall not
merely by reason of his release be discharged from his debt, but he shall
not be liable to be re-arrested under the decree in execution of which he
was detained in the civil prison.

Scope of the section

This section prescribes a maximum time limit for the judgment-debtor’s
detention, but provides that the debt is not discharged thereby; the
creditor has got a right to proceed against the debtor’s property. It

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applies to all decrees and not to money decree alone. But period of
detention prescribed in section 58 applies to money decree only.

Period of detention
Before the section was amended the Court had no authority to fix any
term for the imprisonment of a judgment-debtor under this rule. The
period of prior imprisonment that had elapsed after the passing of the
decree was counted and that period plus the new period amounted
altogether to a total period of imprisonment, then this rule applied.

A judgment-debtor, who has been imprisoned in execution of a decree,

if the several periods of his imprisonment be added together, for more
than the maximum period for which he can be legally kept in prison, is
entitled to his release. A judgment debtor cannot be arrested and
imprisoned separately for the default in the payment of each instalment.

According to Patna High Court, the new sub-section (I-A) applies even
to pending cases, that is, to applications filed in force but which were
pending on 10th September, 1976 when the re-amended section came
into force. Where, however, the decrial amount is more than Rs. 500,
but does not exceed Rs. 1000, the maximum period of detention is six
weeks. Where the amount of the decree exceeds Rs. 1000, the period of
detention cannot exceed three months.

Discharge of the debtor on the request of the decree-holder

Where the decree-holder applied for execution of his decree after the
release of the judgment-debtor on the request of the decree holder, he
was met by the objection that an adjustment had taken place. The
matter was the subject of inquiry because it was a proceeding taken out
of Court. The High Court, however, held that the decree-holder was
bound to state why he applied to have debtor discharged and that if no
adequate reasons were shown must be taken to have had his decree
satisfied.

What is Adjournment in CPC?

Adjournment in the Code of Civil Procedure is the postponement of a
court hearing or trial to a later date. It is a procedural tool that allows
the court to grant time to the parties for various reasons, such as the
need for additional preparation, the absence of a key witness or
unforeseen circumstances.
The provisions for adjournment are detailed in Order XVII of the CPC,
which outlines the conditions under which adjournments can be
granted, the procedure to be followed and the implications of such
adjournments. The CPC also imposes restrictions on the number of

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adjournments to prevent abuse and ensure the efficient conduct of legal

proceedings.

Legal Provisions of Adjournment in CPC

Adjournment in the context of the CPC refers to the postponement of a
hearing or trial to a later date. The provisions related to adjournment
are primarily contained in Order XVII of the CPC.
The provision on adjournment has been extracted for ease of reference:
The order outlines the circumstances under which a court may grant
an adjournment, the procedure to be followed and the consequences of
adjournment.

1. Granting of Adjournment in CPC

According to Order XVII, Rule 1, the court has the discretion to grant
time to the parties or any of them at any stage of the suit, provided
sufficient cause is shown. The reasons for the adjournment must be
recorded in writing.
However, the rule also imposes a restriction that no party shall be
granted more than three adjournments during the hearing of the suit.
This limitation is aimed at preventing the abuse of the adjournment
process and ensuring the timely resolution of disputes.

2. Costs of Adjournment
The court is required to fix a day for the further hearing of the suit and
may order the party seeking the adjournment to bear the costs
occasioned by the adjournment. In some cases, the court may impose
higher costs as deemed fit. This provision serves as a deterrent against
frivolous requests for adjournment and encourages parties to proceed
with the case without unnecessary delays.

3. Conditions for Adjournment

Order XVII, Rule 1 also lays down certain conditions under which
adjournments are to be granted:
(a) Once the hearing has commenced, it should continue from day to
day until all the witnesses in attendance have been examined unless
there are exceptional reasons for an adjournment.
(b) Adjournments should not be granted at the request of a party unless
the circumstances are beyond their control.
(c) The engagement of a party’s pleader in another court is not a valid
ground for adjournment.
(d) If a pleader’s illness or inability to conduct the case is cited as a
reason for adjournment, the court should ensure that the party couldn’t
have engaged another pleader in time.

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(e) If a witness is present but a party or their pleader is not ready to

examine or cross-examine them, the court may record the witness’s
statement and make appropriate orders.

4. Procedure if Parties Fail to Appear

Order XVII, Rule 2 deals with the situation where parties or any of them
fail to appear on the adjourned date. The court may proceed to dispose
of the suit in one of the modes directed by Order IX or make any other
suitable order. If substantial evidence has already been recorded and a
party fails to appear, the court may proceed as if the party were present.

5. Court’s Discretion to Proceed

According to Order XVII, Rule 3, if a party fails to produce evidence,
ensure the attendance of witnesses or perform any necessary act for the
suit’s progress, the court may decide the suit forthwith if the parties are
present. If the parties or any of them are absent, the court may proceed
under Rule 2.
Implications of Adjournment in Legal Proceedings
The provisions related to adjournment in the CPC have several
implications for the legal proceedings:
 Ensuring Justice: Adjournments allow parties to prepare their
case adequately and present their evidence effectively, thus
ensuring that justice is served.
 Preventing Abuse: The restrictions on the number of
adjournments and the imposition of costs act as deterrents
against the abuse of the adjournment process, which can lead to
unnecessary delays and increased costs.
 Flexibility: The court’s discretion to grant adjournments provides
flexibility in dealing with unforeseen circumstances that may arise
during the course of a trial.
 Efficiency: By limiting the number of adjournments and
encouraging continuous hearings, the CPC aims to enhance the
efficiency of the legal proceedings and reduce the backlog of cases.

Conclusion
Adjournments in civil proceedings are governed by the Code of Civil
Procedure (CPC), 1908, specifically under Order XVII. This order
outlines the conditions, procedures and limitations related to
adjournments in civil court cases in India. The provisions related to
adjournment are designed to prevent its abuse while allowing for
flexibility in handling unforeseen circumstances.

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When can the court appoint a receiver?

State the powers and duties of a receiver.

The Definition of Receiver under the Civil Procedure Code

A receiver is essentially an officer of the court, appointed to take custody
of a property involved in a legal dispute. Their primary responsibility is
to maintain the property, collect any income it generates and ensure its
value is preserved until the court reaches a final decision. For instance,
in a property dispute between individuals A and B, if the court deems it
necessary, it may appoint a receiver to manage the property, thereby
preventing either party from misusing or damaging it.

Purpose of Appointing a Receiver

The primary purpose of appointing a receiver is to prevent any party in
possession of the disputed property from causing irreparable harm or
exhausting its value. When a property is the subject of litigation, it is
important to maintain its status quo to ensure that the final judgment
of the court is meaningful and enforceable. A receiver provides interim
protection, ensuring that the property remains intact and its value is
not diminished during the legal proceedings.

The Role and Responsibilities of a Receiver under the Civil

Procedure Code
A receiver, as an officer of the court, acts as the court’s extended arm
and hand. Their responsibilities include:
1. Management of Property: The receiver takes custody of the
disputed property or funds, managing them until a final decree is
issued or the parties reach a settlement.
2. Maintenance and Income Collection: They collect any income
generated by the property, such as rent and use it for the
property’s upkeep. After deducting maintenance expenses, the
remaining income is submitted to the court.
3. Custodia Legis: The property or funds under the receiver’s
control are considered to be in the custody of the law, ensuring
their protection and proper management.

Criteria for Appointing a Receiver By the Court

The appointment of a receiver is a discretionary power vested in the
court. However, this discretion is not absolute and must be exercised
judiciously. The court considers several principles before appointing a
receiver:
1. Protective Relief: The appointment is intended as a protective
measure to safeguard the disputed property.

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2. Prima Facie Case: The plaintiff must demonstrate a strong prima

facie case against the defendant, indicating a high likelihood of
success in the suit.
3. Irreparable Harm: There must be a significant risk of harm to the
property if a receiver is not appointed.
4. Equity and Conduct: The party requesting the appointment must
come to the court with clean hands, demonstrating fair conduct.

The Appointment of Receiver under the Civil Procedure Code

The power to appoint a receiver lies with the court before which the
proceedings are pending. This can be either the trial court or the
appellate court, depending on the stage of the case. The court exercises
its discretion based on the principles of justice and convenience,
ensuring that the appointment is not arbitrary or unregulated.

Who Can Be Appointed as a Receiver?

A receiver must be an individual who is independent, impartial and
entirely disinterested in the property involved in the dispute. The
fundamental criteria for appointment are based on the person’s
neutrality and lack of any stake in the disputed property. This ensures
that the receiver’s actions are unbiased and solely aimed at preserving
the property.
Typically, the court avoids appointing parties directly involved in the
suit as receivers. However, in extraordinary circumstances, a party to
the suit may be appointed as a receiver if deemed appropriate by the
court.

When Can a Receiver Be Appointed?

The court has the discretion to appoint a receiver at any stage if it
believes that neither party should hold the disputed property. This can
occur before or after a decree has been issued. The court has the
authority to remove any individual from possession or custody of the
property and place it under the management of the appointed receiver.
Under Section 94(d) of the Civil Procedure Code, a receiver can be
appointed to prevent the ends of justice from being defeated.
Additionally, Section 51(d) grants the court power to appoint a receiver
for the execution of a decree. Special acts, such as Section 84 of
the Companies Act, 2013 and Section 69A of the Transfer of Property
Act, 1882, also provide for the appointment of receivers by the court.
The Process of Appointment of a Receiver under the Civil
Procedure Code
The process for appointing a receiver is outlined in the court rules,
which vary by jurisdiction. The high courts possess the authority to
formulate rules for overseeing and controlling subordinate courts. For

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instance, Chapter XIX of the Delhi High Court (Original Side) Rules,
1967, delineates the following procedure:
1. Application: The application for appointment must be made in
writing and supported by an affidavit.
2. Security: If the receiver is not the official receiver, they must
provide security.
3. Personal Bonds: The receiver must furnish personal bonds with
the required surety, which must satisfy the registrar. The personal
bond should be double the annual rental value or the total value
of the property to be administered.
4. Report Submission: Within a week of the appointment, the
receiver must submit a report detailing the property, including an
inventory or books of accounts.
5. Investment Directions: The registrar will provide directions on
where to invest the money received from the property, usually in
scheduled banks or government bonds.

Powers of the Receiver under the Civil Procedure Code

Order 40, Rule 1(d) of the CPC outlines the powers of a receiver,
including:
1. Collection of Rents and Profits: The receiver is authorised to
collect rents and profits arising from the property.
2. Application and Disposal of Rents and Profits: They can apply
and dispose of these rents and profits.
3. Execution of Documents: The receiver has the power to execute
documents as if they were the owner.
4. Legal Actions: They can institute and defend suits related to the
property.
5. Additional Powers: The court may grant additional powers as
deemed necessary.
The receiver enjoys indirect powers as an extension of the court. For
example, interference with the receiver’s possession can be treated as
contempt of court. Additionally, property in the hands of the receiver
cannot be attached without the court’s permission.

Duties of the Receiver under the Civil Procedure Code

Order 40, Rule 3 of the CPC stipulates the duties of a receiver, which
include:
1. Furnishing Security: The receiver must provide security to
account for the income received from the property.
2. Submitting Accounts: They must submit half-yearly accounts as
directed by the court, detailing income received and expenses
incurred for the property’s maintenance.
3. Paying Amounts Due: The receiver is responsible for paying any
amounts due to the court.

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4. Preventing Value Reduction: The receiver must prevent any

reduction in the property’s value due to willful negligence.
5. Personal Discharge of Duties: The receiver must personally
discharge their duties without delegating or assigning their
responsibilities.

Failure to fulfill these duties can result in the court taking action
against the receiver, holding them personally liable for any losses
incurred due to negligence or failure to protect and preserve the
property.

Liabilities of the Receiver under the Civil Procedure Code

Order 40, Rule 4 of the CPC outlines the liabilities of a receiver, which
arise if they fail to:
1. Submit Reports: Failure to submit the specified reports.
2. Pay Due Amounts: Failure to pay amounts due as directed by the
court.
3. Prevent Property Loss: Causing loss to the property due to gross
negligence.
4. Perform Directed Duties: Failing to perform any other court-
directed duties.
In such cases, the court may order the attachment of the receiver’s
property to recover losses caused by willful default or negligence. The
proceeds from the sale of the receiver’s property will be used to cover
the losses, with any remaining balance paid to the receiver.

Remuneration of a Receiver under the Civil Procedure Code

Receivers are entitled to remuneration for their services, as fixed by the
court. This compensation covers the receiver’s efforts and any expenses
incurred in maintaining the property. Order 40, Rule 2 allows the court
to fix the remuneration for the receiver’s services through general or
specific orders.
For example, the Delhi High Court (Original Side) Rules, 1967, provide
a detailed schedule for receiver remuneration:
1. First Rs. 10,000: 5%
2. Above Rs. 10,000 up to Rs. 20,000: 3%
3. Above Rs. 20,000 up to Rs. 50,000: 2%
4. Above Rs. 50,000 up to Rs. 1,00,000: 1%
5. Above Rs. 1,00,000: 0.5%
Additionally, for taking custody of money or government securities,
receivers are entitled to 1% of the estimated value. If no specific
remuneration is specified, the receiver can apply to the court for
reasonable compensation.

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Appointment of a Collector as Receiver under the Civil Procedure

Code
According to Order 40, Rule 5, a collector can be appointed as a receiver
if the property generates revenue for the government. The court may
appoint a collector as a receiver, with their consent, if it believes that
the collector’s management will promote the interests of those
concerned.

Conclusion
The role of a receiver under the Civil Procedure Code is important in
ensuring the protection and preservation of disputed properties during
litigation. By appointing a receiver, the court aims to maintain the
status quo and prevent any party from causing irreparable harm to the
property.
This mechanism serves as a vital interim relief, ensuring that the final
decree of the court is enforceable and meaningful. The principles and
processes governing the appointment of a receiver reflect the court’s
commitment to equity, justice and the protection of legal rights.

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What is Interpleader Suit?

An interpleader suit is a legal action initiated by a person or entity

holding property, funds, or assets that are claimed by two or more
conflicting parties. An interpleader suit is filed when the party holding
the property has no interest in it, except for potential charges or costs
and seeks to avoid liability or multiple lawsuits.

The primary dispute in an interpleader suit typically arises among the

defendants who interplead against each other, rather than involving the
plaintiff and the defendant of a case. An interpleader suit is
distinguished by the fact that the plaintiff is not directly involved in the
subject matter under contention. The fundamental and most significant
objective of an interpleader suit is to resolve conflicting claims among
rival defendants. This situation arises when there is a disputed debt,
capital, or other property solely between the defendants. Essentially, an
interpleader suit is initiated to adjudicate a matter concerning a third
party.

In an interpleader suit, it is essential for the plaintiff to maintain

impartiality and avoid arbitrariness. For instance, consider the scenario
where ‘A’ holds a total of Rs. 10,000, which ‘B’ and ‘C’ both claim against
each other. ‘B’ and ‘C’ are brought to court by ‘A’ in an interpleader suit.
During the proceedings, it is revealed that ‘A’ had previously reached an
agreement with ‘B’ before filing the suit, stipulating that if ‘B’ were to
win the case, he would accept only Rs. 9,000 from ‘A’ as full settlement
of his claim. Since ‘A’ has an interest in the subject matter of the suit
due to this arrangement, he is not eligible to initiate an interpleader
suit. Consequently, the complaint should be dismissed.

Section 88 and Order XXXV of CPC: Interpleader Suits

Section 88 and Order XXXV of the Code of Civil Procedure, 1908
encompass the provisions governing Interpleader suits.
Section 88 delineates the criteria and conditions under which an
interpleader suit can be initiated. It specifies the essential elements of
an interpleader suit as follows:
 Similar Property: There must be property involved that is of a
similar nature, which can include a mortgage, a sum of money, or
any movable or immovable property.
 Multiple Claims: Two or more parties must assert competing
claims against each other regarding the said property.
 Disinterested Claimant: The person initiating the suit (plaintiff)
claiming the property must not have any interest in it, except for
potential charges or expenses. This disinterest is crucial, as the

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plaintiff must be in a position to deliver or transfer the property to

the rightful claimant.
 Interpleader Action: A person claiming property may commence
an interpleader action against all the claimants involved. The
objective is to determine which claimant is entitled to receive
payment or possession of the property. Additionally, the plaintiff
seeks indemnity for themselves in this process.
The Hon’ble Calcutta High Court, in the case of Asan v.
Saroda, established that a suit cannot be considered an interpleader
suit in CPC if the defendants do not assert conflicting claims against
each other. Furthermore, the plaintiff must either acknowledge the title
of one of the defendants or be willing to make payment or deliver the
property to that defendant.
The proviso to Section 88 further stipulates that no interpleader suit
shall be instituted when there is an ongoing lawsuit in which the
interests of both parties can be adequately determined.

Order XXXV Rule 1 – Plaint in an Interpleader Suit

Order XXXV Rule 1 of the Code of Civil Procedure, 1908 pertains to the
Plaint in an interpleader suit. This rule mandates certain key elements
that must be included in the plaintiff’s complaint:
 Lack of Interest: The plaintiff, in the interpleader suit, must
explicitly state that they have no interest in the subject matter of
the suit or in the individual claims made by the defendants.
 Absence of Conspiracy: The plaintiff must unequivocally assert
that there is no collusion or conspiracy between the claimants and
any of the defendants throughout the course of the case.
 Listing Defendant’s Claims: The plaintiff is required to include
all the arguments and claims presented by the defendants in the
complaint.
 Willingness to Present Property: If the property in dispute is
movable, the plaintiff must express their willingness to place it
before the court for resolution.

The Hon’ble Bombay High Court’s ruling in the case of Mangal Bhikaji
Nagpase vs. State of Maharashtra emphasised that the plaintiff must
affirm, in accordance with Rule 1, that they possess no interest in the
disputed subject matter apart from potential charges or costs.

Order XXXV Rule 2 – Payment of the Thing Claimed into Court

Order XXXV Rule 2 addresses the situation where the disputed property
can be paid into court or placed in the custody of the court. In such
cases, the plaintiff may be obligated to take this action before being
entitled to any order in the suit. The Hon’ble Patna High Court, in the
case of Syed Shamshul

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Haque v. Sitaram Singh & Ors., clarified that the court has discretion
to issue orders concerning the disputed property and the concerned
party must adhere to these orders before seeking relief from the court.

Order XXXV Rule 3 – Procedure where Defendant is Suing the

Plaintiff in an Interpleader Suit
Order XXXV Rule 3 outlines the procedure to be followed when a
defendant in an interpleader suit is also suing the plaintiff regarding
the subject matter of the suit. In such instances, the court in which the
suit against the plaintiff is pending must stay the proceedings upon
being informed by the court where the interpleader suit was initiated.
The costs incurred by the defendant in the stayed suit should be
provided for within that particular suit.

Order XXXV Rule 4 – Procedure at First Hearing in Interpleader

Suit
Order XXXV Rule 4 addresses the procedure at the first hearing of an
interpleader suit. This rule provides the court with certain powers and
options:
Plaintiff’s Release from Liabilities: The court has the authority to
release the plaintiff from all liabilities at the first hearing. Consequently,
the court may grant the plaintiff their costs and dismiss the case. This
means that if the court determines that the plaintiff has no further role
or responsibility in the matter, they can be discharged from the suit.

Retention of Parties: However, if the court believes that it is necessary

for the sake of justice, propriety, or convenience to retain all parties to
the suit, the plaintiff may not be discharged until the suit reaches its
final resolution. This discretion allows the court to determine whether
it is appropriate to release the plaintiff or to keep them involved in the
proceedings.

Framing and Trying Other Issues: If the court deems it suitable, it

may also order that additional issues be framed and tried concurrently
with the suit. Furthermore, the court may allow any complainant (i.e.,
the defendant in the interpleader suit) to be made a plaintiff, either in
place of or in addition to the original plaintiff, if deemed necessary.

Order XXXV Rule 5 – Who cannot file Interpleader suit?

Order XXXV Rule 5 outlines who is ineligible to file an interpleader suit.
In the case of Jugal Kishore & Anr. v. Bhagwan Das, the court clarified
that certain parties cannot initiate an interpleader suit in CPC.
Specifically, agents cannot sue their principals and tenants cannot sue
their landlords with the intention of compelling these principals or

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landlords to interplead with individuals other than those claiming

through them.

Order XXXV Rule 6 – Charge of Plaintiff’s Cost

Order XXXV Rule 6, the final rule in this order, deals with the charge of
the plaintiff’s costs. When an interpleader suit is appropriately initiated,
the court will determine how the original plaintiff’s costs will be
compensated. This compensation may be obtained by charging the
plaintiff a fee equivalent to the amount in dispute or by utilising a
similar method that proves to be equally effective and successful.

Essentials of an Interpleader Suit

Before initiating an interpleader suit in CPC, the following conditions
must be met as per Section 88:
 Disputed Debt or Property: There must be a disputed debt, sum
of money, or other property, whether movable or immovable.
 Multiple Claimants: Two or more persons must be making
adverse claims to this debt, money, or property.
 Disinterested Claimant: The person from whom the debt,
money, or property is claimed should not have any interest in it,
except for charges and costs. They must be willing and ready to
pay or deliver it to the rightful claimant.
 No Pending Suit: There should be no other pending suit where
the rights of the rival claimants can be properly adjudicated.

Who may File an Interpleader Suit?

As per the case of Robinson v. Jenkins (1890), a person who has no
interest in the debt, money, or property except for the charges and costs
incurred by them and is prepared to pay or deliver it to the rightful
claimant, may file an interpleader suit in CPC.

The Reinstitution of Interpleader Suit

Where interpleader suit may be reinstituted and Power to state case for
the opinion of the Court is defined under Section 88 and 90 of the Code
of Civil Procedure 1908. An interpleader suit may be reinstituted when
multiple defendants blame each other for claiming the same property,
debt, or sum of money from the plaintiff, who is not in direct possession
of the property, does not claim any interest and is willing to deliver the
property. However, if a suit related to res judicata (a matter already
adjudicated upon) is pending in one court, a similar suit cannot be
instituted in another court.

The Object of Filing Interpleader Suit

An interpleader suit in CPC is typically filed with the following
objectives:

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 Adjudication of Claims: The suit aims to adjudicate the

competing claims made by the defendants, thereby determining
the rightful claimant.
 Property Distribution: In cases where a person passes away
without transferring property to other family members, a family
member may need to claim the property or money from a bank.
The bank, in turn, may initiate an interpleader suit to decide who
should receive the property. This type of suit is filed in the court
where the doctrine of res judicata applies.

Procedure for Filing Interpleader Suit

The procedure for interpleader suits is governed by Order 35, Rules 1
to 4 of the Code of Civil Procedure, 1908. Here is a summary of these
rules and two landmark cases related to interpleader suits:

Rule 1: In every interpleader suit, the plaintiff must include the

following statements in the plaint:
 The plaintiff claims no interest in the subject matter in dispute
except for the charges and costs.
 The claims have been made by the defendants separately.
 There is no collusion between the plaintiff and any of the
defendants.
The court may also order the plaintiff to deposit the disputed amount
or place the property in the custody of the court, providing the plaintiff
with a charge on the thing claimed to cover the costs incurred.

Rule 4: According to this rule, the court has the authority to declare
that the plaintiff is discharged from all liability, award them costs and
dismiss them from the suit at the first hearing. Based on the available
evidence, the court may also adjudicate the title to the property in
dispute. If adjudication is not feasible, the court may direct that issues
be framed and tried between the parties and one of the claimants may
be made a plaintiff either instead of or in addition to the original
plaintiff. The suit then proceeds in an ordinary manner.

Landmark Cases on Interpleader Suit

Neeraj Sharma v. The District Sangrur Khadi Gram

In this case, the Punjab and Haryana High Court clarified that agents
and tenants are not allowed to file interpleader suits against their
principals and landlords, as per Order XXXV Rule 5 of the Code of Civil
Procedure, 1908. A tenant cannot sue their landlord when the dispute
does not involve parties who have claimed through the landlord.
Interpleader suits are intended to resolve claims made through the
person initiating the suit. If someone is claiming a right and interest in

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the property without reference to the landlord and demanding rent,

such claims are not maintainable.

Hanumanth Vajhula Jagannadha v. Vajhula Annapurna

Rajesswaramma
This case deals with excess execution questions, where property not
covered by the decree is delivered in execution of the decree. The court
clarified that in such situations, an appeal under Section 47 of the Code
of Civil Procedure is the appropriate recourse for the judgment debtor
to recover the property that was delivered in excess of the decree. It
emphasises that a separate action is not necessary in such cases.

Conclusion
Section 88 and Order XXXV of the Code of Civil Procedure, 1908 deals
with interpleader suit. These provisions serve to safeguard individuals
who act in good faith from facing condemnation due to their non-
fulfillment of certain duties, particularly in cases where they have no
vested interest in property or where they are the complainants seeking
resolution of disputes over property or debt.
By providing protection for a person’s right to legal costs in such
scenarios and by facilitating the determination of rightful claims,
interpleader suit help ensure fairness and justice in civil proceedings.
However, in cases where these rights are not adequately protected or
are ignored by the courts, individuals can resort to an appeal process
as outlined under Order XLIII Rule 1 of the Code of Civil Procedure,
1908.

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Dilatory pleas:

Dilatory Pleas:
Another plea may sometimes be taken which merely delays the trial of
a suit on merits, e.g., a plea that the hearing should be stayed under
Section 10, C.P.C., or that the suit has not been properly framed, there
being some defect in the joinder of parties or cause of action and the
case cannot be decided until those defects are removed.
These pleas are called “dilatory pleas” in contradistinction to the other
pleas which go to the root of the case and which are therefore known as
“peremptory pleas” or “pleas in bar”. Some dilatory pleas are not
permitted in pleadings, but must be taken by separate proceedings.
Others may either be taken in the written statement under the heading
“Preliminary Objections”, or by a separate application filed at the
earliest opportunity, as some pleas, such as that of a mis-joinder and
non-joinder, cannot be permitted unless taken at the earliest
opportunity (O. 1, R.7 and 13).

Dilatory pleas are legal arguments or objections raised by a party to

delay or obstruct the progress of a case, often without merit or
substance.

Characteristics:

1. Frivolous or vexatious
2. Lack of merit or substance
3. Intended to delay or obstruct proceedings
4. Often repetitive or reiterative

Examples:

1. Challenging jurisdiction or venue

2. Raising unnecessary technical objections
3. Seeking unnecessary adjournments
4. Filing multiple interlocutory applications
5. Disputing established facts or law

Consequences:

1. Delayed justice
2. Increased costs and expenses
3. Waste of judicial time and resources
4. Frustration and harassment of opposing parties

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Judicial Response:
1. Dismissal of dilatory pleas
2. Imposition of costs or penalties
3. Summary judgment or dismissal
4. Contempt proceedings

Relevant Provisions:

1. Code of Civil Procedure (CPC), 1908: Order XIV, Rule 2 (dismissal of

vexatious suits)
2. Code of Criminal Procedure (CrPC), 1973: Section 309 (expeditious
trial)
3. Indian Evidence Act, 1872: Section 114 (presumption against dilatory
pleas)

Case Laws:
1. Rajendra Narayan Deb v. Kedar Nath (1976) 3 SCC 321
2. State of Punjab v. Devans Modern Breweries Ltd. (2003) 8 SCC 273
3. M/s. K Raheja Constructions Pvt. Ltd. v. M/s. Mahavir Housing and
Infrastructure Pvt. Ltd. (2010) 14 SCC 679

Best Practices:
1. Raise genuine and substantive objections
2. Avoid repetitive or frivolous arguments
3. Cooperate with the court and opposing parties
4. Focus on merits of the case

Caveat under Section 148a of CPC

The term “caveat,” originating from Latin, means “let a person be
aware.” In the legal context, it can be understood as a notification that
requests someone not to take specific actions without first informing
the party issuing the notification.

In civil procedure law, the concept of a caveat is addressed in Section

148A. Although the Civil Procedure Code does not provide a specific
definition for “caveat,” a court ruling in the case of Nirmal Chand v.
Girindra Narayan clarified that a caveat in CPC is essentially a warning
from an individual to the court. This warning states that no order or
judgment should be issued without notifying the person who lodged the
caveat or without allowing them an opportunity to be heard.

The person who files a caveat is known as the “Caveator,” while the
individual initiating a lawsuit or intending to do so is referred to as the
“caveatee.” The primary purpose of a caveat is to ensure that the court

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does not make decisions in the absence of one party, known as “ex
parte” orders and to safeguard the interests of the Caveator.

Additionally, a caveat under CPC serves to reduce the court’s workload

and can expedite the resolution of legal disputes by minimising the
number of separate legal proceedings. However, it’s important to note
that in the case of Kattil Vayalil Parkkum Koiloth v. Mannil Paadikayil
Kadeesa Umma, the court ruled that a caveat cannot be filed by
someone who has no direct involvement in the lawsuit, emphasising the
caveat’s purpose to be cost-effective and convenient for the court.

When to Lodge a Caveat in CPC?

As per Section 148A, individuals have the right to lodge a caveat when
they suspect that a case has been or will be filed against them in any
court. A caveat under CPC can be submitted in the form of a petition
under the following circumstances:
 During an ongoing lawsuit or legal proceeding and an application
has either already been submitted or is anticipated.
 When a lawsuit is on the verge of being initiated and it is expected
that an application will be filed in that lawsuit.
In summary, the caveat always pertains to an application within a
lawsuit or legal proceeding. Additionally, the lawsuit or proceeding can
either be ongoing (already instituted) or anticipated in the future, where
a lawsuit has not yet been initiated but is expected to be. In all such
situations, the right to lodge a caveat comes into play.

Who May Lodge a Caveat under CPC?

Section 148A also specifies that a caveat can be submitted by any
individual, whether or not they are a party directly involved in the
lawsuit. However, the person filing the caveat must have the legal right
to present themselves before the court concerning the specific lawsuit
in question. This means that a third party can file a caveat in CPC if
they have some connection or involvement with the lawsuit.

It’s essential to emphasise, though, that a caveat cannot be lodged by a

person who has no meaningful connection to the case. This principle
was established in the case of Kattil Vayalil Parkkum Koiloth v.
Mannil Paadikayil Kadeesa Umma.

Section 148A of the CPC states:

“148 A. Right to lodge a caveat.–
(1)Where an application is expected to be made or has been made, in a
suit or proceeding instituted or about to be instituted, in a Court, any

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person claiming a right to appear before the Court on the hearing of

such application may lodge a caveat in respect thereof.
(2) Where a caveat has been lodged under sub-section (1), the person
by whom the caveat has been lodged (hereinafter referred to as the
caveator) shall serve a notice of the caveat by registered post,
acknowledgement due, on the person by whom the application has been
or is expected to be, made, under sub-section (1).
(3) Where, after a caveat has been lodged under sub-section (1), any
application is filed in any suit or proceeding, the Court, shall serve a
notice of the application on the caveator.
(4) Where a notice of any caveat has been served on the applicant, he
shall forthwith furnish the caveator at the caveators expense, with a
copy of the application made by him and also with copies of any paper
or document which has been or may be, filed by him in support of the
application.
(5) Where a caveat has been lodged under sub-section (1), such caveat
shall not remain in force after the expiry of ninety days from the date
on which it was lodged unless the application referred to in sub-section
(1) has been made before the expiry of the said period.”
Where Can a Caveat be Lodged?
A caveat in CPC can be lodged in various types of courts when the
caveator expects legal proceedings to be initiated against them in the
near future. This includes Civil Courts with original jurisdiction,
Appellate Courts, High Courts and even the Supreme Court. Civil
Courts encompass a range of judicial bodies such as Courts of Small
Causes, Tribunals, Forums and Commissions.
However, it’s essential to note that in the case of Deepak Khosla v.
Union of India & Ors, the court ruled that Section 148A of the Civil
Procedure Code applies exclusively to civil proceedings. Therefore,
caveats cannot be filed against petitions under the Criminal Procedure
Code or petitions made under Article 226 of the Constitution of India.

How to File a Caveat under CPC?

To file a caveat under Section 148A, the caveator or their advocate must
sign the document. If an advocate represents the caveator, the caveat
should be accompanied by a Vakalatnama (a legal authorisation for
representation).
The caveat is then registered in a designated caveat register maintained
by the courts. This registration can be in the form of a petition or any
other prescribed format. The caveat in CPC register includes
information such as the date of the caveat, the name and address of the
caveator, the names of the plaintiff and defendant and the anticipated
date and proceeding number as perceived by the caveator.

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When filing a caveat under CPC, a copy of the caveat, postal proof of
sending the caveat to all relevant parties and an application explaining
that copies have been sent should be included. The court fees for filing
a caveat may vary depending on the specific court, but it is generally a
nominal amount, typically less than INR 100. The rules and format for
caveats are usually consistent across most courts.

When filing a petition of caveat in CPC in the Delhi High Court, you
should follow the steps outlined below:

Prepare the Petition and Affidavit:

Draft the caveat petition outlining the necessary details of the case, your
concerns and your interest in appearing before the court.
Prepare an affidavit to support your caveat petition. The affidavit should
be signed by the caveator, which is you.

Attach Supporting Documents:

Include a Vakalatnama if you are represented by an advocate. This
authorises the advocate to represent you in the case.
If there is an impugned order related to the case, include a copy of this
order as it may be relevant to your caveat under CPC.

Include proof of service of notice of the caveat to all relevant parties.

This ensures that the court is aware that you have provided notice to
all concerned parties.

Submission to the Court:

Submit the signed caveat petition, affidavit, Vakalatnama (if applicable),
impugned order (if any) and proof of service of notice of the caveat to
the Delhi High Court.

What Does a Caveat Contain?

A caveat, which serves as a notice to the court regarding certain actions
that should not be taken without informing the caveator, typically
includes the following information:
 Name of the Caveator: The person or entity lodging the caveat.
 Address of the Caveator: The address where the notice should
be sent.
 Name of the Court: The specific court where the caveat is being
filed.
 Suit and Appeal Information: If applicable, the caveat should
include the suit number and the number of the appeal.
 Brief Details about the Suit or Appeal: A concise description of
the lawsuit or appeal that is anticipated to be filed.

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 Names of Probable Plaintiffs/Appellants and

Respondents: The names of the individuals or parties who are
likely to initiate the lawsuit or appeal, as well as the names of
those who may be on the opposing side.

Notice of Caveat in CPC

When a caveat is filed, the court typically serves a notice to the caveator,
informing them about the caveat application. Upon receiving this notice,
it becomes the responsibility of the applicant (the party initiating the
legal action) to provide the caveator (the individual who filed the caveat)
with a copy of the application they have submitted, including any
accompanying documents. This is done at the expense of the caveator.
Failure to follow these notification procedures can have significant
consequences. If the court or the applicant disregards the caveat in CPC
and fails to notify the caveator as required, any judgment or decree
subsequently issued by the court may be considered null and void. This
underscores the importance of adhering to the rules and procedures
related to caveats in legal proceedings, as it ensures that all parties
involved have the opportunity to participate and present their cases
fairly.

Time Period of Caveat

Caveats are typically lodged after a court has already issued a judgment
or order. This means that they are filed as a precautionary measure by
a party who anticipates that someone else may take legal action against
them following the court’s decision.
However, in exceptional cases, it is possible to file a caveat in CPC before
the judgment is pronounced or an order is passed. This is usually done
when there is a strong reason to believe that such a judgment or order
is imminent and the caveator wants to be prepared to have their say in
the proceedings.
A caveat in CPC, once filed, remains in effect for a period of 90 days
from the date of its filing. After this initial 90-day period, it is possible
to file a fresh caveat petition if necessary. This allows the caveator to
continue to be notified and have the opportunity to participate in the
legal proceedings.
The ability to file a fresh caveat petition ensures that the caveator’s
interests are protected, especially in cases where ongoing or potential
legal disputes are protracted over time. It provides a mechanism for the
caveator to stay informed and involved in the proceedings as needed.

Whether Caveat Application is Viable in Criminal Cases to

Contradict The Prayer of Accused Seeking An Interim Order
In the case of Deepak Khosla Vs. Union of India & Others, a Division
Bench of the High Court examined the provisions of the Civil Procedure

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Code, 1908 and the Code of Criminal Procedure, 1973. The court
reached a conclusion emphasising that Section 148A of the CPC is a
part of the Code of Civil Procedure, which is specifically designed to
govern civil suits adjudicated by civil courts. Civil courts handle cases
of a civil nature.
The court concurred with the judgments of the Kerala High Court and
the Rajasthan High Court in the cases of Harikishan Vs. Jacob (supra)
and Sahab Ram & Anr. (supra).

These judgments highlighted that the CPC and CrPC are distinct legal
codes that provide procedures for handling proceedings in civil and
criminal matters, respectively, as indicated in their respective codes.

Importantly, the provision for caveat is explicitly mentioned in the Civil

Procedure Code, outlining the process and requirements for filing
caveats in civil cases. However, the legislature has not included any
similar provisions related to caveats in the Code of Criminal
Procedure (CrPC).

As a result, the court in this case concluded that filing a caveat in a

criminal proceeding is not viable or maintainable because the legal
framework for caveats is established in the civil domain through the
CPC and no corresponding provisions exist in the CrPC for criminal
proceedings.

This ruling underscores the separation of procedures and legal

principles between civil and criminal cases, as well as the importance
of adhering to the specific legal provisions applicable to each type of
case.

Right and Duties

Let’s break down the rights and duties of the caveator, the court and
the applicant when a caveat is filed:

Rights and Duties of the Caveator under CPC

The caveator, as per Clause (2) of the section, must serve a notice of the
caveat to the person who has made or is expected to make an
application that is relevant to the caveat in CPC.
When filing the caveat, the caveator declares one of the following: either
there is a current suit where an application is anticipated or there is an
ongoing application within a suit and they wish to be represented.
Alternatively, they may state that a future suit will be filed and within
that suit, an application is expected and they desire representation.
Before becoming entitled to notice, the caveator must provide a notice
to the person from whom they expect the relevant application. This

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notice should be sent via registered post and serves as an alert to the
applicant that a caveat under CPC has been filed.

Rights and Duties of the Court

The court’s duty is triggered once a caveat is lodged and notice is served
upon the applicant. According to Clause (3) of the Section, after a caveat
has been lodged, if any application is subsequently filed in any suit or
proceeding within the next 90 days, the court is obligated to serve a
notice on the caveator.
This means that if, after filing the caveat under CPC, an application is
made within the next 90 days, the court must inform the caveator by
serving them notice. This allows the caveator the right to be heard before
the court in relation to the application.

Rights and Duties of the Applicant

In addition to the court providing notice, the applicant is also
responsible for serving a notice to the caveator, informing them that an
application pertaining to the filed caveat in CPC has been submitted.
Clause (4) of the section directs the applicant to furnish the caveator
with a copy of the application they have made, along with any other
supporting documents or papers they have filed in support of their
application.
The court will not proceed with the application unless the applicant
submits an affidavit confirming that they have served a notice to the
caveator.

Case Laws on Caveat under CPC

The case of Smt. Gangamma vs. Sri G. Dayanandha on November 28,
2017, in the Karnataka High Court determined that the properties listed
in the plaintiff’s schedule and the properties mentioned in the caveat
petition were entirely different. Consequently, the defendant’s petition,
in which they claimed the right to appear before the court regarding this
matter, was viewed as an attempt to protect the caveat petition’s
scheduled property from potential interference or danger. As a result,
the court rejected the defendant’s memorandum.

In the case of Yaseen and 4 Others vs. Mahendra Yadav, Naib

Tehsildar, on October 7, 2020, the Allahabad High Court clarified that
the 90-day period during which caveats filed under Section 148-A of the
Civil Procedure Code remain in force should exclude any period affected
by lockdowns or disruptions in the functioning of courts and tribunals.
This ruling acknowledges that external factors such as lockdowns and
court disruptions can affect the time limitations associated with caveats
and thus, these periods should not be counted toward the 90 days.

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Conclusion
A caveat in CPC is a legal notice filed in anticipation of a legal action. It
serves as a precautionary measure, warning that no decisions or actions
should be taken by the court without informing the caveator.
This mechanism safeguards the rights and interests of individuals or
entities involved in legal proceedings, ensuring they have the
opportunity to be heard before any judgments or orders are passed.
Caveat under CPC helps maintain transparency, fairness, and due
process within the legal system, allowing parties to protect their
positions and participate effectively in the resolution of disputes.

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Explain the different modes of service of summons:

Summon occupies an important place in judicial administration. It is

well known word I judicial procedure. Normally, it is a convenient
method by which any party, individual, witness or defendant can be
asked to present himself before the court. The order is issued to any
party, individual, witness and defendant to present himself before the
court by means of summon.
Therefore, summon is an order of the court which is issued to any
person to present himself before the court. It is issued to defendant after
the case is filed by the plaintiff.

Normally, summon is issued to defendant to present written statement

within a period of 30 days. But under special circumstances or reasons,
this period may be extended to 90 days by the court (order 5, rule 1).

The copy of plaint should be included with the summon. Without this,
the service of summon is not considered valid (Lakshmi Bai Vs Keshari
Mal Jain 1995, MPLJ 105).

The following are the requisites of a valid summons:

a. it should be signed by the presiding officer issuing the summons
or by the officer appointed for that purpose;
b. the seal of the court should be affixed on it;
c. the copy of plaint should be enclosed;
d. the date, place and time should be mentioned when any individual
and his advocate is to present in the court;
e. the purpose of issuing summons should be mentioned
f. if the summon is issued to call any document then full particular
of that document should be given.

The service summons can be effected by means of following methods:

i. by registered post
ii. by speed post
iii. by currier service;
iv. by message by fax (order 5, Rule 9).

Modes of Service:
Under Rule 12, order 5 of Civil Procedure Code 1908, various modes of
service of summons have been described.

These modes are as follows:

1. Personal Service:
This is the most popular method of service of summons. Under
this, the copy of summons is given to the defendant. The signature

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of the defendant are taken on the second copy. Such service may
be effected on the authorized agent of the defendant (Order 5, Rule
15).

2. Service by fixing the Summons:

This is the second method of service of summons. When the
personal service is not possible; then the copy of the summons
can be affixed on that building; gate or at such visible places
where that person;

i. resides; or
ii. does his business; or
iii. works himself for profits or gains (order 5, Rule 17).

When service of summons is effected by above method, then the officer

who effects such service by this mode will submit his report to the court
mentioning the reasons for such service. The names and addresses of
those persons will be written who have identified such house.

When summons have been issued on both husband and wife both, and
the husband has refused to take summons; the service of summons on
wife could not have been made because she was inside the house; then
the affixing the summons on the visible portion of the house was
considered proper (Meera Rani De Vs Goswami, A.I.R. 1977, Calcutta
372).

3. Substituted Service:
The third method of service of summons is substituted service. Its
mention has been made under order 35, Rule 20 of the code. This
mode of service is used only when;

a. the defendant tries to avoid taking summons, or

b. the summons could not be served by other normal methods.

Under such conditions, the summons can be served by using the

following methods:
iii. by affixing one copy of the summons on the consoecuous
place of the court;
iv. by affixing the conspicuous place of the resident of the
defendant at his place of business or at the place where he
works and
v. by publishing in the daily newspaper circulating in that
area.

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This type of service has the same effect as the effect of personal service.
In Mrs. Rampyari Devi Vs Additional District Judge (second) Ajamgarh
[(A.I.R. 1989, Allahabad 93] the publishing of summons in newspaper
was held as valid service of summons.

4. Service of summons by post:

Under Rule 9, order 5 of the code, the service of summons can be
also be made by following methods:
a. By registered post;
b. By speed post;
c. By courier service;
d. By fax message;
e. By electronic mail service.
When a summon is sent by registered post then the acknowledgement
si signed by the defendant or his agent. It is sufficient service of
summons. If the defendant refuses to take this, it is also considered as
sufficient service (Sameer Snigdha Chandra Vs Pranya Bhushna
Chandra, A.I.R. 1989, Orissa 185).

5. Service of Summons on the defendant leaving in the

jurisdiction of other court:
If the service of summons is to be effected on the defendant who
is detained in the prison, their for such service, the incharge of
such service prison shall be:

a. informed or
b. summon shall be sent to him by post; or
c. by courier service; or
d. by fax message
e. by electronic mail service.

The incharge of such prison shall effect the service fo such summons
on the defendant (order 5, Rule 24).

6. Service of Summons Outside India:

If the service of summon is to be effected on such person who
resides outside India and his representative or agent does not
reside in India, then summons shall be rent to him;

a. by post;
b. by courier services;
c. by fax message;
d. by electronic mail service (order 5, Rule 25)

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if such defendant resides in Bangladesh or Pakistan, then the summons

shall be sent to any court in that country.

7. Service of Summons by Political Agent or Court:

Another mode of service of summon in other countries has been
stated under order 5, Rule 26 of the code. According to this,
summons shall be sent to the political agent or court of that
country under whose jurisdiction such defendant resides, does
his business or works for profits or gains.

8. Service of summons on the Public Officer:

If the service of Summons is to be effected on:

a. any public officer

b. any employee in service of Railway Company or
c. on local officer.
Then summons shall be sent to the Head of such Office under whose
subordination such officer works. The head will effect the service of
such summons (order 5, Rule 27).

If the service of summons is to be made on such officer who is engaged

in army, Air Force of Navy, then the summons shall be sent to such
commanding officer. The commanding officer shall effect service of such
summons on soldier, soulor or airman (order 5, Rule 28).

What is an acknowledgement of debt? What is its effect on

limitation?

Effect of acknowledgment in writing under Section 18:

(1) Where, before the expiration of the prescribed period for a suit or
application in respect of any property or right, an acknowledgement of
liability in respect of such property or right has been made
in writing signed by the party against whom such property or right is
claimed, or by any person through whom he derives his title or liability,
a fresh period of limitation shall be computed from the time when
the acknowledgement was so signed.
(2) Where the writing containing the acknowledgement is undated, oral
evidence may be given of the time when it was signed; but subject to
the provisions of the Indian Evidence Act, 1872 (1 of 1872), oral
evidence of its contents shall not be received.
Explanation. —For the purposes of this section-
(a) An acknowledgment may be sufficient though it omits to specify
the exact nature of the property or right, or avers that the time for
payment, delivery, performance or enjoyment has not yet come or is
accompanied by a refusal to pay, deliver, perform or permit to enjoy, or

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is coupled with a claim to set-off, or is addressed to a person other than

a person entitled to the property or right;
(b) The word “signed” means signed either personally or by an
agent duly authorized in this behalf; and
(c) An application for the execution of a decree or order shall not be
deemed to be an application in respect of any property or right.

Principle of Section 18 of Limitation Act, 1963:

 This section is based on the principle that the bar of
limitation should not be allowed to operate in cases in which the
existence of a claim is acknowledged by persons who are under
the liability. Every acknowledgement affords a new proof of the
existence of debt.
 Section 18 does not enlarge the period of limitation, but a fresh
period begins to run from the date of acknowledgement.
Acknowledgement of liability by the defendant interrupt limitation
i.e., cancels the already elapsed portion of the period of limitation
and allows a fresh period of limitation from the date of such
interruption.
 Such an acknowledgement, however, does not extinguish
the original cause of action nor create a new one. An
acknowledgment merely recovers the debt.

Requisites of a Valid Acknowledgement:

 Acknowledgment must be made before the expiration of
the limitation period. It must be made after the period of
limitation has begun to run and while it is actually running.
 Acknowledgement of liability must be in writing. Hence oral
acknowledgment is not sufficient.
 Acknowledgment must be signed by the person making the
acknowledgment or by his duly authorized agent.
 Acknowledgment must be made by the party against whom any
property or right is claimed or by some person through
whom he derives title or liability.
 Acknowledgment must be in respect of the particular
property or right claimed in the suit or application.
 Acknowledgment need not be express, it may be by necessary
implication.

Section 19 of Limitation Act, 1963:

Effect of payment on account of debt or of interest on legacy-
 Where payment on account of a debt or of interest on
a legacy is made before the expiration of the prescribed
period by the person liable to pay the debt or legacy or by his

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agent duly authorized in this behalf, a fresh period of limitation

shall be computed from the time when the payment was made:
 Provided that, save in the case of payment of interest made before
the 1st day of January, 1928, an acknowledgment of the
payment appears in the handwriting of, or in a writing signed
by, the person making the payment.
 Explanation. —For the purposes of this section:

o (a) where mortgaged land is in the possession of the
mortgagee, the receipt of the rent or produce of such land
shall be deemed to be a payment;
o (b) “debt” does not include money payable under a decree
or order of a court."
 Section 19 provides for the computation of the period of
limitation when a payment on account of debt or of interest
on legacy is made.

Essential Conditions of Section 19:

 The payment must be made within the prescribed period of
limitation.
 It must be acknowledged by some form of writing either in
the handwriting of a prayer himself or signed by him. If there is
no acknowledgment in the required form, the payment by itself is
of no avail.
 Th word “prescribed” means the period prescribed in the First
Schedule, not the period within which the plaintiff may bring his
suit.
 The term ‘person liable to pay debt’ includes not only a person
who is personally liable but also a person who is not personally
liable but whose interest in the family property is liable.

Section 20 of Limitation Act, 1963:

Effect of acknowledgement or payment by another person-
 This section is an explanatory as well as supplementary section
to Section 18 and 19 and does not constitute an exception in the
case of either of these section.
 Section 20 deals with the question as to who can keep alive a
right which is not time- barred. It does not deal with the question
as to who can revive a time-barred debt.
 According to sub-section (1), the expression “agent duly
authorized in this behalf” in Section 18 and 19 shall, in the
case of a person under disability, include his lawful guardian,
committee or manager or an agent duly authorized by such
guardian, committee or manager to sign the acknowledgment or
make the payment.

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 Sub-section (2) declares that one of several joint contractors,

partners, executors, mortgagees, will not render the other joint
contractors, partners, executors or mortgagees chargeable under
an acknowledgment or payment made by him or his duly
authorized agent.
 Sub- section (3)(a) provides that an acknowledgment signed by or
a payment made, in respect of any liability, by
any limited owner of property (e.g., widow) governed by
the Hindu law, shall be a valid acknowledgment or
payment, against a reversioner succeeding to such liability.
 Sub-section (3)(b) provides that the manager of a Hindu joint
family can make acknowledgment and payment so as to save
limitation in regard to liabilities which are binding on the family.
Such payment or acknowledgment must be deemed to be made
on behalf of the family.

Case laws:
 Bhagwan v. Madhav (1922):
o The Bombay High Court held that an acknowledgment or
liability need not be expressed; it may be by implication.
 Union of India v. Seyadu Beedi Co. (1970):
o The Madras High Court held that just sending a letter to
the higher authorities to settle the dues does not amount to
acknowledgment. The respondent gave notice of the filing of
suit to which the appellants replied that the matter was
under investigation and if before investigation the suit is
filed then respondents will be responsible for the costs. The
court held that the reply of the appellants was not
an express acknowledgment of liability, and the facts
were not sufficient even for the implied admission of liability.
Therefore, the limitation period was not allowed to start
afresh.
 Kishori Engineering Works v. Bank of India (1991):
o The Patna High Court held that where the debtor was
making part-payment the limitation would run from
the last made part-payment.

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Interlocutory Applications
Meaning:
“Interlocutory application” means an application to the Court in any
suit, appeal or proceeding already instituted in such Court, other
than a proceeding for execution of a decree or order.

The Civil Rules of Practice and Circular Orders, Chapter I – Preliminary

– Rule 2 (J) defines: “Interlocutory application” means an application to
the Court in any suit, appeal or proceeding already instituted in such
Court, other than a proceeding for execution of a decree or order.

Chapter V: deals with (A) Interlocutory proceedings – Rule 53 to 55, 58

and 59 of Civil Rules of Practice further deals with about the form,
contents, separate application for each distinct prayer and service of
notice to other parties and every interlocutory application shall be
supported by an affidavit and true copies of application, affidavit and
the documents shall be furnished to the opposite party or counsel.

Types of Interlocutory Applications

There is a wide variety of types of interlocutory applications. Common
types include:
Injunctive Relief
Orders that stop the other party from doing something, like terminating
a contract or completing a sale purchase. They are usually urgent,
requiring the orders by a certain deadline.
Particulars
Orders to compel a party to provide particulars (details) that the other
party has requested, seeking clarification of information in legal
documents, including a statement of claim or defense.
Discovery
Orders to compel a party to provide certain documents sought by the
other party through the discovery process. Therefore, an interlocutory
application seeks orders that the documents should be discovered.
Subpoenas
Subpoenas are orders to determine whether a party can ask a third
party to provide certain documents. As above, the other party may
object to documents sought by the other party because they are not
relevant to the proceedings.
Interrogatories
Orders to compel the other party to answer certain questions, required
to determine a position on a matter in dispute. He questions must be
necessary and to help provide a fair trial.
Medical Examination
Orders that one party submit to a medical examination. For example,
this may be sought where the other party has concerns about the

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medical condition of that party and how it may impact the matters in
dispute.

Setting Aside a Default Judgment

Orders to set aside (overturn) a judgment ordered by the court when the
other side fails to lodge a defence by the deadline.

Steps to Make an Interlocutory Application

You usually make interlocutory applications after issuing court
proceedings but before the final hearing date. The procedure to make
an interlocutory application is below.

1. Complete an Application Form

An interlocutory application usually starts when the party seeking the
orders files an application form.
2. Provide Evidence
The application must be accompanied by evidence supporting your
request. For instance, this is usually an affidavit (verified statement) of
the party seeking the order and will include relevant documents.
3. File and Serve
You must file the application form and supporting affidavit with the
court and then serve it personally on the other party, or via the other
party’s lawyers.
4. Ex Prate Hearing
If the orders you seek are urgent, you may request that the interlocutory
hearing be ‘ex parte’, meaning without the other party attending.
5. Interlocutory Hearing
If the other party does not consent to the orders sought, the court will
list it for an interlocutory hearing. Depending on the orders sought, this
may be short and conducted in a few hours, or a full day or more.
However, both parties will have the opportunity to make their
arguments and question any witnesses if relevant.
6. Preparation and Hearing
Usually, your barrister (or counsel) will attend the hearing. Preparation
will involve written submissions setting out your arguments with
reference to any evidence filed with the interlocutory application.
Furthermore, other helpful preparation legal documents might be a
chronology, setting out a timeline of relevant events.

ENQUIRIES AND ORDERS IN INTERLOCUTORY APPLICATIONS:

Temporary injunctions
Order 39 of the Code of Civil Procedure, 1908 read with Section 94 (c)
of the same code deals with the granting of temporary injunctions.
Suitable injunctions or interim orders of the like nature can be granted
where an easement is actually disturbed

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or in the case of proceedings before the insolvency Courts or in the case

of proceedings under the Guardians and Wards Act, 1890 or in the case
of certain proceedings under Companies Act or in the case of
proceedings under certgain State Acts or the rules framed thereunder
or in different proceedings, under the Code of Criminal Procedure, 1973
or even by High Courts and Supreme Court in appropriate proceedings,
certain statutes in certain proceedings, like the election proceedings
specifically prohibit the granting of injunctions.
An injunction is a Judicial process whereby a party is ordered to refrain
from doing or to do particular act or thing. In the former case it is called
a restrictive injunction and in the later a mandatory injunction.
Injunction may be either final remedy obtained by a suit or a
preliminary and interlocutory relief granted while the suit is pending. In
the first case it is a decree in the second an order or writ. Whatever be
its forms, decree or order, the remedy by ordinary injunction is wholly
preventive, prohibitory
or protective. An injunction is a writ framed according to the
circumstances of the case commanding an act which the Court regards
as essential to Justice or restraining an act which it esteems contrary
to equity and good conscience.
An injunction is a remedial writ which Court issues for the purpose of
enforcing their equity jurisdiction. Injunction is writ commonly used by
Courts of equity as incident to enforcement of its commands and
decrees. An injunction is an order of the Court granted for the purpose
of restraining the doing, continuance or repetition by the person
enjoined, his servants or agents of some wrongful act which constitutes
an infringement of a legal or equitable right as for instance, a breach of
contract.

Injunctions are often classified into prohibitory or mandatory

injunctions according as whether they restrain or require the
performance of the act which is in question. An injunction is a specific
order of the Court forbidding the commission of a wrongful course of
action already began. Injunctions are a form of equitable relief and they
have to be adjusted in aid of equity and justice to the facts of each
particular case.

The object of granting an interlocutory injunction is to preserve the

matter pending the trial. Even a mandatory injunction can be granted
on an interlocutory application but such power should be exercised by
the Court sparingly and with great care and caution.

The jurisdiction to grant preventive may primarily rest upon

contractual obligations between the partners the violation of which will
be prevented to avoid irreparable injury and vexatious or interminable

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litigation. Injunction cannot be issued in favour of a trespasser or a

person who gained unlawful possession as against the true owner of the
property.
An injunction granted pendente lite until the disposal of the suit or
further orders will end in any case on the disposal of the suit or any
earlier date on which further orders may be passed.
The words until further orders do not extend its duration beyond the
date of decree. (Balbahadur Vs Bala,AIR 1924 Mad.178). Discretion
must be judicial and arbitrary: While granting or refusing an injunction,
the Courts have to take into consideration all the circumstances of the
case. Normally the discretion exercised by the trial Court will not be
interfered with by a Court of appeal unless such erroneous exercise of
jurisdiction resulted in grave mis-carriage of justice. (Shadi vs. Anrup
Singh, ILR 112 All 436)

ATTACHMENT BEFORE JUDGMENTS:

(Order 38 Rule 5 of Code Civil Procedure deals with attachment before
judgments) The general rule is that a plaintiff must first obtain a decree
and then execute the same. The question of arrest of the debtor or
attachment of the property would arise at the stage of execution of the
decree. However, under special circumstances which are specified in
Rules 1 and 5 of Order 38 Code of Civil Procedure the creditor can take
out arrest or attachment against his debtor even before the judgment.

Order 38 Rule 5: Where defendant may be called upon to furnish

security for production of property –

(1) Where, at any stage of a suit, the Court is satisfied, by affidavit or

otherwise, that the defendant, with intent to obstruct or delay the
execution of any decree that may be passed against him, –
(a) is about to dispose of the whole or any part of his property, or
(b) is about to remove the whole or any part of his property from the
local limits of the jurisdiction of the Court, the Court may direct the
defendant, within a time to be fixed by it, either to furnish security, in
such sum as may be specified in the order, to produce and place at the
disposal of the Court, when required, the said property or the value of
the same, or such portion thereof as may be sufficient to satisfy the
decree, or to appear and show cause why he should not furnish
security.
(2) The plainiff shall, unless the Court otherwise directs, specify the
property required to be attached and the estimated value thereof.
(3) The Court may also in the order direct the conditional attachment of
the whole or any portion of the property so specified.
(4) If an order of attachment is made without complying with the
provisions of sub-rule (1) of this rule, such attachment shall be void.

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(1) Court while exercising its jurisdiction under Order XXXVIII, Rule 5
of CPC is required to form a prima facie opinion at that stage.
(Rajendran vs. Shankar Sundaram, AIR 2008 SC 1170)

Appointment of Commissioners
The provisions relating to appointment of Commissioner is set out in
Civil Procedure code. Under “Incidental proceedings” section 75 and
Order XXVI Rules 1 to 22 of the Code deal with it
The aspect of Advocate Commissioner is dealt under section 75 and
Order XXVI rule 9 of Code. Civil Rules of Practice from rules 134 to 141
also deal with it.
As per section section 75 of the Code subject to conditions and
limitations as may be prescribed, the court may issue a commission in
following aspects namely –
a) To examine any person;
b) To make a local investigation;
c) To examine or adjust accounts; or
d) To make a partition;
e) To hold a scientific, technical, or expert investigation;
f) To conduct sale of property which is subject to speedy and natural
decay and which is in the custody of the Court pending the
determination of the suit;
g) To perform any ministerial act.” Whereas Order XXVI rule 9
specifically deal with Commissions to make local investigation. The rule
states that in any suit in which the court deems a local investigation to
be requisite or proper for the purpose of elucidating any matter in
dispute, or of ascertaining the market value of any property, or the
amount of any Menes profits or damages or annual net profits, the court
may issue a commission to such person as it thinks fit directing him to
make such investigation and to report thereon to the court:

Receivers
The court may appoint a receiver in a variety of circumstances. An
appointment may be made to, for example, preserve assets where there
is a dispute within a partnership or a company pending a decision on
the matters of dispute. This appointment is intended to maintain the
value of the assets so that they may be realised for the benefits of all
parties to the dispute.
The court may appoint a receiver where assets subject to a charge have
been transferred without the consent of the charge-holder or to in
regard to a proceeds of crime order. The court may appoint a receiver
on behalf of a debenture holder or judgment creditor to enforce
payment.
The court’s power to appoint a receiver It is provided under Order XL in
Code of Civil Procedure, 1908. contains 5 rules, and also provided in

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section 94 supplemental proceedings – in order to prevent the ends of

justice from being defeated the court may, if it is so prescribed.

“A receiver”, in the language of High, “is an indifferent (American

expression for impartial) person between the parties to a cause,
appointed by the Court to receive and preserve the property or fund in
litigation “pendentie lite’, when it does not seem reasonable to the Court
that either party should hold it. He is not the agent or representative of
either party to the action, but is uniformly regarded as an officer of the
Court, exercising his functions in the interest of neither plaintiff nor
defendant, but for the common benefit of all parties in interest.
Being an officer of the Court, the fund or property entrusted to his care
is regarded as being in ‘custodia legis’, for the benefit of who-ever may
finally establish title thereto, the Court itself having the care of the
property by its receiver, who is merely its creature or officer, having no
powers other than these conferred upon him by the order of his
appointment, or such as are derived from the established practice of
Courts of equity.

The Code of Civil Procedure does not define the term “Receiver”. But it
is generally understood as “A court appointed person who is appointed
because the court thinks that neither party should be in possession of
the property in dispute”.

Kerr defines a receiver as “an impartial person appointed by the

Court to collect and receive, pending the proceedings, the rents,
issues and profits of land, or personal estate, which it does not
seem reasonable to the Court that cither party should collect or
receive, or for enabling the same to be distributed among the
persons entitled.”

Simply stated, wherever the Court is of the opinion that it would not be
reasonable for either of the parties to hold the estate which is the
subject matter of the suit, then, till it is disposed, the Court may appoint
an independent and impartial third party who will take over such
property. He will manage this property as a reasonable man would and
is responsible for the maintenance of the property.

It is to be noted, that the receiver acts neither on behalf of the

plaintiff nor the defendant but is an officer of the court who acts in
general benefit of the property.

In Anthony C. Leo v. Nandlal Balakrishnan AIR 1996 SC 1323 the

Apex Court described a receiver as an impartial/ neutral person. He is
an agent of the Court. The property in the custody of the deceiver

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is custodio legis i.e., in the Custody of law or the court. The receiver has
all powers as the real owner of the property, but he always acts under
the supervision of the Court.

Case Laws:
The language of Order 39, Rule 1, C.P.C is wide enough to include an
order in the form of a mandatory injunction upon an interlocutory
application bu such a power however has to be exercised in very rare
cases and with due care and caution.
(Suranna vs. Somulu, AIR 1969 AP 368)

The granting of temporary injunction being a discretionary relief, the

conduct of the parties also always has been considered an important
relevant factor in deciding whether temporary injunction is to be
granted or not in the circumstances of particular case. (Johnson vs.
Wyatt. 5 Beav 229 Gordon vs. Cheltenliam Railway, AIR 1996 Del.
1)
Where one of the coparceners attempts to waste the property by
committing a wrongful act or makes use of the property in such a way
which may amount to ouster, in such a case temporary injunction can
be granted. (Anant vs. Balvant, (1985) ILR 19 Bom. 269)

When a suit which was dismissed for default is restored to file after
setting aside the order of dismissal for default all the interlocutory
orders made before dismissal of the suit are automatically restored.
(Mutyalu vs. Rajyalaxmamma, AIR 1978 AP 316)

Conclusion:
The meaning of the word ‘Interlocutory application’ can be understood
that an application to the court in any suit, appeal or proceeding already
instituted in such court,other than a proceeding for execution of a
decree or order. Section 141 of CPC delas with miscellaneous
proceedings. Every Interlocutory Application need not be tried as a suit
under the guise of Sec. 141 CPC. Sec.94 CPC deals with Supplementary
Proceedings. As has been discussed above, Chapter-V, Rule 60 of the
Civil Rules of Practice makes it clear that the facts that are necessary
for adjudication of the interlocutory applications are to be proved by
affidavits. An interlocutory order is an order that does not finally
determine the rights, duties and obligations of the parties to a
proceeding. Interlocutory orders may take various shapes depending
upon the requirement of the respective parties during the pendency of
the suit.

Related Question:
What is an interlocutory application?

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It is an application to ask the court to make certain orders. Court orders

are commands by a judge, declaring something to be done or prohibiting
something from being done.
When should an interlocutory application be used?
You can use an interlocutory application, such as an interlocutory
injunction, to help keep a case on track or to protect your rights. They
stop parties from acting unethically, and parties often use them when
one party believes the other has not complied with their court procedure
obligations.
What is an interlocutory hearing?
An interlocutory hearing is held if a party does not consent to the orders
sought by an interlocutory application. The hearing allows for both
sides to present their arguments so that the judge can make a decision.

Explain 'Revision'.
What are the conditions for exercise of revisional jurisdiction

Section 115 of the Code of Civil Procedure, 1908 (CPC) empowers

the High Court to entertain a revision in any case decided by any
subordinate court in certain circumstances. Revision means the action
of revising, especially critical or careful examination or perusal with
a view of correcting or improving.

Section 115 of CPC

This section lays down-

(1) The High Court, in cases arising out of original suits or other
proceedings of the value exceeding five lakhs rupees and the District
Court, in any other cases, including a case arising out of an original
suit or other proceedings instituted before the commencement of the
Code of Civil Procedure ( Orissa Amendment) Act, 2010, may call for the
record of any case which has been decided by any Court subordinate to
the High Court or the District Court, as the case may be, and in
which no appeal lies thereto, and if such subordinate Court appears—
(a) to have exercised a jurisdiction not vested in it by law; or
(b) to have failed to exercise a jurisdiction so vested; or
(c) to have acted in the exercise of its jurisdiction illegally or with
material irregularity, the High Court or the District Court, as the case
may be, may make such order in the case as it thinks fit.
Provided that in respect of cases arising out of original suits or other
proceedings of any valuation decided by the District Court, the High
Court alone shall be competent to make an order under this
section.

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(2) The High Court or the District Court, as the case may be, shall not
under this section, vary or reverse any order, including an order
deciding an issue, made in the course of a suit or other proceedings,
except where the order, if it had been made in favor of the party
applying for revision, would have finally disposed of the suit or other
proceedings.

(3) A revision shall not operate as a stay of suit or other

proceeding before the Court except where such suit or other proceeding
is stayed by the High Court or District Court, as the case may be.
Explanation—In this section, the expression, “any case which has been
decided” includes any order deciding an issue in the course of a suit or
other proceeding.

Object of Revisional Power

 It provides the means to an aggrieved party to obtain rectification
of a non-appealable order.
 It provides for the effective exercise of its superintending and
visitorial power.
 It prevents the subordinate courts from acting arbitrarily,
illegally or irregularly in the exercise of their jurisdiction.
Scope of Revisional Power
 The power given by this section is clearly limited to the keeping
of the subordinate courts within the bounds of their jurisdiction.
 In the exercise of this power, it is not the duty of the High
Court to enter into the merits of the evidence.
 It is not directed against the conclusion of law or fact in which the
question of jurisdiction is not involved.
 A revision also lies where a subordinate court has failed to
exercise jurisdiction vested in it by law.
 The jurisdiction under this section is a discretionary one. It is
limited in its scope and covers only jurisdictional errors.
 The High Court can call for the record of the case suo moto (on
its motion) and revise the same.
 The High Court is not bound to interfere under this section except
in the aid of justice.
 It applies to cases in which no appeal lies.

Case Laws
 In the case of Pandurang Ramchandra Mandlik v. Maruti
Ramchandra Ghatge (1996), the Supreme Court held that an
erroneous decision on question of law reached by the subordinate
court which has no relation to question of jurisdiction of that
court cannot be corrected by High Court under Section 115
of CPC.

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 In the case of Welcome Hotel v. State of A.P (1983), the

Supreme Court held that where a court having jurisdiction
exercises it in an irregular manner due to a mistake of the
parties, there is no ground for interference in revision.

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