The Code of Civil Procedure, 1908 Total orders - 51 - It may be amended by

(Act No. 5 of 1908) High Court.

Preamble - An Act to consolidate and Salient Feature of C.P.C 1908
amend the laws relating to the procedure ----------------------------------------------
of the Courts of Civil Judicature.
Section-1
 Trial According to N. J.
1. Short title - This Act may be called the
 Speedy Trial
code of Civil Procedure, 1908.
 Simple Procedure
2. Commencement - It shall come into
force on 1st day of Jan.1909.
3. Extent - It extends to the whole of
India except - Amendment 1976 (Salient Feature)
(a) the State of Jammu & Kashmir, --------------------------------------------------
(b) the State of Nagaland & Tribal  Power to transfer cases from one
areas. H. C. to another H.C.
Amendments in C.P.C. -  R. J. made more efficient
CPC (Amendment) Act, 1976, Feb 1,  Notice U/S 80
1977.
 W. S. filed without delay.
CPC (Amendment) Act, 1999, July 1,
 New Order 32 –A – family aided
2002.
arrangement
CPC (Amendment) Act, 2002, July 1,
 Relief to poor.
2002.
Salem Bar Adv. Association Vs State of
Tamilnadu Amendment 2002 (Salient Feature)
Held - CPC (And) Act, 2002 is ---------------------------------------
constitutionally valid. -------
Code not exhaustive - The code is  Speedy Trial, A .D. R.
exhaustive on matters specifically dealt Sec – 5- of limitation Act is applicable to
with by it. However, it is not exhaustive on appeal and applications and for enhancing
the points not specifically dealt with
the time period from filling a suit
therein.
provision is given in order 7 Rule 6. C.
Sec-151 provides that - "nothing in this
P. C. will apply.
code shall be deemed to limit or otherwise
affect the inherent power of the Court to
Section 2
make such orders as may be necessary
Definitions
for the ends of justice or to prevent abuse
Sec.2(2) Decree - Decree means the
of the process of the Court.
formal expression of an adjudication which
Total Sections - 157- It may be amended
conclusively determines the rights of the
only by Parliament.
parties with regard to all or any of the Preliminary Final Partly
matters in controversy in the suit and may Preliminary
be either preliminary or final. and Partly Final
It shall be deemed to include the
rejection of a plaint and the determination
of any question within Sec.144
Elements of Decree :-
(Restitution).
It shall not include-
(a) any adjudication from which an appeal
(1) There must be adjudication

lies as an appeal from an order, or (Application of judicial mind) of

(b) any order of dismissal for default. court [ not of award / order of
Essential elements of Decree - In order Tribunal]
that a decision of a court may be a
'decree', the following elements must be (2) Decree must be in suit (not an
present - application etc.)
(i) There must be an adjudication of the
court.
(3) Such adjudication must determine
(ii) Such adjudication must have been
substantial rights [S. R.] of
done in a suit.
parties and not of procedural
In Hansh Raj Vs D.D.M. etc.
Transway Company the Privy Council right [ P. R. like amendment,

defined suit as Civil proceeding instituted commission , appointment of

by presentation of plaint. receiver]
(iii) It must have determined the rights of
the parties with regard to all or any of the (4) It must be conclusive in nature or
matters in controversy in the suit. [not interim in nature.]
(iv) Such determination must be of a
conclusive nature.
(5) It must be formal expression of
(v) There must be a formal expression of
court [Reasoned decision so that
such adjudication.
appeal can be filed].
Judgment (2 . (9) )

Decree Order
Interim order / interim injection affect
Sec.2 (2) Sec. 2 (14)
only the parties to a suit and not the
disputed property. The courts injection
 not to construct in a disputed land There are order but deemed as
(0rder 39 R- 1), decree and are applicable.
When preliminary decree becomes final

Classes of Decree - decree -

1. Preliminary Decree In following two conditions

2. Final decree preliminary decree becomes a final

3. Partly preliminary & partly final decree decree-

Preliminary Decree - Where an (1) When the time for appeal has expired

adjudication (Judgement) decides the without any appeal being fixed against

rights of the parties with regard to all or the preliminary decree.

any of the matters in controversy in the (2) The matter has been decided by the

suit, but does not completely dispose the highest Court in appeal.

suit, it is preliminary decree. Sec 2(3) - Decree holder - Decree holder

for eg :- Suits for possession and mesne means any person in whose favour a

profits. Order-20 R-12 decree has been passed or an order

Suits for pre-emption. capable of execution has been made.

Final decree- A final decree is one which Sec 2(9) - Judgment - Judgment means

completely disposes of a suit and finally any statement given by the Judge on the

settles all questions in controversy grounds of a decree or order.

between parties and nothing further Essential Elements - Every judgment

remains to be decided. should contain -

Partly preliminary and final decree - A (1) a concise statement of the case.

decree may be partly preliminary and (2) the points for determination (issues).

partly final, eg. in a suit for possession of (3) the decision thereon

immovable property with mesne profits, (4) the reasons for such decision.

where the Court- Sec 2(11) - Legal representative -

(a) decrees possession of the property; It means a person who in law

and represents the estate of a deceased

(b) directs an enquiry into the mesne person, and includes any person who

profits. intermeddles with the estate of the

The former part of decree is final, deceased and where a party sues or is

while the later part is only preliminary. sued in a representative character the

Deemed Decree - There are two deemed person on whom the estate devolves on

decree - the death of the party so suing or sued.

(1) Order rejecting a plaint - Order VII, R- for eg.- Executor, administrator,

11 reversioner, coparcener.

(2) The determination of any que. U/s-144 Sec 2(12) - Mesne profits - Mesne profits

(Restitutic) of property (immovable) means that profits

which the person in wrongful possession
of sued property actually received or might
with ordinary diligence have received (7) Suit for foreclosure of mortgage
therefrom, together with interest on such 0rder – 34, R -2,3
profits.
But it shall not include profits due
(8) Suit for sale of mortgage property
to improvements made by the person in
0rder – 34 , R- 4, 5 .
wrongful possession.
Object - The objects of awarding a decree
for mesne profit is to compensate the
(9) Suit for redemption 0rder – 34, R,

person who has been kept out of - 7, 8 .

possession and deprived of enjoyment of
his property even though he was entitled Whether more than one preliminary
to possession thereof. decree passed in same suit ?
Sec. 2(14) - Order -
'Order' means the formal Courts have conflicting judgment at
expression of any decision of a Civil Court
this point but in Phool chand V/S
which is not a decree.
Gopal Lal Supreme Court held that in
Example of preliminary decree
partition suit more than one
preliminary decree can be passed.
(1) Suit for possession & Mesne
profits 0rder 20. R-12.
Difference between Decree and Order -
Both decree and order are formal
(2) Administrator suit 0rder– 20, R – expression of an adjudication of a Court
13 but still there are certain distinction
between them. These are as follows-
(3) Suit for pre – emption 0rder – 20 , 1. A decree can only be passed in a suit

R- 14 which commenced by presentation of

a plaint, whereas an order may or may
not originate from suit. Generally an
(4) Suit for dissolutions of partnership
order arises from applications.
0rder – 20 , R- 15
2. A decree is an adjudication/decision
conclusively determining the rights of
(5) Suit for Account between
the parties with regard to all or any of
principal & agent 0rder – 20 , R- the matters in controversy, whereas an
16 order may or may not finally
decides/determine such rights.
(6) Suit for partition and separate
possession 0rder – 20 , R- 12
3. A decree may be preliminary or final  The H.C. has jurisdiction over the
but there cannot be a preliminary territory of a State within which it is
order. situate and not beyond it.
4. Every decree is appealable unless  A Distt. Judge has no jurisdiction to try
otherwise provided, but every order is a suit for immovable property situated
not appealable. Only those orders are beyond its local limits.
appealable which are mentioned in 2- Pecuniary Jurisdiction :
Sec 104 and Order-43. In U.P. the suit upto the valuation
5. At second appeal lies in H.C. against of Rs. 5 laks is tried by Civil Judge (J.D.)
decree but no such 2nd appeal lies in and as per valuation of more than Rs. 5
case of appelable orders. laks is tried by Civil Judge (S.D.) H.C. and
6. In every suit there is one decree it Distt. Courts have no pecuniary
includes preliminary and final but there limitations.
is no such restriction in number of 3- Jurisdiction as to subject matter :
order. Different Courts have been
Sec.3 - Subordination of Courts - empowered to decide different types of
for the purposes of this code, suits.
1. The Distt. Court is subordinate to H.C., for eg.
and  Family Court
2. Every Civil Court of a grade inferior to  Small Causes Court
[Link] and every Court of small  Consumer Forum Court
causes is subordinate to- Distt. Court  Tribunal (Income Tax, Sales Tax,
and H.C. Service Matters etc.)
Jurisdiction 4- Original and appellate jurisdiction :
Jurisdiction may be defined to be the Maunsif's Courts, Courts of Civil
power or authority of a court to hear and Judges and small cause courts possess
determine a cause, to adjudicate and original jurisdiction only; while Distt.
exercise any judicial power in relation to it. Courts and H.C. have original as well as
Kinds of Jurisdiction appellate jurisdiction.
Jurisdiction of Court may be classified Error of Jurisdiction
under the following categories - 1- Lack of Jurisdiction : If a court passed
1- Territorial or Local jurisdiction : a decree in a suit in which it has no
Every court has its own territorial jurisdiction to try, such decree can be
or local jurisdiction/limites beyond which it declared as null and void by appellate
can not exercise its jurisdiction. These Court/Collateral proceedings.
limits are fixed by the Govt. 2- Irregular exercise of jurisdiction:
For eg.:- Sec.21 CPC. If a court has jurisdiction
but it is irregularly exercised, the
defect does not go to the root of the
 matter, and no objection shall be 9- Suit for sharing of offering.
allowed in appeal/revision. Following are not of civil nature suit -
Jurisdiction of Civil Courts 1- Suits involving purely caste questions
Sec - 9 not attaching to any qustion relating to
Sec.9 of CPC provides that a Civil Court officer or property.
has jurisdiction to try all suits of a Civil 2- Suits relating to purely religious rites &
nature unless their cognizance is either ceremonies.
expressly or impliedly barred by any law. 3- Suits for recovery of voluntary
Explanation - A suit in which the right to payment or offering.
property or to an office is contested is a 4- Suits against expulsions from caste,
suit of a civil nature, notwithstanding that etc.
such right may depend entirely on the 5- Suits relating to right of privacy.
decision of questions as to religious rites 6- Suit for depriving for attained a social
or ceremonies. function.
Leading case on jurisdiction of civil court Suits which are expressly barred - A suit is
is Dulha Bhai v/s State of MP said to be "expressly barred when it is
What is suit of Civil Nature - Sec.9 only barred by any Act or Law for the time
says that a Civil court shall have being inforce. When any Act or Law
jurisdiction to try all suits of civil nature but expressly excludes jurisdiction of Civil
it does not define that what is a suit of civil Court then Civil Court has no jurisdiction
nature? The explanation attached to Sec.9 to try.
says that a Civil Nature suit is a suit in for eg. -
which right to properly or an office is  Industrial Tribunal
contested. This explanation further says  Motor Accidents Claims Tribunal
that the Court will try such suit although  Income Tax Tribunal
such rights may entirely depend on the  Revenue Tribunal
questions as to religious tires and  Rent Control Tribunal
ceremonies. Suits impliedly barred -
Example of suits of civil nature - A suit is said to be "impliedly
1- Suits relating to rights to property. barred' when it is barred by general
2- Suits relating to rights to worship. principles of Law. Sometimes, certain
3- Suits relating to taking out of religious suits, though of civil nature are barred
processions. from the cognizance of a civil court on the
4- Suits relating to rights to burrial. ground of public policy.
5- Suits relating to rights to franchise. for eg.
6- Suits relating to rights to hereditary Sovereign act
officer. Compensation cann't be claimed
7- Suits for dissolution of marriage against the state for damage or loss by its
8- Suits for specific relief. sovereign act.
for eg. Acquisition of Land, Imposition of
Tax. Sec.10
Stay of Suit
At was time bomb was accidently
Res- Sub- Judice
fall at Village and many people killed.
Sec.10 CPC is based on the
Civil nature Suit English Doctrine of 'Res-sub-judice'. It
------------------------- deals with stay of suit. It provides that no
court shall proceed with the trial of any
suit in which the matter in issued is also
(1) Purely cast related question is not
directly and substantially in issue in a
civil nature suit but if a person
previously instituted suit between the
expelled from cast (example
same parties and that the Court in which
Community) then it is violation of
the previous suit is pending is competent
his legal right and it is a to grant the relief claimed in any Court
question of civil nature suit . beyond the limits of India established by
Cent. Govt. or by S.C.
(2) Right of worship and sharing of Inherent power to stay - Even sec-10
offering is a civil nature suit where do not strictly apply a Civil Court
because sharing means such has inherent power U/s-151 to stay a suit

person or claimant has right to to achieve the ends of justice.

Suits pending in foreign court -
share but suit for payment of
Explanation to sec.10 provides that there
voluntary offering is not civil
is no bar on the power of an Indian Court
nature suit because such person or
to try a subsequently instituted suit if the
claimant has not right of share.
previously instituted suit is pending in a
foreign court.
(3) Right of pardanashin women to Sec.11
remain in parda is a civil nature Res-Judicata
The Doctrine of Res Judicata is
suit because it is her
based on 3 maxims-
customary right (easementary
(a) nemo debet lis vexari pro una et
right) (but at this point there is no
eadem causa, it means no-man
settled rule of Supreme court).
should be vexed twice for the same
cause.
(4) Right to uphold dignity and honor (b) interest republicae ut sit finis litium, it
is not civil nature suit i. e. right to means it is in the interest of the State
declare guru of math is not a civil that there should be an end to a
nature suit because he has no legal litigation.
right.
(c) res judicata pro veritate occipitur, it 5. The matter directly and substantially in
means a judicial decision must be issue in the subsequent suit must
accepted as correct. have been heard and finally decided
AMRIT JAIRATH V/S PADARATH by the court in the former suit.
JAIRATH No remedy against order of Matters in issue

section 10 No appeal revision possible and

no review.
Matters Matters
directly and collaterally or
substantially in incidentally in
Leading case on Res-Judicata issue issue
Duchess of Kingstone case (R.J. not applicable)

Definition of res judicata : Sec.11

Actually Constructively
provides that no court shall try any suit or issue in issue

issue in which the matter directly and

Matter in issue - It may be directly and
substantially in issue has been directly
substantially in issue or collaterally/
and substantial in issue in a former suit
incidentally in issue.
b/w the same parties or b/w parties under
Matter directly and substantially in issue -
whom they or any of them claim, letigating
Explanation III attached to Sec.11 makes
under the same title, in a court competent
it clear that matter can not be said to have
to try such subsequent suit or the suit in
been d. & s. in issue in a suit unless it was
which such issue has been subsequently
alleged by one party and either denied or
raised, and has been heard and finally
admitted by other party. Thus the matter in
decided by such court.
respect of which no relief was claimed can
Essential elements of res judicata : It is
not become directly and substantially in
not every matter decided in a former suit
issue.
that will operate as res-judicata in a
Illustration - A sues B for rent due. The
subsequent suit. The following conditions
defence of B is that no rent is due. Here
must be satisfied for the application of
the claim for rent is the matter in respect
Sec.11 in any matter-
of which the relief is claimed is a matter
1. The matter must be directly and
d.s. in issue.
substantially in issue in both suits.
Matter actually and constructively in issue:
2. The former suit must have been a suit
A matter directly and substantially in issue
b/w the same parties or parties under
may again be so either actually or
whom they or any of them claim.
constructively. A matter is actually in issue
3. Such parties must have been litigating
when it is alleged by one party and denied
under the same title in the former suit.
or admitted by the other (Expl.I). It is
4. The Court which decided the former
constructively in issue it might and ought
suit must be a Court competent to try
to have been made a ground of attack or
the subsequent suit Exp-VIII
defence in the former suit ([Link])
 Constructive Res-Judicata raised on additional ground that since he
Explanation IV of Sec.11 says that when was appointed by the I.G. of Police, the
any matter which might or ought D.I.G. had no power to dismiss him
(possibility or expectability) to have been (Art.311 Const.).
made a ground of attact or defence, shall But the Supreme Court held suit
be deemed to have been matter directly was barred by constructive res judicata as
and substantially in issue in such suit and the plea was within the knowledge of the
has been disposed of. plaintiff and could well have been taken in
In other words if a plea could have the earlier writ petition.
been taken by a party in proceeding b/w Example of constructive Res Judicata
him and his opponent, he should not be --------------------------------------------------
permitted to take that plea against the
same party in a subsequent suit with (1) “A” files suit of possession of
reference to the same subject matter.
house on basis of ownership. His
The principle underlying in Expl. IV
suit has been dismissed. Suit on
is that where the parties have had an
basis of mortgage barred by
opportunity of making something a ground
constructive Res Judicata.
of attack or defence in a suit but such
parties have not made it a ground of
attack or defence, then it will be deemed (2) “A” files suit for cancellation of
that such ground has been raised by the promissory note on the basis
party and finally decided by Court in that coercion his suit has been
suit. dismissed. Another suit on basis
Illustration - A files a suit against B for of undue influence is barred by
declaration that he is entitled to certain constructive Res Judicata.
lands as hair of C. The suit is dismissed.
The subsequent suit, claiming, the same
(3) “A” files suit for recovery of
property on the ground of adverse
possession on basis of heir of “C”.
possession, is barred by constructive res-
His suit has been dismissed. “A”
judicata.
In State of U.P. Vs Nawab Hussain file fresh suit on basis of adverse

A Sub-Inspector of Police was possession is also barred by

dismissed by the DIG of Police. He constructive Res Judicata.
challenged the order of dismissal by filing
a writ petition in H.C. on the ground that (4) “A” file suit against “B” for
he was not afforded a reasonable redemption of property. He failed
opportunity of being heard. His contention to prove any mortgage so his suit
was, however, negatived and the petition
has been dismissed. “A” then file
was dismissed. He then filed a suit and
 fresh suit on basis title is not substantial issue, so the principle of res
barred by constructive Res judicata will not be applicable in it.

Judicata. Same parties - The second condition of

res judicata is that the former suit must
Constructive R. J. 11 (iv) have been a suit b/w the same parties or
b/w the parties under whom they or any of

Devi Lal V/S sales Tax officer them claim. A party may be a plaintiff or
defendant.
S. C. approved the rulings of Duchess
Illustration - A sues B for rent. B contends
V/S Kingston case.
that A is not the land lord. A fails to prove
his title and the suit is dismissed. Any
Parties calming under same title
subsequent either by A or X claiming
---------------------------------------------- through A is barred by Res judicata.
“A” files suit against “B” and Res Judicata b/w co-defendants -
succeeded. He (A) then file suit As a matter may be res judicata
against “C” the tenant of “B” ,”C” b/w a plaintiff and a defendant, similarly, it
cannot contest the suit as “C” drives may be res judicata b/w co-defendants

his title from (B). and co-plaintiffs also. An adjudication will

operate as res judicata b/w co-defendants

Matter collaterally or incidentally in issue- of the following conditions are satisfied-

A collateral or incidental issue 1. There must be a conflict of interest

means an issue which is ancillary b/w co-defendants.

(helping) to the direct and substantive 2. It is necessary to decide that conflict in

issue. It refers to a matter in respect of order to give relief to the plaintiff.

which no relief is claimed and yet it is put 3. The question b/w co-defendants must

in issue to enable a Court to adjudicate have been decided.

upon the matter which is directly and 4. The co-defendants were necessary or

substantially in issue. It will not operate as proper parties in the forms suit.

res judicata. Illustration - A sues B, C and D for certain

for example - A sues B for the rent due. B property. In order to decide the claim of A,

pleads abatement of rent on the ground the court has to interpret a will. The

that the actual area of the land is less than decision regarding the construction of the

that mentioned in the lease deed. The will not rival claims of the defendants will

Court, however, finds the area greater operate as res judicata in any subsequent

than that shown in the lease deed. The suit by any of the defendants against the

finding as to the access area, being rest.

acillary and incidentally to the direct and Res Judicata b/w co-plaintiffs - Just as a
matter may be res judicata b/w co-
defendants, so also it may be res judicata
b/w co-plaintiff. If there is conflict of Competent Court - The 4th condition of
interest b/w plaintiffs and it is necessary to res judicata is that the Court which
resolve the same by a Court in order to decided the former suit must have been a
give relief to the other plaintiffs and the Court competent to try the subsequent
matter is infact decides in will operate as suit. Thus, the decision of court not
res judicata b/w co-plaintiffs in the competent to my such suit will not operate
subsequent suit. as res judicata.
Pro forma defendant - A defendant to a Heard and finally decided - In order that a
suit against whom no relief is claimed is matter may be said to have been heard
called a pro forma defendant. A person and finally decided the decision in the
may be added as a p.f.d. in suit merely former suit must have been or merits.
because his presence is necessary for a Important Points -
complete and final decision of the 1. R.J. will operate on all writs except the
questions involved in the suit. In such a writ of Habeas Corpus - Daryao Vs
case, no relief is sought against him, a State of U.P.
finding does not operate as res judicata in 2. R.J. will be applicable on
a subsequent suit against him. representative suit also- Explanation
Same title - The 3rd condition of res VI, Sec.11
judicata is that the parties to the 3. R.J. will operate on PIL also- forward
subsequent suit must have litigated under construction company v/s Prabhat
the same title as in the former suit. Same Mandal
title means same capacity. The demand 4. R.J. will be applicable on ex-parte
should be of the sance quality. decree also provided it should be n
Where the right claimed in both the merit.
suits is the same, the subsequent suit is 5. R.J. would be applicable on execution
sought to be established on a ground decree also [Link], Sec.11
different from the one in the former suit. 6. R.J. will not be applicable on
Illustration - compromise decree because it is not
(a) A sues B for title tot he property as an on merits.
heir of C under the customary Law. 7. R.J. is not applicable on withdrawal of
The suit is dismissed. The subsequent suit.
suit for title to the property as an heir 8. R.J. is applicable on interlocutory
of C under the personal law is barred. orders (maintainability) of suit,
(b) A sues for possession of math jurisdiction of suti, etc.
property as on heir of Mahant. The Difference b/w R.J. and Estoppel -
suit is dismissed. A subsequent suit The doctrine of R.J. is often
by A against B as the manager of the treated as a branch of the law of estoppel.
match is not barred. R.J. is really estoppel by verdict or
estoppel by judgment (record). The rule of
constructive R.J. is nothing else but a rule denying what he has once called the
of estoppel. But still there are certain truth.
differences b/w them- 7. While R.J. binds both the parties to a
1. The provisions relating to R.J. is given litigation, estoppel binds only that
U/s-11 CPC and is procedural in party who made representation.
nature while the provisions relating to
estoppel is given U/s-115 IEA and is Res Judicata and constructive Res
substantive in nature. Judicata will apply on all writs except
2. R.J. results from a decision of the writ of habeas corpus held in –
Court, whereas estoppel flows from
the act of parties.
1- Daryoo Singh V/S state of U.P.
3. The rule of R.J. is based on public
AIR 1961 S. C.
policy that there should be an end to
litigation. Estoppel on the other hand,
proceeds upon the doctrine of equity
2- G. K. Dudani V/S S. D. sharma A.

that he who, by his conduct, has I. R. 1986 S. C.

induced another to alter his position to
his disadvantages, cann't turn round 3- Devi Lal Modi V/S Sales Tax
and take advantage of such alteration officer A.I.R. 1965 S. C .
of the other's position.
In other words, while R.J. bars Whether Res judicata applicable
multiplicity of suits, estoppel prevents
on point of law
multiplicity of representations.
4. R.J. ousts the jurisdiction of a court to
Principal of Res Judicata and Estoppel
try a case and precludes an enquiry at
will not apply on pure question of law
the threshold, estoppel is only a rule of
evidence and shuts the mouth of a because if court erroneously decided a

party. case then subsequent higher court can

5. R.J. prohibits a man averring correct this decision Mathura Prasad v/s
(speaking) the same thing twice in Sarjoo Jaiswal Air 1971 SC where the
successive litigations. while estoppel decision is on a pure question of law then a
prevents him from saying one things court cannot be precluded from deciding
at one time and the opposite at such question of law differently. Such bar
another.
cannot be invoked power of the court to or
6. The rule of R.J. presumes
estoppel can impede powers of the court to
conclusively the truth of the decision in
determine an issue of law correctly in a
the former suit, while the rule of
subsequent suit which relates to another
estoppel prevents a party from
property found upon a different cause of
action through parties may be same. Section 12 -
This section bars further suit on same
Satyendra Kumar and other v/s Raj cause of action which has been
Nath Dubey and Other 2014 SC precluded by this court .i. e.
(1) 0rder 2 rule 2,
Principles of Res Judicata (2) 0rde 9, rule 9
applicable to Arbitration proceeding (3) 0rder 22 rule 9,
also. (4) 0rder 23 rule 1.

UNION OF INDIA V/S

VIDEOCON INDUSTRES LED. Difference between R.J. & R. S.J.
1. The provisions relating to R.S.J. is
given U/s-10, while the provision
DELHI HIGH COURT granted Anti
relating to R.J. is given U/s-11 CPC.
suit injunction in favors of union of
2. R.J. applies to a matter already
India (plaintiff) passing an order of
adjudicated upon/decided while R.S.J.
perpetual injunction restraining the
applies to a matter pending trial (Sub-
defendant from presenting claim Judice).
before commercial court in Landon. 3. The principle of R.J. bars the trial of a
The court held that re– institution of suit or an issue which has been
proceeding before the London courts decided in a former suit, while R.S.J.
was oppressive and abuse of the stays trial of a suit which is pending
process of law and in violation of decision in a previously instituted suit.

principal of Res judicata and issue 4. If a proceeding is pending in a foreign

Court then as per section 10's Exp.
estoppel.
Courts are not bound by such
pendency i.e. rule of R.S.J. will not be
Issue estoppel:- Suppose there are five
applicable, whereas if the matter
issues between A and B has been
which has been already decided by a
settled by court after B has again file a competent foreign Court as per the
suit against A consisting of five provisions of Sec.13 and 14, that
previous settled issues and some more decisions are applicable on Indian
new issues now because IInd suit Courts also.
involves new issue, estoppels apply on Difference b/w R.J. & Order II, Rule-2

five settled issues and they are not 1. Plaintiff has to claim all his relief in his

tried again. suit, if he left any claim he is not

entitled to file a fresh suit whereas
 R.J. is applicable on issues already such presumption may be displaced by
decided. proving want of jurisdiction.
2. Order-II, R-2 is applicable only on How F.J. can be enforceable in India - A
plaintiff whereas R.J. is applicable to foreign judgment which is conclusive U/s-
both plaintiff and defendant. 13 can be enforced in India in the
following ways -
Sections 13 & 14 1. By instituting a suit on such foreign
Definition of Foreign Judgment - judgment, or
Sec.2(6) provides that the term foreign 2. By instituting execution proceedings.
judgment means the judgment of a foreign Foreign Award - An award passed by a
court. foreign arbitrator and enforceable in the
When foreign judgment not conclusive - country where it was made, can be
According to Sec-13 CPC, a enforced in India like foreign judgments.
foreign judgment is conclusive as to any  If any party wants to challenge the
matter decided b/w the same parties or validity of foreign judgement
b/w parties under whom they or any of section 86 of evidence act
them claim litigating under the same title, provides that it must be challenged
and well operate as res-judicata b/w the in a court where suit is pending i.e.
parties except in the cases mentioned in the trial court.
the Section itself. Place of suing
In following 6 cases, a foreign (Sr-15-20)
judgment shall not be conclusive & Pecuniary Jurisdiction- Sec.15 provides
operate as R.J.- that every suit shall is instituted in a Court
1. F.J. not by a competent court; of the lowest grade competent to try it. for
2. F.J. not, on merits; eg- In a court of Civil Judge (Senior
3. F.J. against International or Indian Division) or in a Court of Civil Judge (J.D.)
Law; Territorial Jurisdiction - For the purpose of
4. F.J. against the principle of natural territorial jurisdiction of a Court, suits may
jusitce; be devided into following classes.
5. F.J. obtained by fraud; (A) Suits in respect of immovable property
6. F.J. founded on breach of Indian Law. (Sr.16-18)
Presumption as to conclusiveness of (i) Sec.16 - Suits for recovery or partition
F.J. - Sec.14 of CPC declares that the etc. of immovable property lies where the
Court shall presume, upon the production subject matter situate.
of certified copy of judgment, that such (ii) Sec.17 - When subject-matter of suit
judgment was pronounced by a Court of situates in different jurisdiction of Court,
competent jurisdiction, unless the contrary suit can be filed in either Court where any
appears on the records, or is proved. But part of such property situate.
(iii) Sec.18- Where it is uncertain that in Kanpur and has illegally in possession
which court suit relating to immovable of A’s land in Lucknow now A can file
property lie, suit may be filed in any court a suit for recovery of possession and
in which such uncertainty exist but the
compensation either in Lucknow
court which entertained such suit shall
where property is situate or Kanpur
write down the reason regarding such
where defendant is reside .
uncertainty.
(B) Suit in respect of damage to movable
property or torts - Sec.19 provides that
Sec. 16

suit for damage/wrong to movable Suppose A and B are the brothers

property or any person lies-in any of the living in Lucknow and their father’s
following courts - property situated in Kanpur and Agra
(i) where cause of action has arises, or A wants to file a suit of partition it will
(ii) where defendant resides (at the time of be either in Kanpur or Agra.
institution of suit)
(iii) where defendant carries on bustress
Sec . 19
or words for gain.
Cause of Action:-
Illustration - A residing in Delhi, beats B in
Calcutta. B may sue A either in Calcutta or
1:- In case of contract where contract
in Delhi. An if A carries on his business in
Lucknow, B may sue in Lucknow also. has been formed where it has

(C) Other suits relating to movable performed and where defendant makes
property which are not covered by Sec.19- its breach.
(Breach of contract etc.) Example- Where contract enters into
Section 16 proviso Lucknow for purchase of goods and
delivery of property in Kanpur and B
Suit for compensation to wrong to agreed to pay money in Agra now in
immovable property in possession of case of non payment suit either file in
defendant. This proviso is passed on Lucknow or Kanpur or Agra.
‘’Equity act in personam’’ if defendant
causes damage to certain immovable 2:- In case of defamation where
property then plaintiff can file suit for defamatory letter written and posted
compensation where property situate and where it has been relieved both are
or where defendant reside or place of suing.
voluntarily works for again example
suppose A is resident of Delhi and has 3:- Where business man of Calcutta
property in Lucknow B is residing in Appointed his agent in Chennai. Now
 such business man has expelled / together at Banaras, B and C jointly make
removed such agent through letter suit a promissory note and deliver it to A.

filed by agent either in Chennai or in Here A may sue B and C at

Banaras where cause of action arose. He
Calcutta for compensation.
may also sue them at Calcutta, where B
Suppose head office in
resides or Delhi where C resides: but in
Delhi and employ working in Lucknow
such cases plaintiff has to take permission
suspension order issued by head office
from court or from B or from C.
Delhi and received in Lucknow here
employ can file writ petition either in TRANSFER & WITHDRAWL
Delhi or Lucknow high court and B are Ss-22-25
the C. A. of Banglore send through Transfer and withdrawal of suits, appeals
registered post registration application and other proceedings -
in Delhi Chartered Accountant Sections-22 and 23 enable a

institute. Delhi institute rejected this defendant to apply for transfer of a Suit
while Ss- 24 and 25 empowers certain
application and return it through post
courts to transfer any suit, appeal or other
here such C. A. can file suit in Indore
proceedings either on an application made
or Delhi.
by any party or by the court suo motu.
Who may apply : Sec.22
According to Sec.20, these type of
Sec. 22 deals with the right of a
suit can be filed-
defendant to apply for the transfer of a
(i) Where defendant resides, it there are
suit. It provides that where the plaintiff has
more than defendant, where one of them
the choice of two or more Courts and
resides.
institutes the suit in one of such courts,
(ii) Where defendant works for gain, if
any defendant after notice to the other
there are more than one defendant, where
party/side, may at the earliest opportunity
one of them works for gain:
apply to a Court to have the suit
Provided, if the suit has been filed
transferred from the court in which it is
a place where one or more defendants
filed to another Court.
does not reside or work for gain, then
Conditions - (1) Where issues are settled,
such suit can be filed-
at or before the settlement of issues, and
(a) with the consent of the court, or
(2) Notice must be given to other side.
(b) with the consent of such defendant
After considering the objections (if
who has not reside/work there.
any) of other party the court to which
(iii) where cause of action, wholly or in
application is made, shall determine in
part arises.
which of the several courts having
Illustration - A resides at Simla, B at
jurisdiction the suit shall proceed.
Calcutta and C at Delhi, A, B and C being
To which court application lies - Sec-23
1. Where several courts having (iii) retransfer the same for trial or
jurisdiction are subordinate to the disposal to the court from
same appellate Court (D.J/H.C.), an which it was with drawn.
application for transfer can be made to * A suit or proceeding may be transferred
that appellate Court. U/s-24 from a Court which has no
2. Where such courts are subordinate to jurisdiction to try it.
the same H.C. the application can be Power of S.C. - Sec.25
made to that H.C. On the application of any party and
3. Where such Courts are subordinate to after hearing the parties the S.C. may, at
different High Courts, an application any stage, if satisfied that an order under
can be made to the H.C. within the this section is expedient for the ends of
local limits of whose jurisdiction, the justice, direct that any suit, appeal or other
Court in which suit is instituted, proceeding be transferred from a H.C. or
situate. other Civil Court in one State to a H.C. or
4. S.C. has inherent power and may other Civil Court in any other State.
transfer any suit, appeal or other INSTITUTION OF SUITS
proceedings from one H.C. to another SEC.26
H.C., or from one Civil Court in the This section says that every suit
State to another Civil Court in any shall be instituted by the presentation of a
other State-Sec.25. plaint or in such other manner as may be
General Power of transfer etc. of DJ or prescribed.
H.C.- Sec.24 : On the application of any of Sub. Sec.(2) has been added in
parties and after notice to other side or of 2002 which provides that in every plaint,
its motion without such notice, the H.C. or facts shall be proved by affidavit.
the D.J. Court may at any stage. Summons to defendant
(a) Transfer any suit, appeal or other Sec.27
proceeding pending before it for trial It provides that when a suit has
to any Court subordinate to it been duly filed by presentation of a plaint
competent to try the same. the court must issue summons to the
(b) Withdraw any suit, appeal or other defendant calling upon him to appeal on a
proceeding pending in any Court day specified therein and answer the
subordinate to it, and- claim of the plaintiff within 30 days from
(i) try or dispose of the same the institution of suit.
(ii) transfer the same for trial or Power to order discovery & the like
disposal to any court Sec.30
subordinate to it competent to The court may at any time, either
try or dispose the same. of its motion or on the application of any
party-
(a) Make such order in all matters relating Sec.34 says that where the decree is for
to the delivery and answering of the payment of money, the Court may
interrogatories, the admission of award interest on principal sum of money
documents& facts and the discovery not exceeding 6% per annum from date of
etc. of documents. institution of suit to a date of decree.
(b) issue summons to person whose The Proviso of the section says that the
attendance is required either to give where the ............is of commercial
evidence or to produce document. transaction, the rate of interest may
(c) order any fact to be proved by exceed 6% per annum, but shall not
affidavit. exceed the contractual rate of interest or
Method to compel attendance of where there is no contractual rate, the rate
witness for whose appearance of which moneys are lent or advanced by
summons U/s-30 has been issued- the Nationalised Banks in relation to the
Sec-32, following are the methods- Commercial transaction.
1. issue a warrant for his arrest; Costs
2. attach and sell his property; Qns.- What are the provisions in CPC
3. impose a fine upon him not exceeding relating to costs?
5000/- Ans. Law relating to costs - Ss. -35, 35-A,
4. order him to furnish security for his 35-B; O-20-A
appearance and in default commit him The code provides for the following
to civil prision. kinds of costs -
JUDGMENT AND DECREE 1- General Costs - Sec.35 -
(Sec.33) General costs is the expenses
Order XX, Rule-1, provides that after the incurred in litigation court may award it to
hearing is completed the court will a party.
pronounce judgment in open court, either 2- Miscellaneous costs - Order 20A-
at once or on some future day, after giving Order 10 A makes specific provision
due notice to the parties, or i.e. within 30 with regard to the power of Court to
days from such hearing and in exceptional award costs in respect of certain
circumstances if it is not practicable to expenses incurred in giving notice,
pronounced judgment in such time period, typing charges, inspection of records
the Court may pronounce ju. In 60 days obtaining copies and producing
from completion of hearing. witnesses.
Order XX, R-6A, Decree must be 3- Compensatory costs - Sec.35A- If the
prepared within 15 days from date of Court is satisfied that the litigation was
pronouncement of judgment. inspired by vexations motive and was
Sec.34 altogether groundloss, it can award
Interest on Decree compensatory costs. The max. amount
which can be awarded is Rs.3000/-
4- Costs for causing delay- Sec.35B - 2. if judgment debtor has property in
This section empowers the court to such jurisdiction.
impose compensatory costs on any 3. If the decree directs the sale or
party who are responsible for causing delivery of immovable property situate
delay at any stage of the litigation. within that court's local area.
Execution (0-XXI) 4. if the court considers any other reason
Execution related Order-XXI is the to do so.
biggest order in C.P.C. which contains Sub Section (4) of Sec.39 provides that
106 Rules in it. the Court passing the decree has no
Qns. Who may apply for execution of power to execute such decree against a
decree - O-XXI, R-10 person or property outside the local limits
Ans. Following person can apply for of its territorial jurisdiction.
execution.............  Order 21 Rule 18 –Cross Decree
1. The decree holder
2. The legal representative of d.h., if d.h. Section -46
is dead. (Precepts) vkKki=
3. Any person claiming under the d.h. 1. Upon the application of the decree
4. The transferee of decree (decree is holder the court which passed the
transferable) decree may issue a precept to any
5. Any one or more of the joint decree other court which would be competent
holders. to execute such decree to attach any
Against property belonging to judgment debtor
1- Judgment debtor and specified in the property.
2- Legal representative of J.D. if dead. 2. The court to which the precept is sent
Court by which decree may be executed - shall proceed to attach the property
Sec.38 - specified in the precept.
A decree may be executed either Provide that the attachment under
by the court which passed it, or by the a precept shall continue for two
Court to which it is sent for execution. months. In two cases it can be
Transfer of Decree Sec-39 - extended beyond the period of two
On the application of the decree months-
holder the court which passed the decree (i) if the court which issued the
may transfer the decree to another court precept has extended the time
for its execution on following grounds- period, or
1. if the judgment debtor actually and (ii) if the decree is transferred to
voluntarily resides or carries on the court to which precept was
business or works for gain within the sent for attachment of property
local limit of the jurisdiction of such and the decree holder has
other court.
 applied for the sale of such dead person and his Legal
property. Representative has not been substituted
Sec.47 is a, sufficient ground for Executing
Qns. What questions to be determined by
Court to declare such decree as void.
the executing court?
Ans. All questions regarding the execution
(2) Where decree is uncertain and
of decree shall be determined /solved by
ambiguous .
that executing court and [Link] suit shall
be filed on that matter. (Similar to principle
of Res Judicata). But the executing court (3) Where decree is passed by such a
can not go behind the decree it means it court which has no jurisdiction to
cannot examine the rollidity of decree. try that case.
Exclusion of Jurisdiction:- In case of Krian Singh V/S
------------------------------------- Chaman Paswan S.C. 1954.
If a suit can be file more then one place Supreme Court held that a decree
party by agreement confined passed by court without
Jurisdiction to one place and another jurisdiction can be objected at any
but this exclusion clause contain word proceeding (in execution also)
only for example where party has because such defect lies (on roots)
agreed that in case of dispute suit shall of the case.
be file in Lucknow only then suit will
be file in Lucknow only and no other (4) Where two courts has passed two
place. opposite decrees on the same
matter then it has been hold that the
Section 47 :- previous decree is valid and
Executing court cannot examine the enforceable and later decree is
validity of decree. barred by Res Judicata, hence void.
Topan Mal V/s Kundomal
Gangaram (S. C.). KARMKAR COCHIN TRASPORT
Exception:- In following case Ltd. V/S UNION OF INDIA
Executing Court examine validity of
decree . Sec.51
Power of executing court-
The court may on the application
(1) Where decree is null and void.
of the decree holder, order the execution
Example:- Where Judgement debtor
of the decree-
object that decree is passed against
(a) by delivery of any property specifically Sec.55 provides that a judgment debtor
decreed; may be arrested in execution of a decree
(b) by attachment and sale or by sale and brought before the court, and his
without attachment of any property. detention may be in civil prison of the
(c) by arrest and detention in prision as district.
per Sec.58
Sec.56 : Prohibition of arrest or detention
(d) by appointing a receiver on property
of woman- The Court shall not order the
of j.d.
arrest or detention in civil prison of a
(e) in such other manner as the nature of
woman in ex. of a decree for the payment
relief ground may require.
of money.
Sec.49
Transferee Sec.58 : Detention and release - Every
Sec.49 says that every transferee person detained in the civil prison in
of a decree shall hold the same subject to execution of a decree shall be so
the equities which the judgment debtor detained-
might have enforced against the original
decree holder. Value of decreed max. detention
money
Equities of judgment debtor - Where the
judgment debtor already won the case (a) If decreed Not exceeding 3
against the present decree-holder he is money is more months
entitled to recover any sum won from the than five
transferee of decree. thousand
Sec.50 rupees.
Legal representative
(b) If money is Not exceeding 6
When the judgment debtor dies
more than 2 rises
before the decree has been fully satisfied,
thousand but
the decree holder may apply to the court
not more than 5
which passed it to execute the same
thousand Rs.
against the legal representative of the
deceased. (c) if decreed
No detention
The legal representative shall be money is upto
liable only to the extent of the property of 2000 Rs. or
the deceased which has come to his less than
hands and has not been duly disposed of. Rs.2000

(55-59)

Arrest and detention Sec.59 : Release on ground of illness- In a

case S.C. held that if any person is liable
to pay any sum of money and in good faith Property which can not be attached-
he has no money, It shall not be detained According to the proviso of Sec.60(1), the
in custody for any time. following particulars shall not be liable to
Garnishee order : O-XXI, R-46A-461 such attachment or sale-
Garnishee means a judgment (a) the necessary wearing apparel,
debtor's debtor. He is a person who is cooking vessels, beds and bedding of
liable to pay a debt to a judgment debtor J.D., his wife and children and such
or to deliver any movable property to him. personal ornaments as in accordance
A garnishee order is an order with religious usages, cannot be
passed by a Court ordering a garnishee parted with by any woman;
not to pay money to judgment debtor (b) tools of artisans, and where j.d. is an
because the later is indebted to the agriculturist, his implements of
garnisher or because the later is indebted husbandry and such cattle and seed
to decree holder. grain as may be necessary to enable
for eg: If there is a suit b/w A and B. A is him to earn his livelihood and such
the winner and B is the loser. If B has lent portion of agri produce which have
money to C who is liable to repay to it to B been declared to be free from liability.
then C is called judgment debtor's debtor (c) houses and other building (with
i.e. Garnishee. materials & sites thereof and the land
Here A may apply in Court to make immediately appartenant thereto and
a garnishee order in his favour because B necessary for their enjoyment)
has no money at the present time but lent belonging to an agriculturist, or a
to C, the court may order that C will pay labourer, or a domestic servant and
money not to B but to A. occupied by him.
Sec.60 (d) books of account;
Property which can be attached - (e) a were right to sue for damage.
Sec.60(1) provides that the (f) any right of personal services, i.e. to
following property is liable to attachment be Gulaam.
and sale in execution of a decree, namely- (g) Stipdends and gratuities allowed to
Lands, houses or other building, pensioners of the Govt.
goods, money, bank notes, cheques, bills (h) the wages of labourers and domestic
of exchange, hundies, promissory notes, servants.
Govt. securities, bonds or other securities (i) salary to the extent of first one
for money, debts shares in corporation thousand rupees and two third of the
and all other sateable property, movable remainder in execution of any decree
or immovable (except hereinafter other than a decree for maintenance-
mentioned) belonging to the judgment for eg.- Where a person getting salary
debtor. of Rs.7000 p.m. and the attachment is
not for decree for maintenance then,
 according to proviso of Sec.60(1), the special order published in O.G. declare
following shall not be attached - that any portion of agr. produce shall be
first - 1000 Rs., i.e.-17000-1000=6000 exempted from attachment.
1/3 of remaining salary, i.e. Sale : 0-XXI, R-92
6000x2/3=4000 Sec.65:- Purchaser's title -
= 4000+1000=5000 Rs. This section provides that where
Hence, max part of salary which can immovable property is sold in execution of
be attached is Rs.2000/- a decree and such sale has become
(ia) one third of salary in exe. of any absolute the property shall be deemed to
decree for maintenance it means 2/3 have vested in the purchaser from the
of salary can be attached in exe. of time when the property is sold and not
maintenance decree. from the time when the sale become
for eg. - If a person getting Rs.6000/- absolute.
per month. It is to be noted here that the sale
A/c to (ia) of proviso of Sec.60(1), 1/3 is deemed to be absolute when after a
of 6000 [Link] not be attached, ie. due public notice no one had claimed on
1/3x6000=2000 and remaining 6000- such property.
2000=4000 can be attached. Distribution of assets
(j) the pay and allowances of persons Sec.73 : Rateable, distribution of proceeds
belonging to defence. of ex. of sale among decree-holders.
(k) all deposits in provident find and It provides that where the assets
public provident fund. are held by a Court and before the receipt
(l) all moneys payable under a policy of of such assets, several decree-holders
Life Insurance. have applied to the court for execution for
(m) any allowance farming part of a decree for payment of money against
emoluments of any servant of Govt. the same j.d., the assets, after deducting
(n) an expectancy of succession of the costs of realization, shall be reteably
survivorship or merely contingent or distributed among them.
possible right or interest. for eg. : A obtains a decree against J. for
(o) a right to future maintenance. Rs.5000 and applies in Court for ex. of his
(p) any allowance declared by Indian Law decree by attachment and sale of J.S.
to be exempt. proprty. B also obtains a decree aginst J.
(q) where j.d. is liable for payment of land for Rs.10000 and applies for his
revenue any movable property which, execution. The property is sold by Court in
by law applicable, is exempt from sale Rs.7500 only. Under this sec the said
for the recovery of an arrear of such amount 7500 shall be rateably distributed
revenue. b/w them i.e. A=2500, B=5000.
Sec.611 :- Partial exemption of agricultural Issue of Commission (0-XXVI)
produce- The State [Link] by gen. or
 Sec.75 : Power of Court to issue (1) It provides that no suit shall be
Commissions
instituted against the Govt. or against the
The court may issue a commission
Public Officer in respect of any act
for the following purposes-
purporting to be done in his official
(a) to examine any person - [R-1-8]
capacity, until the expiration of two months
(b) to make local investigation- [R-9 & 10]
next after notice in writing, stating the
(c) to hold scientific, technical or expert
cause of action, the name, description and
investigation - [R-10A]
place of residence of the plaintiff and the
(d) to perform any ministerial/clerks act-
relief which he claims, has been delivered
[R-10B]
to or left at the office of -
(e) to conduct sale of property which is
(a) in case of Central Govt. except where
subject to speedy and natural decay
it relates to a Railway, a Secretary to that
and which is in the custody of Court
Government.
pending the determination of suit - [R-
(b) in case of Central govt. where it relates
10C]
to the Railways the General Manager to
(f) to examine and adjust the accounts -
that Railway.
[R-11 & 12]
(bb) in case of the State of Jammu &
(g) to make partitions - [R-13 & 14]
Kashmir, the Chief Secretary to that Govt.
Sec. 76 : Commissions to another Court:
(c) in case of other state Government, a
Under this Sec. commissions may
Secretary to that Govt. or Collector of the
be issued to another Court (State) which
Distt.
shall proceed further.
(d) in case of the Public Officer, to him or
Sec.77 : Letter of request - In lien of
at his office.
issuing a commission the Court may issue
And the plaint shall contain a
a letter of request to examine a witness
statement that such notice has been so
residing at any place out side India.
delivered or left.
Suits by or against Govt. of Public
Officer (2) Subsection (2) provides that if the suit
Sections - 79-82, Order-27
is to obtain an urgent or immediate relief
Sec.79: Suits by or against Govt.-
against the Govt. a person can file it
In a suit by or against the Govt.,
without serving such prior notice with the
the suit must be filed in the name of-
leave of the Court.
(i) in case of the Central Govt., the Union
Sec.83 : When alians may sue -
of India, and
Alien enemies residing in India
(ii) in case of the State Govt., the State.
with the permission of Central Govt., and
It is to be noted here that the
alien frinds, may sue in obey Court
above authorities (UOI and the State) are
competent to try the suit, as if they were
held to be legal person. Art. 300
citizens of India.
Constitution also says like this.
But alien enemies residing in India
Sec.80 : Notice :
without such permission or residing in a
foreign country, shall not sue in any such Provided that the where any suit is
Court. already pending in a Court in which the
Sec.84:- When foreign State may sue - rights of all the parties can property be
A foreign State may sue in any decided, no such suit, of interpleader can
competent Court, that such suit is for the be instituted.
enforcement of private right vested in the The detail provisions of
ruler of that State or in any Officer of such interpleader suit is given U/o-33.
State in his public capacity. Sec.89, Order-10
A ruler of a foreign State may sue Alternative Dispute Resolution System-
in the name of his State. Likewise, a Ruler Sec.89 : Settlement of disputes outside
of a foreign State may be sued in the the Court-
name of his state. Sec.89 is added by CPC
Interpleader 0-35 (Amendment) Act, 2002. The main object
Sec.88 : Where interpleader suit may be of this Section or S & D R system is to
instituted - To interplead means to litigate reduce the pendency of suits in Civil Court
with each other to settle a point and to create alternative forum to
concerning a 3rd party. Interpleader suit compromise the disputes.
means pleading between defendants. In case of -
An interpleader suit is a suit in Salem Advocate Bar Association
which the real dispute is not between a Vs
plaintiff and a defendant but between the State of Tamil Nadu
defendants who interpleader against each the S.C. declared this Sec.89 as
other, unlike an ordinary suit. constitutionally valid.
Sec.88 provides that where two or Sec.89 provides that where it
more persons claim adversely to one appears to the Court that there exist
another the same debt sum of money or elements of settlement which may be
other property from another person who acceptable to the parties, the Court shall
claims no interest their in other than for formulate the terms of settlement and give
charges or costs and who is ready to pay them to the parties for their observations
or deliver it to a rightful claimant, may file and after receiving the observations of the
an interpleader suit against all the parties, the court may reformulate the
claimants for the purposes of a decision terms of possible settlement and refer the
that to whom the payment or delivery shall same to any of the following forums for
be made and of obtaining indemnity for settlement of dispute outside the court.
himself. 1. Arbitrator or Conciliator - When
The court may suspend the plaintiff matter is sent for its disposal to the
and order the defendants to prove their Arbitrator or Conciliator, the provisions of
title. Arbitration and Conciliation Act, 1996, will
apply.
2. Lok Adalat - The matter can be by reason of such public nuisance or other
referred to Lok Adalat in accordance with wrongful act.
provisons of Sec.20(1) of the Legal Sec.94
Services Authorities Act, 1987. Supplemental Proceedings
3. for Judicial Settlement - The Court The function of the court is to do justice for
can refer the matter for judicial settlement this purpose it issues order, decree etc. If
to suitable institutions or person and such any party to a suit wants to defeat or delay
institution or person shall be deemed to be a decree, C.P.C. has empowered the
Lok Adalat and all the provisions of Legal Courts to issue certain interlocutory orders
Services Authorities Act, 1987 will apply. or injunctions to prevent failure of justice.
4. for mediation - The Court shall effect Sec.94, 95, Orders -38 and 39 and
the compromise between the parties and 40 and CPC provide this power of Court.
shall follow such procedure as may be These proceedings are called
prescribed. "Supplemental proceedings".
Sec.91 : Public Nuisances Sec.94 provides the following
Q. What are the remedies available kinds of supplementary proceedings-
against public nuisance? (1) Arrest before judgment [0-38, R-1-4]
Ans. The following remedies/relief are (2) Attachment before judgment [0-38, R-
available against p.n.- 5-13]
(1) Criminal complaint U/Ss-268, 290, 291 (3) Temporary injunction [0-39, R-1-4]
etc. I.P.C. (4) Issuing interlocutory orders [0-39, R-5-
(2) Applicant to Ex. Magistrate for removal 9]
of such nuisance U/Ss-133 and 144 (5) Appointment of receivers [0-40]
Cr.P.C. Sec.-95
(3) Suit for damages under Law of Torts. Sec.95 provides for compensation
(4) Suit for injunction U/s-91 CPC. in case of arrest, attachment or injunction
Suit for injunction to remove p.n. under preceding sec. on insufficient
Sec.91 provides that in the case of ground. It provides that on the application
a public nuisance or other wrongful act of defendant, the Court may award
affecting, or likely to affect, the public, a compensation against plaintiff not
suit for a declaration and injunction may exceeding 50,000 Rs.
be instituted. Grounds for Compensation U/s-95
Such suit may be instituted either 1. Arrest, attachment etc. on insufficient
by the grounds or
(a) Advocate General, or 2. where plaintiff fails and them was no
(b) with the leave of the court by two or reasonable grounds for instituting the
more persons, even though no special case.
damage has been caused to such persons APPEALS
Sections - 96-112, Orders - 41-45
Meaning - The expression "appeal" has the value Rs.10,000 (ten thousand),
not been defined in the code, but it may no appeal lie against that decree,
be defined as" the judicial examination except on a question of law.
(correction) of the decision by a higher 3. Sec.97, When no appeal has been
court of decision of an inferior court. filed against a preliminary decree then
In other words it is a complaint no appeal lie against the final decree.
made to the higher court that the decree 4. Sec.99, No decree can be ground of
passed by the lower court is unsound and misjoinder of parties or cause action
wrong. unless it adversely affects the merit of
Right of appeal - The right of appeal is case or jurisdiction.
not an inherent right. It is creature of 5. Sec.99A, No order of executing Court
statute and there is no right of appeal passed U/s-47 can be modified in
unless it is provided expressly by the appeal unless it prejudicially affected
statute. the decision of case.
KINDS OF APPEALS CROSS OBJECTION (O-41, R-22)
1. First appeals:Ss-96-99A, 107 and 0- When the suit is partly decided in favour of
41 plaintiff and partly in favour of the
2. Second appeal, section 100-103, 107, defendant and the aggrieved party (either
108 and 0-42 plaintiff or defendant) files an appeal the
3. Appeals from orders, Sections 104- opposite party may adopt any of the
108 and 0-43. following sources-
4. Appeals by indigent persons:Order-44 (1) He may also file on appeal from part of
5. Appeals to S.C.:Ss 109, 112 and 0-45 decree which is against him, it is known as
First Appeal : 0-41 cross-appeal. Here both appeals will be
Sections 96 to 99A enact the substantive disposed of together.
law as regards first appeal, while order-41 (2) If he has not filed a cross-appeal within
lays down the procedure relating thereto. the limited period, he may file cross-
When first appeal may lie - objections from part of the decree which is
1. Sec.96(1), First appeal may lie from not in his favour. Cross-objection must be
every passed by Court of original filed within one month from the date of
jurisdiction. receiving notice of appeal.
2. Sec.96(2), First appeal may lie against (3) Without filing cross appeal/objection he
a decree passed in ex-parte may support a decree.
proceedings.
When first appeal may not lie -
1. Sec.96(3), No appeal lie against SECOND APPEAL
consent compromise decree. Sections 100-103, 107-108 and Order-42
2. Sec.96(4), If small causes Court has deal with second appeal.
passed a decree on subject-matter of
First appeal may lie on grounds of  Fact of Res Judicata cannot be
objective as to facts or of law or mixed raised first time in second appeal
question of facts and law. But second i.e. it must be raised in first appeal.
appeal shall lie only on the question of
Law and not on question of facts or mixed
In Durga Chandharani V/S Jawaher
question of facts and law. Thus second
Singh 1891 P.C.
appeal may lie in H.C. only on the ground
of a substantial question of law and not on
any other grounds U/s-100.
Privy Council held that second appeal

When 2nd appeal may lie- cannot be raised on error of fact how it
wrong may be that it second appeal on
(1) Sec-100(1), when a decree passed in question of law only.
first appeal by any court subordinate to This judgment of Privy Council
the H.C. if the H.C. is satisfied that the has been followed by Supreme Court
case involves a substantial question of in Pattabhirama Swami V/S
Law.
Hanumayiya A I R 1959.
(2) Sec-100(2), when the appellate decree
is passed in ex-parte proceedings.
Substantial question of Law
When 2nd appeal may not lie-
-------------------------------------
(1) Sec-100A, - No second appeal will lie
in the H.C. (Division Bench), where first Calcutta High Court in

appeal is heard by a Single Judge of a Ratan Lal Vanshi Lal V/S Kishori
H.C. Lal Goyanka A I R 1993 col.
(2) Sec.101 - No second appeal will lie on
any ground other than a substantial Held following are Substantial
question of Law. Question of Law:-
(3) Sec.102, - No second appeal will lie on
a matter where subject-matter of original
(1) Where the finding of subordinate
decree is for recovery of money not
court is not logical or error in
exceeding Rs.25000/-
collection and appreciation of
APPEAL
evidence.

 First appeal can be made on

(2) Wrong application of Law.
grounds of law or facts or both but
Second Appeal can preferred on (3) Where conclusion of court not
only question of law. This is why based on evidence.
grounds of first appeal is broader
them second appeal.
(4) Such question of law which or the general principles to be applied
affects the rights of parties. in determining the question are well
settled and there is a mere question of
(5) Where mix question of fact and
applying those principles or that the
law effects the substantial rights
plea raised is palpably absurd, the
of parties.
question would not be a substantial
question of Law.
(6) Placing onus of proof on wrong
parties.

(7) Question on interpretation of APPEAL FROM ORDERS

document is also a Substantial Ss-104-108 and Order-43 deal with

appeals from orders. They state that
Question of Law held by Supreme
certain order appealable. No appeal lies
Court in Shanta Kumari V/S
against other orders.
Laxmi Amma Janki Amma A.
An appeal shall lie from the following
I. R 2000 S. C.
orders under the provisions of Sec.104
Though the expression substantial and Order-43.
question of law has not been defined (1) An order Us/-35A awarding
in the code, in the case of Chunni Lal compensatory costs in respect of false or
Mehta V/S Century Spinning and vexations claim or defence.
Manufacturing Co. Ltd. A.I.R. 1962 (2) An order U/s-91 or 92 refusing to grant
S.C. leave to institute a suit against public

The Supreme Court observed “The nuisance or breach of trust.

(3) An order U/s-95 awarding
proper test for determining whether a
compensation for obtaining arrest,
question of law raised in the case is
attachment etc. on insufficient grounds.
substantial would, in our opinion, be
(4) An order rejecting an application to set
whether it is of general public
aside dismissal of a suit for default or to
importance or whether it directly and set-aside an ex-parte decree.
substantially affects the rights of the APPEALS TO S.C.
parties and if so, whether it is either an Under C.P.C. - Ss-109 and 112 with
open question in the sense that it is not Order-45 deal with appeals to Supreme
finally settled by this court or by the Court.

privy council or by the federal court or Sec.109 provides that an appeal to

is not free from difficulty or calls for S.C. can be filed against any judgment,
decree or final order of a H.C., if the H.C.
discussion of alternative views. If the
certified that-
question is settled by the highest court
(1) the case involves a substantial Jurisdictional facts
question of law of general importance; and Limitation period
(2) in the opinion of H.C., the said Reference (Sec 113, 0-46)
question needs to be decided by the S.C. Reference to High Court : The object of
Sec.112 saves the power of S.C. Sec.113 is to enable a subordinate court
to grant SLP Under Article 136. to obtain in non-appealable case, the
Under Constitution - The provisions of opinion of H.C. on any question as to the
Articles-132, 133 and 134A of the validity of any Act, Ordinance for
Constitution deal with appeals to S.C. with Regulation.
regard to Civil matters. According to Sec.113 where the
Artcile-133 that an appeal to S.C. trial Court is satisfied that a case pending
can be filed against any judgment, decree before it involves a question as tot he
or final order in a Civil proceeding of a validity of any Act. Ordinance etc. the
H.C., if the H.C. certifies under Article- determination of which is necessary for
134A that- the disposal of the case, and is of opinion
(1) the case involves a substantial that such Act. Ordinance etc. is invalid or
question of law of general importance. inoperative, but has not been so declared
(2) in the opinion of the H.C. the said que. by the H.C. to which that court is
needs to be decided by the S.C. subordinate or by the S.C., the Sub. Court
Power of Appellate Courts shall state the case for the opinion of the
Sec.107, Order -41 H.C.
Subject to the conditions and limitations of Conditions - Orders-46, R-1
C.P.C. the appellate court shall have the (1) There must be a pending suit or
following powers - appeal in which the decree is not
(1) to decide the case finally - Rules-32 & subject to appeal;
33 (2) Any que. as to the validity of any Act,
(2) to remand a case - Rule-23 Ordinance or Regulation arises in such
(3) to frame issues and refer them for trial suit or appeal;
- Rule-25 (3) There must be a reasonable doubt to
(4) to take additional evidences or require the subordinate court on such
such evidence to be taken - Rule-27 question.
order 41 Rule-23, Remand of case - (4) The determination of such question by
Where the trial Court decided the suit on a higher Court is necessary for the
preliminary point without recording disposal of pending case.
findings on other issues and if the (5) The Sub Court must draw such
appellate Court reverses the decree so question and refer it to the H.C. for its
passed, it may send back (remand) the opinion.
case for trial. Who may apply -
Preliminary points -
 Only a Court can refer a case Sec.115 of the Code empowers a H.C. to
either on an application of a party or suo entertain a revision in any case decided
motu. by any Court subordinate to such H.C. an
REVIEW (Sec.114, O-47) in which no appeal lies or is possible.
Sec.114 of the code gives a substantive Grounds -
right of review in certain circumstances (a) The subordinate court has exercised a
and O-47 provides the constitutes an jurisdiction not vested in it by law, or
exception to the general rule that once a (b) It has failed to exercise a jurisdiction
judgment is signed and pronounced by the so vested,
court it becomes functus-officio (ceases (c) It has acted in the exercise of its
to have control over the matter) and has jurisdiction illegally or with material
no power to alter it. irregularity.
According to Sec.114, any person If any of the above grounds
aggrieved by a decree or order may make presents the H.C. may varry or reverse
an application for review of a judgment in any order as it thinks fit after hearing both
a Court which passed the decree or order sides.
(before same judge) in following cases - Provided, that the H.C. shall not
(a) cases in which appeal lies but not vary or reverse any order unless after that
preferred. revisional order the case is finally disposal
(b) cases in which no appeal lies, or of.
(c) decision on reference from Court of Note : In U.P. D.J. has also revisional
Small causes. power under this section for a matter
 Reference of small causes court value of which is upto 5 Lacs.
goes to D.J. (Section 26 of SCC Differences
Act) Provisions
Grounds for review - O-47, R-1 Who can aply
1. Discovery of new evidence which after While it goes
due diligence could not produced at Grounds
hearing. Reference and Appeal -
2. Mistake or error apparent on the face (1) The provisions relating to
of the record. 'REFERENCE' is given U/s-113 deal
3. Any other sufficient reason. with order-46 while the provisions
Limitation period- relating to 'APPEAL' is given U/Ss-96-
According to Article-124, Limitation 112 deal with Orders 41-45.
Act 1963, the period of limitation for an (2) A right of appeal is a right
application for review of a judgment by a vested/conferred on the suitor, while
Court other than the S.C. is 30 days from the power of reference is vested in the
the date of decree or order. Court, i.e. only court can refer the
Revision (Sec.115, O-No) matter.
(3) Reference is always made to the H.C. while the grounds for revision relate to
while an appeal can be preferred to a jurisdictional erros of the sub-ordinate
superior court which need not court.
necessarily be a H.C. (3) Reference is made during the
(4) The grounds of appeal are wider than pendency of suit, appeal etc. while
the grounds of reference. revision application is made after the
(5) Reference is always made during the case has been decided by
pendency of suit, appeal etc. while an Subordinate court.
appeal can only be filed after a decree REVIEW AND APPEAL
is passed or an appealable order is (1) An application for review is made in
made. the same court which passed the
Reference and Review - decree or order, while an appeal lies to
(1) Reference is made during the Superior Court.
pendency of suit, appeal etc. while a (2) Review of a judgment involves re
review application is made after a consideration of the same subject
decree has been passed or an order is matter by the same judge, while an
made. appeal is heard by the Superior Court
(2) In reference the subordinate court and by different judge.
refers the case to H.C. while in review (3) The grounds of review are narrower
an application is made by aggrieved in than the grounds of appeal.
same Court. (4) A second appeal lies on a substantial
(3) The H.C. alone can decide matters on que. of law but a second review
reference while review application is application does not lie.
made to the court which passed the Revision and Appeal -
decree or made on order. 1. An appeal lies to a Superior Court,
(4) The grounds of reference and review which may not necessarily be a H.C,
are different. In reference, the court while a revision application lies only to
feels a reasonable doubt regarding the H.C.
any que. as to the validity of Law, in 2. An appeal lies only from the decrees
review the discovery of any new and and appealable orders, but a revision
important matter or evidence arises. application lies only when the relief by
Reference and Revision- way of appeal is not possible.
(1) In reference, the case is referred to the 3. A right of appeal is substantive right
H.C. by a Court subordinate to it. In conferred by the statute, while the
revision, the jurisdiction of the H.C. is revisional power of the H.C. is purely
invoked either by the aggrieved party discretionary.
or by the H.C. suo motu. 4. A revision application lies only on the
(2) The grounds of reference relate to ground of jurisdiction error while an
reasonable doubt on a que. of Law,
 appeal lies on a question of fact, or of Exemption of other persons-
Law or of fact and law. The following person shall be
5. Under revisional power the H.C. may exempt from personal appearance in
take action suo, motu but in appellate Court, namely-
power the memorandum of appeal 1. President of India and Vice President
must be filed by the party. of India.
Revision and Review 2. Speaker of the House of People.
1. Revisional jurisdiction can only be 3. The Ministers of the Union.
exercised by the H.C., while the power 4. Judges of the S.C.
of review can be exercised by the very 5. The Governors of States and
Court which passed the decree or Administrators of U. Ter.
made the order. 6. Speaker of State Legislative Assembly
2. Revisional power can be exercised by 7. Chairman of the State Legislative
the H.C. only when if no appeal lies to Councils.
the H.C., but review can be made 8. The Ministers of the States
even when an appeal lies to the H.C. 9. Judges of the H. Courts
3. Revisional power can be exercised by 10. Persons on whom Sec.87B applies
the H.C. even suo motu, but for review (Ruler/Foreign)
an application has to be made by the Sec.135
aggrieved party. Exemption from arrest under Civil
4. The powers of revision and review can Process
be exercised on different grounds. No Judge, Magistrate or other
5. The order granting review is Judicial Officer shall be liable to arrest
appealable, but on order passed in the under Civil Process while going to
exercise of revisional jurisdiction is not presiding in or returning from, his Court.
appealable. Following persons are exempted
6. Revisional power can be exercised from arrest –
only in case where no appeal lies but
review can be made even when such
(1) Section 56- women
appeal lies.
Sec.132
(2) Section 81- public servant in
Exemption of certain woman from
execution.
personal appearance
The woman who according to the
(3) Section 86 (5)- Ambassadors,
customs and manners of the country,
Rulers etc.
ought not to be compelled to appear in
public shall be exempt from personal
(4) Section 135- Judges Advocates
appearance in Court.
etc.
Sec.133
 (5) Section 135(A)- MP, MLA, MLC (2) Section 133 (1) President, Vice
etc. President, Governor, Minister of
center / State, Speaker and
Chairman of Assembly, Judge of
Following persons are exempted
High Court and Supreme Court.
from appearance.

Sec.144
(1) Section 132 – Women who are Application for Restitution
under custom not appear in public. The expression "restitution" has
not been defined in the Code. Restitution
(2) Sec. 133 – Higher dignitary like means "an act of restoring a thing to its

president, Vice President, Speaker, proper owner". In other words, restitution

means restoring to a party the benefit
Ministers, Judges of HC/SC,
which the other party has received under
Governors and state authority.
a decree subsequently held to be
Following persons exempted from
wrong/reversed. The Doctrine of
arrest:-
restitution is based on a latin maxim
"actus curiae neminem graebit" i.e. act of
(1) Section 81 - Public servant during Court shall harm no one.
execution. Illustration -
(2) Section 86 (5) - Ambassadors etc. (a) A obtains a decree against B for
(3) Section 56 - Women in execution possession of immovable property and in
of money decree. execution of the decree obtains

(4) Section 135- Judge or magistrate possession thereof. The decree is

subsequently reversed in appeal. B is
while to going to court or coming
entitled under this section to restitution of
to court.
the property.
(5) Section 135(A)- exemption from
(b) A obtains a decree against B for
arrest of M. P., M. L. A. , M. L. C.
Rs.5000/- and recovers the amount in
, etc. execution. The decree is subsequently
reversed in Appeal. B is entitled to a
Following Persons are exempted refund the amount U/s-144.
from appearance:- Grounds - Conditions -
1. The restitution sought must be in

(1) Section 132 – Exemption of respect of the decree or order which

women who is not appear in a had been reversed or varied;

public.
2. The party applying for restitution must whom an application is expected to be
be entitled to benefit under the made.
reversing decree or order ; and (3) Sub-sec(4) provides that is the duty of
3. The relief claimed must properly applicant to furnish to the caveator
consequential on the reversal or forthwith at the caveator's expense a copy
variation of the decree or order. of the application and other documents
Where application for restitution lies - filed by him in support of such application.
An application under Sec.144 shall (4) Sub-sec(3) provides that once a
be made in the court of first instance caveat had been lodged, it is the duty of
which has passed original decree. the court to issue a notice on the caveator
Appeal - of any application filed in any suit or
The determination of any question proceeding.
within Sec-144 shall be deemed to be a It is for the purpose of enabling the
"decree" U/s-2(2) hence an appeal lie caveator to appear and oppose the
against it. granting of an interim relief in favour of the
Sec.148-A applicant.
Right to lodge a Caveat - Time Limit
A Caveat is a caution or warning (5) Sub sec.(5) provides that such caveat
given by a party to the Court not to take shall not remain in force after the expiry of
any action or grant any relief to the 90 days from the date on which it was
applicant without notice being given to the lodged.
party lodging the Ceveat (Caveator). Object of lodging a Caveat-
It is very common in testamentary (1) To safeguard the interest of caveator.
proceedings. (2) To afford on app. of hearing to
Procedure - caveator.
Sec 148-A (3) To avoid multiplicity of proceedings.
Who may lodge a Caveat After lodging a caveat no interim
(1) Where an application is expected to be order or an exparte decree can be passed
made in a suit or proceeding in a Court, without giving an app. of hearing to the
any person claiming a right to appear caveator. It prevents multiplicity of
before the Court on the hearing of such proceedings because in absence of such
application may lodge a caveat in respect provision, a person who is not a party to
thereof. such an application and is adversly
Rights and Duties affected by the order has to take fresh
(2) Where a Caveat has been lodged appropriate legal proceedings to get rid of
U/Sub sec (1), the Caveator shall serve a such order.
notice of the caveat by registered post, Sec.151
acknowledgment due, on the person by Inherent powers of Courts
 Sec.151 makes provisions in 3. It may pass order to prevent contempt
respect of in herent powers of Court. This of court.
power is vested in all Civil Courts whether In Paldhar Roling Mills Pvt. Ltd.
lower or highest Court. V/S Visvaisharraya I and S Ltd.
This code has provided express AIR 1958 KAR.
provisions regarding procedure but it's not
----------------------------------------------
complete or exhaustive. It is the duty of
When there is specific provision on
Court to do justice and for that purpose
any particular point has been
this CPC has conferred the Courts
mentioned in C.P.C. then provisions
inherent powers to do justice and to
prevent the abuse of process.
of 151 cannot be invoked the same

For example - point has been observed by Supreme

Where this Code is silent at any Court in
point then Courts have inherent powers to
give such order as it thinks fit to secure  Shipping Corporation of India
justice. Ltd. V/S Mcchachado Brothers
Sec.151 is a saving clause and A I R 1962 S.C.
only gives legislative recognition of an age
Supreme Court held in Manohar
old and well established principle that
Lal V/S Hira Lal inherent power
every Court has to do justice b/w the
is not given to court by his Act but
parties.
it is inherent in court because
Inherent powers of the Court are
independent of and in addition to the inherent quality of court to do

powers specifically /expressly conferred justice and to prevent the abuse of

on the court by CPC. process.
This inherent power can be used
only where the law is silent on the point Besides Sec.-151, following sections
are also example of inherent powers of
under consideration. Where this code has Court-
provided express provision, inherent 1. Sec.148 - Enlargement of time- The
powers should not be used there. court may in its discretion, enlarge a
 By inherent power court can order time period upto 30days for taking any
for joinder of suit in which plaintiff step although time period prescribed
has common cause of action has been expired.
against defendant (Order 1 Rule 2. Sec.149- Making up deficiency of
1). Court fees- The court may allow a
Example of inherent powers- party to make up the deficiency of
1. Court may joint suit Court-fees payable by him even after
2. It can recall or cancel its order etc. the expiry of the prescribed limitation
period.
3. Sec.152 (Order 20 Rule 3)- remedy provided but has neglected to
Amendment of judgments, decrees or avail himself of it.
orders - The Court may amend by
correcting clerical or arithmetical THE FIRST SCHEDULE
mistakes in judgment etc. either on its ORDER-I
own motion or an application of any of Rule-1 Joinder of Plaintiffs -
the parties. The court may order to join
Sec.153 A provides that where an plaintiffs if
appellate Court has dismiss an appeal (i) Right claimed by the plaintiffs arises out
summarily under O-41, Rule-11, the of same act or transaction.
power of amendment U/s-152 can still (ii) The case is of such character that, if
be exercised by the Court of first such persons brought separate suits, any
instance. common question of law or fact would
4. General power to amend- Sec.153- arise.
The Court may at any time amend Rule-3 Joinder of defendants -
defect or error in any proceeding in a The court may order to join
suit. defendants if-
Amending power given U/s-153 is (i) The right claimed against them arises
wider then the amending power given in out of same act or transaction;
Order-6, R-17. According to Sec.153, (ii) The case is of such a character if
Court can give order to amend in any separate suit were brought against them,
proceeding in a suit whereas under O-6, any common que. of law or fact would
R-17 court can order to amend only arise.
pleading. Rule-8 - Representative suit -
Limitations on inherent power of Rule-8 provides that when there
Courts are a number of persons similarly
1. Court has no power to do what is interested in a suit, one or more of them
prohibited by this Code. can, with the permission of the court, sue
2. Where specific provisions are or sued on behalf of others. This is called
contained in respect of any particular a representative suit. The plaintiff in a
issue under this code, the Court has representative suit need not obtain the
no power to make such provisions previous consent of the persons whom he
meaningless and to device its own seeks to represent.
procedure. Conditions -
3. The inherent power of court is in for filing a representative suit, the
relation to procedure and it is following conditions must exists-
restricted to procedural matters only. 1. Number of parties are more than one.
4. The inherent power is not to be 2. They have same interest in the suit.
exercised where the applicant has
3. The permission must have been Effect of mis-joinder or non-joinder of
granted by the Court. parties-
4. Notice must have been issued to the The combined effect of Sec.99 and
parties on whose behalf a Rule-9, O-1 is that, no decree shall be
representative suit has been filed. reversed or varied in appeal on ground of
Note: A decree passed in a representative any misjoinder or nonjoinder of parties.
suit shall be binding on all persons on But this rule is not applied in case of non-
whose behalf the suit is instituted or joinder of necessary party.
defended. The principle of Res Judicata Suit-
would be applicable against all parties. A suit is a civil proceeding
Necessary and proper parties- instituted by the presentation of a plaint.
A necessary party is one whose presence Essentials of suit-
is indispensable to the constitution of the There are 4 essentials of a suit-
suit against whom the relief is claimed and 1. Opposite parties
without whom no effective order can be 2. Subject matter in dispute
passed. 3. Cause of action and
A proper party is one in whose absence 4. Relief
an effective order can be passed, but ORDER-IV
whose presence is necessary for a Institution of suits-
complete and final decision on the Sec.26 and 0-4 deals with the
question involved in the proceeding. presentation of plaint institution of suit.
Example of necessary party They provide that every suit must be
In partition suit between father and sons instituted by the presentation of a plaint in
all are necessary parties. duplicate by the plaintiff himself or by his
Example of proper party Advocate or by his recognised agent.
1. In suit for partition between father and Place -
sons, grand son is a proper party. A plaint must be presented to the
2. In a Suit against one tenant to another Court or such officer as it appoints in that
co tenant, for nuisance land lord is proper behalf. Thereafter, the particulars of a suit
party. will be entered by the Court in a book kept
Rule -9 Misjoinder and non-joinder of for the said purpose, called the register of
parties - If two or more persons are joined Civil suits. Such entries shall be numbered
as plaintiffs or defendants in one suit in in every year according to the order in
violation of O-1, R-1 and 3, it is a case of which the plaints are admitted.
misjoinder of parties. Summons
Where a person, who is a When the plaintiff files a suit, the
necessary or proper party to a suit has not defendants has to be informed that the
been joined a party to the suit, it is a case suit has been filed against him, and that
of non-joinder of party. he is required to appear in the court to
defend it. The intimation which is sent to plaint, the defendant is present and admits
the defendant by the Court is known as the plaintiffs claim.
summons.
Particulars of summons- Appearance of defendant - R-3
1. Date and time when a person has to A defendant to whom a summons
appear before Court. has been issued may appear-
2. Purpose of summons (i) in person
3. Signature of Judge or Officer who has (ii) by a pleader
issued it. The court may however order the
4. Seal of the Court defendant a plaintiff to appear in person.
5. If summons is issue to defendant, it Exemption from personal appearance -
must be accompanied with a plaint Ss-132, 133, R-4
copy. No party shall be ordered to
Purposes of summons- appear in person.
1. For appearance of defendant to (1) Unless he resides (a) within the local
produce W.S. limits of the courts original jurisdiction.
2. For appearance of witnesses. (b) Outsides such limits, but at a place
3. For appearance of a person detained less than (i) 50 miles (1.6 guna of km) (ii)
in jail Order 16 A. 200 miles (where public conveyance is
4. For settlement of issues or final available) from the court house; or
disposal of the suit. (2) who is a woman not appearing in
5. To produce written statement. public.
6. To produce documents mentioned in (3) who is entitled from exemption U/s-
O-8, R-1. 133.
Kinds of Summons- Mode of Service of Summons
1. Summons to parties, O-5, Ss-27-29. The Code prescribes 5 principal modes of
2. Summons to witnesses O-16 serving a summons to a defendant-
ORDER-5, Ss 27-29 (1) Service by Court - R-9
Summons to defendants - Sec.27, R-1 Summons to defendant residing
When a suit has been duly filed by within the jurisdiction of the Court shall be
presentation of a plaint, the Court must served by the Court Officer (Forth class
issue summons to the defendant calling employee) or approved courier service. It
upon him to appear on a day specified can also be served by reg. post, speed
therein and answer the claim of the post, courier service, fax, e-mail etc. as
plaintiff within 30 days from the institution per the rule made by H.C. where
of the suit by filing a W.S. defendant resides in other jurisdiction,
No summons will be issued by the summons shall be served through on
Court if at the time of presentation of a office at the Court where the def. resides.
(2) Service by plaintiff - R-9A
 The Court may also permit service on the outdoor or some other conspicuous
of summons by the plaintiff on his part of the house in which the defendant
application in addition to service of ordinarily resides or carries on business
summons by the court Dasti sum. and shall then return the original to the
(3) Personal or direct service - Rr-10-18 court, with a report endorse thereon
This is an ordinary mode of service stating that he has so affixed the copy and
of summons. Here there are the principles the name and address of person by whom
to be remembered- the house was identified and in whose
(i) Whenever, it is practicable, the presence the copy was affixed court may
summons must be served to the order a copy to be affixed on Court room
defendant in person or to his authorised also.
agent.12 The Court may also order service
(ii) Where the defendant is absent from his of summon by advertisement in a daily
residence at the time of service of news paper circulating in the locality
summons and there is no likelihood of him where the defendant last resided.
being found at this residence within a Effect of substituted service -
reasonable time and he has no authorised Service substituted by order of court shall
agent, the summons may be served on be deemed to be made on the defendant
any adult member (male or female) of the personally.
defendants family residing with him. A Service of summons in special cases - Rr-
servant cannot be said to be a family 21-30
member (Order 5 Rule 15). (1) Rr-21, 23, Sec-28 - Where the
(iii) Where there are two or more defendant resides within the local
defendants service of summons should be jurisdiction of another court or in other
made on each defendant. state, the summon may be sent to the
In all the above cases, service of Court where he resides. Such court shall
summons should be made by delivering or serve summons on the defendant-
tendering a copy thereof. Where the (2) Sec.29 - Summons of foreign court to
serving officer delivers or tenders a copy be served by such court in India in whose
of summons to defendant personally he jurisdiction the person resides.
must take an acknowledgment of service (3) R-25 - Service of summons when
of summons. Thereafter the S. Officer defendant resides out of India, by post,
must make an endorsement an original fax, email etc.
summons. (4) R-27 - Service of summons to public
(4) Substituted service - Rr 17, 19, 20 servant may be made through the head of
(Procedure when defendant refuses to the department.
accept service, or cannot be found R-17) (5) R-28 - Service of summons to soldier,
In this circumstances the serving sailor or airman through his commanding
officer shall affix a copy of the summons officer.
(6) R-24 - Service of summons to person all such details as his opponent needs to
confined in jail through the officer in know in order to prepare his case in
charge of jail. answer.
(7) R- - Service of summons on General principles of pleading - Rule-2
Corporation served on secretary, director, 1. Pleading should state facts and not
principal officer of corporation. law.
ORDER-6 PLEADINGS 2. The facts stated should be material
facts;
Object / Principles of Pleading:- 3. Pleadings should not state the
The whole object of pleading is to evidence; and

bring parties to definite issue and 4. The facts should be stated in a

concise form.
diminish expenses and delay and to
Facts and not law-
prevent surprise at the hearing.
It is duty of the parties to state only
the facts on which they rely upon for their
In other words –
claims. It is for the court to apply the law
(1) Pleading – is to ascertain to the facts pleaded.
the real disputes between Material facts-
the parties. It means all facts upon which the
plaintiffs cause of action or the
(2) To narrow down the area of defendant's defence depends. In other
conflict and to see where words, all the facts which must be proved

the two sides differ. at the trial by a party to established the

existence of a cause of action or his
(3) To preclude one party from defence are material facts.

taking the other by surprise  Custom and usage are matter of

and to prevent miscarriage fact and must be pleaded.

 Udhav Singh v/s Madhav Rao
of justice .
Scindia 1977 SC in this case
(Supreme Court defines the
expression “material fact” as all the

Definition of pleadings - Rule -1 primary fact which must be proved

According to Rule-1, Pleadings means at the trial stage by a party to

plaint or written statement. establish the existence of a cause

According to Mogha, "Pleadings are of action are his defence are

statements in writing drawn up and filed material fact).

by each party to a case, stating what his 

contentions will be at the trial and giving Facts and not evidence-
The facts are of two types-
(i) Facta probanda - the facts required to on the ground of personal requirement or
be proved (material facts) ; and in the alternative on the ground of non-
(ii) Facta probantia - the facts by means of payment of rent.
which the facta probanda are to be proved The expression "inconsistent"
(evidence). means mutually repugnant, contradictory,
The pleadings should contain only destructive. One is contrary to the other.
Facta probanda and not facta probantia. Both can not stand.
The material facts on which the plaintiff The code does not prohibit a party
relies for his claim or the defendant relies from making two or more inconsistent sets
for his defence are called facta probanda, of allegations. A plaintiff may rely on
and they must be stated in the plaint or several different rights alternatively,
W.S. although they may be inconsistent, so also
But the facts or evidence by a defendant may raise by his w.s. as
means of which the material facts are to many distinct and separate inconsistent
be proved are called Facta probantia and defences for eg. (1) A claim of ownership
they need not be stated in the pleadings. or in alternative a right of easement (2) A
Concise Form - plea of grant of perpetual tenance or in the
Alternative and inconsistent pleading- altern. a plea of adverse possession.
The expression "alternative" means a Striking out pleading- Rule-16
choice between two things. A party two a Rule-16 provides that the court
litigation may include in his pleading two may at any stage of the proceedings order
or more sets of facts and claim relief in the to be struck out or amended any matter in
alternative. any pleading - U;k;ky; vkns'k ns ldsxk
In other words, there is nothing in
fd dksbZ Hkh ckr dkV nh tk; ;k
CPC to prevent the plaintiff from relying
upon several different reliefs in the la'kksf/kr dj nh tk;A
alternative or to prevent the defendant (a) which may be unnecessary,
from raising several different defences in scandalous, frivolous or vexatioous, or
the alternative. (b) which may tend to prejudice,
Morgan v/s Morgan 1887 35chD492 embarrass or delay the fair trial of the suit,
Court held that parties can pleads or
alternative pleading. (c) which is otherwise an abuse of the
for eg- process of the Court.
A suit for possession of property is Application for amendment in pleading
maintainable on the basis of title or in the -Rule-17
alternative on the basis of lease. The court may at any stage of the
A landlord can file a suit for proceedings allow their party to alter or
eviction of his tenant on the ground of amend his pleadings in such manner and
personal requirement or in the alternative on such terms as may be just and proper
and all such amendments shall be (4) When the application for amendment
necessary to determine the real questions is not made in good faith.
in controversy between the parties. Failure to amend after order - Rule-18
Provided, that no application for Failure to amend within time given
amendment shall be allowed after the trial by the Court or if no such time is given,
has commenced, unless the court comes within 14 days from the date of the order,
to the conclusion that inspite of due the party cannot be allowed after the lapse
diligence the party could not have raised of the said time period unless the time is
the matter before the commencement of extended by the Court.
trial. Effect of amendment-
Leave to amend when granted- Where an amendment is allowed
(1) If the amendment is necessary for the such amendment relates back to the date
determination of the real que. in of the suit as originally filed.
controversy ; Amendment of Pleading
(2) The amendment is not working (Order 6 Rule 17)
injustice to the otherside.
The court may allow amendment for
(1) Court will refuse to grant
the porpose of granting relief on the basis
amendment if the certain
of different approaches to the same facts,
rights accrued to opposite
or to avoid multiplicity of proceedings, or
party due to passage of time
to take notice of subsequent events, or to
clarify the pleadings, or to allow
(limitation period).

misdescription of parties to be corrected The English case on the subject is

etc. Weldon V/S Neal (1880) 19
Leave to amend when refused- Q B D 394
(1) When the amendment is not -----------------------------
necessary for the purpose of In that case, A field a suit against
determing the real que. in controversy B for damages for slander. A
b/w the parties.
thereafter applied for leave to
(2) If it introduces a totally different, new
amend the plaint by adding fresh
and inconsistent case or changes the
claims in respect of assault and
fundamental character of the suit or
false imprisonment. At the date
defence.
(3) When the effect of proposed of application, those claims were

amendment is to take away from the barred by limitation although

other side a legal right accrued in his they were within the period of
favour. Filing of any fact after lapse of limitation at the date of the filing
time. of the suit. The amendment was
refused since the effect of statement was filed, the company
granting it would be to take away applied for leave to amend the
from B the legal right (the defence by adding the plea that
defence under the law of under the contract entered into
limitation) and these would cause between the company and the
prejudice to him another case on local authority the liability to
the point is. maintain the roadway in proper
condition was of the latter and,
Charan Das V/S Amir Khan A therefore, the company was not
I R 1921 P C 50 liable. At the date of the
------------------------------------ amendment application, the
plaintiff’s remedy against the
(2) Leave to amend will be local authority was time-barred.
refused it if introduces a Had the agreement been pleaded
totally different new and earlier, the plaintiff could have
inconsistent case or changes filed a suit even against the local
the fundamental character of authority. Under the
the suit or defence and loss circumstances, the amendment
cannot be compensated by was refused.
cost.
In Steward V/S North Cropper V/S Smith 1884 29 ch
Metropolitan Tramways Co. D 700
1886 16 QB 178 ---------------------------------------
----------------------------------- Generally court must allow the
Plaintiff has filed a suit against amendment if inconvenience
defendant (Tramway Co.) for cause to opposite party must be
damages cause by the negligence compensated by cast. For this
of the company in allowing the Bowen L. J. rightly states.” I
Tramway to be in defective have found in my experience that
condition. The company denied there is one panacea which heals
the allegation of negligence. It every sore in litigation and that is
was not even contended that the costs”.
company was not the proper
“eSaus vius vuqHko ls
party to be sued. More than six
months after the written ik;k gS fd eqdnesa ckth ds
gj [kpZ ds fy;s ,d jkeck.k gS (2) Amendment allowed
subjected to cast to other
vkSj og gS [kpZ (“ (Cost). party.

Kisondas V/S Vithoba 1909 3 Bom 644

(3) Where amendment
allowed during proceeding
“All amendments ought to be allowed
of a suit it operates
which satisfy the two conditions:-
retrospectively i. e. from
institution of suits.
(a) Of not working injustice of
other side and

PLAINT- ORDER -VII

(b) Of being necessary for the
The expression plaint has not been
purpose of determining the defined in the Code. Plaint is a statement
real question in of claim, a document, by presentation of
controversy between the which the suit is instituted. It is the
parties.” pleading of the plaintiff.
Particulars to be contained in plaint-
Rules- 1-8
The plaint shall contain the
following particulars-
General points on
(1) The name of the Court in which the
amendment:-
suit is brought.
(2) The name description and place of
(1) Amendment in pleading
residence of the plaintiff.
can be allowed by cost an (3) The name, description and place of
any stage i. e. before trial, residence of the defendant.
during trial, after trial (4) Where the plaintiff or defendant is a
before judgment, during minor or a person of unsound mind, a
first appeal (Sec 107), statement to that effect.

second appeal (Sec 108) (5) The fact constituting the cause of
action and when it arose.
and revision and even in
(6) The fact showing that the court has
Supreme Court.
jurisdiction.
(7) A statement of the value of the subject
matter of the suit for the purpose of
jurisdiction and court fees;
(8) The reliefs claimed by the plaintiff. fees U/O-5, R-9 for issuance of summons
(9) Where the plaintiff has allowed a set- within 7 days and he fails to do so.
off a portion of this claim, the amount Effect of rejection - Rule-13
so allowed. If the plaint is rejected on any of
(10) Where the suit is time barred, the the above grounds the plaintiff is not
ground upon which the exemption thereby precluded from presenting a fresh
from the law of limitation is claimed. plaint in respect of the same cause of
Admission of plaint - R-9 action.
Rule-9 lays down the procedure Appeal against rejection of plaint-
when the plaint is admitted by the Court. It An order rejecting a plaint is a
provides for filing of copies of the plaint by deemed "decree" within the meaning of
the plaintiff and also requires him to pay Sec.2(2) of C.P.C. and, therefore is
requisite fees for the service of summons appealable.
on the defendants within seven days. ORDER-VIII
Return of plaint - Rules-10 - 10B W. S., SET-OFF AND COUNTER CLAIM
Where at any stage of the suit, the WRITTEN STATEMENT
Court finds that it has no jurisdiction, it will The expression "W.S." has not
return the plaint to be presented to the been defined in the Code. It may be said
proper court. The judge returning plaint that a w.s. is the pleading of the defendant
should make endorsements on it wherein he deals with every material facts
regarding - alleged by the plaintiff in his plaint and
(i) the date of presentation (ii) the date of also states any new facts in his favour of
return (iii) the name of party presenting it takes legal objections against the claim of
(iv) reasons for returning it. the plaintiff.
The order returning the plaint is Rule-1 : A defendant shall, within 30 days
appealable under Order-43, R-1. from the date of service of summons on
Rejection of plaint - Rule-11 him, present a w.s. of his defence. The
The plaint shall be rejected in the said period, however, can be extended up
following cases- to 90 days.
(a) where plaint does not disclose cause SET-OFF, RULE-6
of action. "Set-off' means a claim set up
(b) where relief claimed is undervalued. against another. It is a cross claim which
(c) where plaint is insufficiently stamped. partly adjust the original claim.
(d) where suit is barred by law. A plea of set-off is a plea whereby
(e) where plaint is not in duplicate a defendant acknowledges the justice of
(f) where the plaintiff fails to comply with the plaintiffs demand, but sets up another
Rule-9 demand of his own to counterbalance that
Rule-9 states that where court has of the plaintiff; either in whole or in part".
ordered the plaintiff to deposit process
Thus, it is a "reciprocal acquittal of debts (3) Such sum must be legally recoverable;
between two persons. [Ill-(d)]
The right of defendant to claim set- (4) It must be recoverable by the
off has been recognised under Rule-6. defendant from the plaintiff or from all the
Illustrations- plaintiffs if more than one; [Ill-9c)]
(a) A suis B for Rs.20000. B cannot set off (5) It must be recoverable by the
the claim for damages for breach of defendant or by all the defendants, if more
contract for specific performance. than one; [Ill-(f)]
(b) A sues B on a bill of exchange. B (6) It must not exceed the pecuniary
alleges that A has wrongfully neglected to jurisdiction of the Court in which the suit is
ensure B's goods and is liable to him in brought;
compensation which he claims to set-off. (7) It must not exceed the pecuniary
The amount not being ascertained cannot jurisdiction of the Court in which the suit is
be set-off. brought;
(c) A sues B on a bill of exchange for (8) Both the parties must fill, in the
Rs.500. B holds a judgment against A for defendants claim to set-off, the same
Rs.1000. The two claims being both character as they fill in the plaintiffs suit.
definite/ascertained, pecuniary demands [Ill-(g)]
may be set-off. Effect of Set-off - Order-20, R-19
(d) A sues B for Rs.10,000. B can not set- When a defendant pleads set-off,
off any amount due to him towards salary he is put in the position of a plaintiff as
for performing illegal or immoral activities regards the amount claimed by him. Thus
of A. there are two suits and they are tried
(e) A and B sue C for Rs.1000. C cannot together. Where the suit of plaintiff is
set off a debt due to him by A aone. dismissed, it does not affect the claim for
(f) A sues B and C for Rs.1000. B cannot a set-off by the defendant and a decree
set-off a debt due to him along by A. may be passed in favour of defendant if
(g) A owes the partnership firm of B and C he proves his claim.
Rs.1000. B dies, leaving C surviving. A Types of Set-off-
sues C for a debt of Rs.1500 due in his 1. Legal set-off - O-8, R-6
separate character. C may set off the debt 2. Equitable set-off, O-20, R-19(3)
of Rs.1000. Equitable set-off O-20, R-19(3)
Essential conditions - Legal set-off was allowed by the
A defendant may claim a set-off, if common law courts in England. It is
the following conditions are satisfied- always in respect of an ascertained sum
(1) The suit must be for the recovery of of money. But there may be cases in
money. [Ill. (a)] respect of an unascertained sum of
(2) The sum of money (to be set-off) must money.
be ascertained; [Iii-(b)]
 Equitable set-off is provided by Counter Claim: Rules-6A-6G
Equity Courts in England. In equitable set- By the Amendment Act, 1976, a
off, court of equity allowed the set-off of an specific provision has been made for
unascertained sum of money also counter-claims by inserting Rules-6A-6G
provided that both the cross-demands of Order-VIII.
arise out of one and the same transaction Counter claim is a claim made by
or are so connected, in the nature and the defendant in a suit against the plaintiff.
circumstances. Order-20, Rule-19(3) of Counter claim is a cross-suit. It is in
the Code recognizes an equitable set-off addition to set-off and filed where the
in India. defendant has right to file a separate suit.
for eg.- Counter claim is like a cross-action
(a) A sues B to recover Rs.50,000 under a and treated as a separate suit by the
contract, B can claim set-off towards defendant for which plaintiff has to file his
damages sustained by him due to breach w.s. against such counter claim. So in a
of the same contract by A. counter claim plaintiff is a defendant and if
(b) In a suit by a washerman for his he fails to file w.s. against C.C., the court
wages, the defendant may set-off the may pass a decree (ex-parte) in favour of
price of the clothes lost by the plaintiff/ the defendant. So both suits are different
washerman. has to file a C.C. at or before filing of his
DIFFERENCE W.S.
Legal Set-off Equitable set-off The Counter claim shall be treated
(O-8, R-6) (O-20, R-19(3)
as paint and shall be governed by the
1. It must be for an 1. It may be
rules applicable to plaints.
ascertained allowed even for
sum of money. an Example of counter claim- suit for

2. It is matter of unascertained recovery of possession, defendant can

right. sum of money. set-up for specific performance of contract
3. It is not 2. It is discretion of of sale of that property.
necessary that court. Effect of counter claim-
the cross 3. In equitable set- The effect of the counter claim is
demands arise off cross that even if the suit of the plaintiff is
out of same demands must stayed, discontinued dismissed or
transaction. be arise out of withdrawn, the counter-claim will be
4. This remedy is same
decided on merits.
provided by transaction.
Distinction b/w set-off and counter claim-
common Law 4. This remedy is
1. Set-off is a statutory defence to a
courts. provided by
plaintiff's action, whereas a C.C. is
5. It requires a Courts of equity.
substantially a cross-action.
Court fees. 5. It does not
1. requires court 2. Set-off must be for an ascertained sum
fees.
or it must arise out of the same
 transaction whereas C.C. need not Where neither the plaintiff nor the
arise out of the same transaction. defendant appears when the suit is called
3. Set off is a ground of defence to the out for hearing, the court may dismiss it.
plaintiff's action, in other words set-off The dismissal of the suit U/R-3, however,
is shield (<ky) which if established does not bar a fresh suit in respect of the

would afford an answer to the plaintiffs same cause of action. The plaintiff may

claim in full or part, whereas C.C. is a also make an application for an order to

weapon of attack, a sword, which set-aside such dismissal. And if the court

enables the defendant to enforce the is satisfied that there was sufficient cause

claim against the plaintiff effectually as for his non-appearance, it shall pass an

an independent action. order setting aside the dismissal of the

4. In the case of a legal set-off, the suit and shall fix a day for proceeding with

amount must be recoverable at the the suit.

date of the suit, while in the case of a Where only plaintiff appears - Rule-6

counter-claim the amount must be Where the plaintiff appears and the

recoverable at the date of w.s. defendant does not appears, the plaintiff

5. When the defendant demands in a has to prove service of summons on the

plaintiff's suit an amount below or up defendant. If the service of summons is

to the suit claim, it is a set off, but proved the court may proceed ex-parte

when it is for a larger amount, the against the defendant and may pass a

claim for excess amount is really a decree in favour of the plaintiff if the

C.C. plaintiff proves his case.

ORDER-IX Where only defendant appears- Rule-8

Appearance of parties and Where the defendant appears and

consequence of non-appearance the plaintiff does not appear, and the

Appearance of parties - Rule-1, Rule-12 defendant does not appear, and the

Rule-1 requires that on the day defendant does not admit the plaintiff's

fixed in the summons fro the defendant to claim, wholly or partly, the court shall pass

appear and answer, the both parties must an order dismissing the suit. But if the

attend the court in person or by their defendant admits the plaintiff's claim as a

pleaders. whole or a part thereof the court will pass

Rule-12 provides that where a a decree against the defendant upon such

plaintiff or a defendant, who has been admission and dismiss the suit for the rest

ordered to appear in person, does not of the claim.

appear in person, the court may dismiss Ques. Where an ex-parte decree has

the suit, if he is the plaintiff or proceed ex- been passed against the defendant, what

parte if he is the defendant. are remedies available to him against

Where neither party appears - Rule-3 such ex-parte decree?

Ans. - Ex-Parte Decree ?
 An ex-parte decree is a decree Order 13 (Order 7 Rule-14, Order 8
passed in the absence of the defendant. Rule 1(A)):- Parties has to produce the
Where the plaintiff appears and the original document in their support. But
defendant does not appear when the suit
parties cannot produce those document by
is called out for hearing and if the
which they cross examine the witness of
summons on the defendant is duly served,
opposite party for those document which is
the court may hear the suit ex-parte and
only for refreshing memory.
pass a decree against the defendant.
Such a decree is neither null and
void nor inoperative but is merely voidable Order 14:- The court will settled the
and unless and until it is annulled on valid issue. But if court thinks to examine any
grounds, it is legal, valid, operative and document before settlement of issue then it
enforceable like a bi-parte decree. will adjourn settlement for 7 days.
Remedies available to defendant-
(1) O-IX, R-13 - The defendant may make Order 16:- After settlement of issue
an application for restoration and setting
parties has to produce the list of witness
aside such ex-parte decree on ground that
within 15 days from settlement of issue.
the summons was not duly served on him
or he was prevented by any sufficient
cause for appearing on a fixed date of
hearing. Order 18:- If parties want to appear as

An application can be made within witness they have to appear before other
30 days from the date of the decree. witness.
No decree to be set aside without
notice to opp. party. Chief Examination of witness must be on
(2) Sec.96(2) Appeal affidavit.
(3) Order-47, R-1, Review
(4) Sec-115, Revision
(5) To file a fresh suit to set aside such ex-
ORDER-X
parte decree on ground of fraud.
Examination of Parties by the Court-
Rule-1 provides that the Court
Order 10:- When plaint / WS has been shall at the first hearing of the suit,
filed court make oral examination of ascertain from each party or his pleader
parties (Rule 2) to ascertain whether any whether he admits or denies such
issue exist or not and also for A D R. If allegations or facts as are made in the
court does not found any issue it will plaint or in the W.S. if any of the opposite

pronounce Judgment (0rder15). party. The Court shall record such

admission or denies.
 Rule-1A provides that After he purpose of the suit or not sufficiently
recording admissions and denials, the material at that stage, cannot be allowed.
Court shall direct the parties to the suit to Rule-7, Setting aside and striking out
settle the matter out of the court through interrogatories-
Arbitration, Conciliation, mediation or Lok Any interrogatories may be set
Adalat. aside or spuckout on the ground that they
Rule-2 provides for oral are unreasonable or scandalous and for
examination of the parties at 1st hearing this application must be made within 7
to the suit with a view elucidating matters days after service of the ingatories.
in controversy in the suit. (Explaining) ORDER-XII
ORDER-XI ADMISSION
Discovery and Inspection - Sec.-30 Sec.58 9EA lays down that the facts
After the plaint and W.S. have admitted need not be proved. The object
been presented in Court, it may appear of obtaining admissions is to do away with
either party that the nature of his the necessity of proving facts that are
opponent's case is not sufficiently admitted and the judgment and decree
disclosed in his pleadings. He is entitled to may be passed on such admissions.
know before hand all material facts Kinds of Admission
constituting the case of the opposite party
and all documents in his possession or Of facts Of documents
power relevant to the issue in the suit with
a view to understand and meet the case of In pleadings otherwise than
(ORs-7, 8) in pleading
his adversary at the hearing.
Rule-1, Discovery by interrogatories -
In any suit the plaintiffs or During In answer to On On By
ex. by introgatories Notice Oath agreemen
defendant by leave of Court may deliver court (O-11, (O-12, (O-10, t
(O-10, R-8,22) R-4) R-2) of parties
interrogatories in writing for the R-1,2) (O-18, (O-23,
R-3) R-3)
examination of the opposite parties. Notice to admit case- R-1
Rule-2, Particulars of interrogatories to be Any party to a suit may give notice
submitted - in writing that he admits the whole or any
The particulars of the interrogatory part of the case of the otherside.
proposed to be delivered should be Notice to admit documents - R-2
submitted to the court, which shall be After discovery and Inspection,
decided by the Court within 7 days from either may call upon the other party to
filing of the application. admit within 7 days from the date of
Rule-6, Objection to interrogatories - service of the notice, the genuineness of
Interrogatories which are any document.
scandalous, irrelevant or not bonafied for Judgment on admissions - R-6
 Rule-6 empowers the Court to Material propositions are those
pronounce a judgment upon the propositions of law or fact which a plaintiff
admissions made by the parties without must allege in order to show a right to sue
waiting for determination of any other or a defendant must allege in order to
question b/w the parties. It is the constitute his defence.
discretionary power of the court to Each material proposition affirmed
pronounce judgment on admission. by one party and denied by the other shall
ORDER-XIII form the subject-matter of a distinct issue.
Production of document - Rule-1 Kinds of issues - Rule-1(4)
Rule-1(1) provides that the parties Issues are of two kinds -
or their pleaders shall produce on or (a) issues of fact ; and
before the settlement of issues all the (b) issues of law.
documentary evidence in original, copies It may however, be mixed issues
whereof have been filed along with plaint of fact and law.
or W.S. Rule-1(5) provides that at the 1st
Rule-1(2) states that the Court hearing of the suit the court shall, after
should receive those documents. reading the plaint and W.S., if any, and
Exception - Rule-(3) provides that the after examination U/R-2 of Order-X and
above rule does not apply to following after hearing the parties or their pleaders,
documents- ascertain upon what material propositions
(a) documents produced for cross of fact or law the parties are at variance
examination of witnesses of the otherside, (erHksn), and shall thereupon proceed to
or frame and record the issues on which the
(b) documents handed over to the witness right decision of the case appears to
merely to refresh his memory. depend.
Effect of non-production of documents- Where proper issues are not framed -
Rule-2 Rule-4
No documentary, evidence in the Where the court is of opinion that
possession or power of any party which is the issues can not be correctly framed
not produced under Rule-1, shall be without the examination of some person
received at any subsequent stage of the not present before the Court or without the
satisfaction of the court for non-production inspection of some document not
thereof; the Court receiving such evidence produced in the suit, it may adjurn the
shall record his reasons for doing so. framing of the issues to a further day not
ORDER-XIV later than 7 days, and may compel the
Framing of issues - Rule-1 attendance of any person or the
Issues arise when a material production of any document by summons
proposition of fact or law is affirmed by or other process.
one party and denied by the other.
Power to amend and strike out issues - court a list of witnesses whom they
Rule-5 propose to call either to give evidence or
(1) The court may at any time to produce documents and obtain
before passing a decree amend the issues summonses to such persons for their
or frame additional issues on such terms attendance in Court.
as it thinks fit for determining the matter in Sub Rule-3 provides that the court
controversy b/w the parties. may permit a party to call any witness
(2) The Court may also at any time whose name has not been mentioned in
before passing a decree, strikeout any the list filed U/sub-rule-(1) if such party
issues that appear to it to be wrongly shows sufficient cause for the ommission
framed. to mention the name of such witness in
ORDER-XV the said list.
Disposal of the suit at first hearing- Failure to comply with summons -
The court may at once pronounce Rule-10, 12 /Sec.32
judgment in the following cases - The court has power to enforce the
(1) Parties not at issue - Where the attendance of any person to whom a
parties are not at issues on any que. of summons has been issued and for that
fact or law, the court may at once purpose, may-
pronounce the judgment. (a) issue a warrant for his arrest;
(2) Parties at issue - Where issues have (b) attach and sell his property;
been framed and the court is satisfied (c) impose fine upon him not exceeding
no further argument or evidence is Rs.5000/-
required, it may pronounce judgment (d) Order him to furnish security for his
at once. appearance and in default commit him to
(3) Failure to produce evidence- Where civil presion.
the summons has been issued for the ORDER-XVI-A
final disposal of the suit and either Attendance of witnesses confined in
party fails to produce the evidence on prisons
which he relies without sufficient The O-16A has been added by the
cause, the court may at once Amendment Act, 1976 provides for the
pronounce judgment. attendance of prisoners to give evidence if
ORDER-XVI the court is of opinion that their evidence
Summoning and attendance of is material in the suit, the court may make
witnesses- an order requiring the officer-in-charge of
List of witnesses and summons to the prison to produce that person by the
witnesses- Rule-1 : On or before such Court to give evidence.
date as the Court may appoint, and not Provide that if the distance from
later than 15 days after the issues are the prison to the Court house is more than
framed, the parties shall present in the 25 Kms, no such order shall be made
unless the court is satisfied that the The adjournment may be granted
examination through commission will not by the court inter alia on the grounds of
be adequate. sickness of a party, his written or his
Officer-in-charge to abstain from carrying Advocate; non service of summons
out order in following cases - R-5- reasonable time for preparation of case
(1) where the prisoner is unfit to be etc.
removed from the prison by reason of ORDER-XVIII
sickness or infirmity, or Hearing of suit and examination of
(2) where prisoner is under committal for witnesses
trial etc. Right to begin and reply - Rule-1
(3) where the period for which the The right to begin follows from the
prisoner is detained is expired before rule of evidence, i.e. burden of proof. Sec-
the expiration of time required in the 102 IEA provides that the burden of proof
order. lies on that party who would fail if no
(4) The prisoner is such upon whom the evidence at all where given on either side.
Govt. has make an order not to Accordingly, as a general rule, the
produce any where U/R-4. plaintiff has to prove his claim and,
ORDER-XVII therefore, he has right to begin unless the
Adjournments defendant admits the facts alleged by the
As a general rule, when hearing of plaintiff and contends that either on point
evidence has once began, such hearing of Law (eg. res judicata, limitation) or on
shall be continued day to day and the once add. facts alleged by him, the
adjournment should be granted only for plaintiff is not entitled to any relief. In that
unavoidable reasons. case the defendant has right to begin.
Court may adjurn hearing - Rule-1 Part to appear before other witness -
The court may, if sufficient cause Rule-3A
is shown, at any stage of the suit grant Where a party himself wishes to
time to any party and may from time to appear as a witness, he shall be
time adjurn the hearing of the suit for examined before any other witness on his
reasons to be recorded. behalf has been examined.
Provided that no adjurnment shall Recording of evidence- Rule-4
be granted more than 3 times to a party Oral evidence of witness can be
during hearing of the suit. recorded by the Court Commissioner. The
Cost of adjournment- Court Commissioner may also record
While granting an adjurnment, the remarks respecting demeanour of
court shall, direct the party seeking and witnesses. The report of the commissioner
adjournment to pay costs to the opposite shall be submittted to the court which shall
party. from part of the record of the suit.
When adjournment may be granted-
 ORDER-XIX on some further day after giving due
AFFIDAVITS -SEC.30(C) notice to the parties or their pleaders.
Essentials of Affidavits - Provided that where the judgment
(1) It must be a declaration made by a is not pronounced at once, it must be
person. pronounced within 30 days from the date
(2) It must relate to facts and not on which hearing is completed, but where
inferences it is not practicable to do so, the court
(3) It must be in writing shall fix a further day which shall not be
(4) It must be in the first person; and beyond the 60 days from the day on which
(5) It must have been sworn or affirmed hearing is concluded.
before a Magistrate or any other Provided further that where a
authorised officer. judgment is not pronounced within 60
Evidence on affidavits - Rule-1 days, the court shall record the reasons
Rule one empowers the court to for such delay and shall fix a further day
make an order that any particular fact may on which judgment will be pronounced
be proved by affidavit, subject, however, and due notice of such date shall be given
to the right of the opposite party to have to parties or their pleader.
the deponent produced for cross- Drawing up of decree - Rule-6A
examination. A decree should be drawn up
On the application of either party within 15 days from the date of the
the court may order the attendance for judgment.
cross-ex. of the deponent.
Matters to which affidavits to be ORDER-XXI
confined-Rule-3 Important rules of
Affidavits should be confined to 0rder. 21:- Rules:- 2, 10, 11, 15, 17,
such facts as the deponent is able to 18 (Example of cross decree), 26. (th)
prove to his personal knowledge, except
32, 33, 39, 46A (Garnishee Order),
on interlocutory applications on which
46A- I , 53, 58, 59,
statements of his belief may be admitted
68-69, 77, 84 (Re sale ) 97, 105, 106
where an averment is not based on
personal knowledge the source of
Execution of Decrees and Orders
information could be clearly disclosed.
Order-21 is the biggest order in CPC
ORDER-XX
which contains 106 Rules in it.
Judgment and Decree
Modern of paying money under decree -
Sec-33
Rule-1 -
Judgment when pronounced - Rule-1
All money payable under a decree
After the hearing has been
shall be paid as follows, namely-
compleded the court shall pronounce the
judgment in open court, either at once or
(1) By deposit into the court whose duty it and 6 weeks if the decretal money is more
is execute the decree, or sent to that court than 2000 Rs but not exceeding 5000 Rs.
by postal money order or through a bank; No j.d. to be detained if the
or decretal money is less than 2000 Rs.
(2) Out of Court, to the decree holder by (2) Decree for specified movable
postal money order or through a bank or property- Rule-31
by any other mode wherein payment is Where the decree is for any
evidenced in writing; or specific movable property, it may be
(3) Otherwise, as the court which made executed as follows -
the decree, directs. (a) by the seizure of the movable property
Where any payment is made under and by the delivery of such property to
clause (1) or (3) above, the judgment the d. holders; or
debtor shall give notice thereof to the (b) by the detention in civil prison of the
decree-holder either through the court or j.d., or
directly to him by reg. post, (c) by the attachment and sale of his
acknowledgement due. property; or
Payment out of court to decree holder- (d) by both.
Rule-2 (3) Decree for specific performance of
Where any money payable a contract, or for R-52 restitution of
decree is paid out of court or otherwise conjugal right, or far on injunction-
adjusted to the satisfaction of the decree In case of restitution for conjugal
holder, the decree-holder shall certify such rights- decree may be enforced by the
payment or adjustment to the court whose attachment of his property.
duty it is to execute the decree and the In case of specific perforance of
court shall record the same accordingly. contract or far an injunction- decree may
MODE OF EXECUTION be enforced by the detention of j.d. in civil
(1) Decree for payment of money - prison or by attachment of his property or
Rule-30 by both.
Every decree for the payment of (4) Decree for immovable property-
money may be executed as follows- Rule-35-
(a) by the detention of j.d. in Civil prison; Where a decree is for the delivery
or of immovable property, possession thereof
(b) by the attachment and sale of his shall be delivered, to the decree holder
property, or and if necessary by removing any person
(c) by both bound by the decree who refuses to
Sec.58 states that the j.d. may be vacate the property.
detained in Civil prison up to 3 months, if ORDER-XXII
the decretal money is more than 5000 Rs, Death, Marriage and Insolvancy of
Parties-
 Death of any party Where there is no legal representative -
(Rules 1-6) Rule-4A
No abatement by party's death, if right to Rule-4A lays down that where
sue survives- there is no legal presentative of a party
Rule-1 provides that the death of who has dies during the pendency of the
the plaintiff or defendant shall not cause suit or a legal representative is not found,
the suit to abate if the right to sue the court may on the application of any
survives. party to the suit, by order appoint the
Right to sue survives - In property related Administrator General or an Officer of the
suits the right to sue always survive. Court or such other person as it thinks fit
for eg- suit for pre-emption suit for to represent the estate of the deceased
possession of property. person for the purpose of the suit.
Right to sue does not survive - The right to No abatement by reason of death after
sue does not survive in personal hearing-
grievances. Rule-6 provides that whether right
for eg- Suit for damages for assault, to sue survives or not, there shall be no
personal injury malicious prosecution, abatement by reason of the death of either
defamation, dissolution of marriage, paint party b/w the conclusion of the hearing
a picture, to sing a song. and the pronouncing of the judgment.
Where one of several plaintiffs or Marriage of female
defendants dies and right to sue survives - No abatement by marriage of female
Rule-2 party-
Death of plaintiff - In this circumstances Rule-7 states that the marriage of
the court shall make an entry to that effect a female plaintiff or defendant shall not
and proceed with the suit by the surviving cause the suit to abate. Where the decree
plaintiff or plaintiffs. But sole plaintiff dies is passed against a female defendant, it
and right to sue survives, the court on an may be executed against her alone.
application by the legal representative of A decree in favour of or against a
dec. plaintiff will make him party and wife where the husband is legally entitled
proceed. to the subject matter of the decree or is
Death of defendant - Where one of the liable for debt of his wife may, with the
several defendants dies and the right to permission of the court, be executed by or
sue survives against the surviving against him.
defendant or defendants, or where sole Effect of abatement or dismissal
surviving defendant dies and the right to Rule-9(1) states that where a suit
sue survives, the Court on an application abates on is dismissed for the non-
by the legal representatives of the substitution of the legal-representative of
deceased defendant, shall make him a the deceased party, no fresh suit can be
party and proceed with the suit. filed on the same cause of action.
 Rule-9(2) provides that where a institute a fresh suit in respect of the
suit abates or is dismissed U/o-22, the subject matter of such suit or part of claim.
plaintiff or his legal representative may Withdrawal without leave of Court- R-1(4)
apply for an order to set aside the Where the plaintiff-
abatement or dismissal on the ground that (a) abandons any suit or part of claim, or
he was prevented by sufficient cause from (b) withdraw from a suit or part of claim
continuing the suit, if court is satisfied it without permission of court,
may set-aside the abatement or dismissal He shall be liable for such costs as
of suit. the Court may award and shall be
ORDER-XXIII precluded from instituting any fresh suit in
Withdrawal / Compromise and respect of such subject matter or such
adjustment of suits- part of the claim.
Withdrawal of suit- Rule-1 COMPROMISE OF SUIT
At any time after the institution of a (Rules-3, 3A & 3B)
suit, the plaintiff may as against all or any Rule-3 of O-23 lays down that-
of the defendants abandon his suit or (i) where the court is satisfied that a suit
abandon a part of his claim. has been adjusted wholly or in part by any
Provided that where the plaintiff is lawful agreement in writing and signed by
a minor etc., neither the suit nor any part the parties; or
of the claim shall be abandoned without (ii) where the defendant satisfies the
the lave of court. plaintiff in respect of the whole or any part
An application for leave under the of the subject matter of the suit,
above proviso shall be accompanied by The court shall record such
an affidavit of the next friend and the agreement, compromise or satisfaction
pleader to the effect that the proposed and pass a compromise decree
abandonment is for the benefit of the accordingly.
minor etc. Bar to suit - R-3A
Withdrawal with leave of court R-1(3) No suit shall lie to set aside a
Where the court is satisfied- decree on the ground that the compromise
(a) that a suit must fail by reason of some decree is not lawful.
formal defect (want of statutory notice Sec.96(3) provides that no appeal
U/s-80, insufficient c.f.) shall lie against a compromise decree.
OR Compromise in representative suit - R-3B
(b) that there are sufficient grounds for No agreement or compromise in a
allowing the plaintiff to institute a fresh representative suit can be entered into
suit on subject matter of suit or part of without the leave of the Court. Before
a claim. granting such leave notice to the persons
it may grant the plaintiff permission to interest should be given by the Court O-1,
withdraw from such suit with liberty to R-8.
 ORDER-XXVI been appointed by a court, the age of
COMMISSIONS majority is 21 years.
Sections-75-78 deal with the powers of Minor to sue by next friend - Rule-1
the Court to issue commissions and the Every suit by a minor shall be
detailed provisions have been made U/O- instituted in his name through a person
26. The power of the court to issue who shall be called the next friend of the
commissions is discretionary and can be minor.
exercised by the Court for doing full and Rule-2 states that where the suit is
complete justice of parties. instituted without next friend, the plaint will
It can be exercised by the Court on be taken off the file on application of the
an application by a party to a suit or of its defendant. (not dismiss).
own motion (suo motu). Rule-2A states that where suit is
Persons for whose examination instituted on behalf of the minor by his
commission may issue - next friend, the court may, either of its
Any court may in any suit issue a motion or on the application of any
commission for the examination of- defendant, and for reasons to be
(i) any person resident within the local recorded, order the next friend to give
limits of its jurisdiction who is exempted security for the payment of all costs
under this code to attend it; or incurred or likely to be incurred by the
(ii) Who is from sickness or infirmity defendant.
unable to attend it; or Guardian to be appointed by Court for
(iii) any person resident beyond the local minor defendant-
limits of its jurisdiction; or Rule-3 provides that where a suit
(iv) any person in the service of Govt. who is instituted against a minor, the court
cannot attend without detriment to the shall appoint proper person to be guardian
public service. for the suit for such minor.
ORDER-XXVII An appointment for guardian shall
Suit by or against Govt. or Public be made upon application in the name
Servant. and on behalf of the minor or by the
Sec-Sections 79-82 plaintiff.
ORDER-XXXII Such appointment shall continue
Suits by or against minors and persons throughout all the proceedings including
of unsound mind an appeal or revision in execution
Def. of minor - proceedings unless it is terminated by
A minor is a person who has not retirement, removal or death of such
attained the age of 18 years. But in the guardian.
case of the minor of whose person or Decree against minor - Rule-3A
property a next friend or guardian has A decree passed against a minor
without appointment of Nex friend or
guardian is null and void. But a decree place and giving security for the costs
passed against a minor can not be set already incurred.
aside on the ground that the next friend or Removal of next friend - Rule-9
gaurdian had an interest in subject matter Upon application made on behalf
of the suit adverse to that of the minor. But of the minor or by a defendant for his
the fact that by reason of such adverse removal the court may remove the next
interest of the next friend or guardian, friend, if it satisfied that-
prejudice has been caused to the interst of (a) his interest is adverse to that of the
the minor, shall be a ground for setting minor, or
aside the decree. (b) he is so connected with a defendant
Who may be appointed as guardian or that it is unlikely that the minor's interest
next friend - R-4 will be property by him; or
Any person who has attained (c) he does not discharge his duty; or
majority and is of sound-mind, may act as (d) he ceases to stay in India during
a guardian or next friend, provided his pendency of the suit; or
interest is not adverse to that of the minor. (e) there is any other sufficiently justifiable
Any person who is not opposite cause
party in the suit and who gives consent in When minor attaining majority-Rule-12
writing to act as a guardian or next friend. On attaining the age of majority a
In the absence of a fit and witting minor plaintiff shall effect whether he will
person to act as guardian, the court may proceed with the suit for this he has to
appoint any of its officers to be such apply for an order discharging N.F. and
guardian. leave to proceed in his own name.
Agreement or compromise by N. F. or ORDER=XXXIII
Guardian- R-7 Suits by indigent persons - (Pauper
Proviso of R-1, of O-23- No next suits forma pauperis suits)
friend or guardian shall, without the leave Generally, a plaintiff suing in a
of the court, enter into any agreement or court of law is bound to pay court fees
compromise on behalf of the minor in prescribed under the Court Fees Act at
reference to the suit. the time of presentation of plaint. But a
If any such agreement or person may be too poor to pay the
compromise has been entered into, requisite court fees. This Order-33
without the leave of the Court, It shall be exempts such person from paying the
voidable against all parties other than court fees at the first instance and allows
minor. them to institute suits without payment of
Retirement of next friend - Rule-8 requisite court fees.
Unless otherwise ordered by the Who is an indigent person?
Court, a next friend shall not retire without Order -33, Expl.-I of Rule-1
first procuring a fit person to be put in his A person in an "indigent person" -
(i) if he is not possessed of sufficient Proviso states that where there are
means to enable him to pay the fee more plaintiffs than one it can be
prescribed by law for the plaint in such presented by any of them.
suit; or Rejection of application - Rule-5
(ii) where no such fee is prescribed, The court shall reject an
when/if he is not entitled to property worth application for permission to sue as an
one thousand rupees. indigent person in the following cases-
In both the cases, the property (1) where the application is not framed
exempt from attachment in execution of a and presented in the manner prescribed
decree U/S-60 and the subject matter of by Rules-2 and 3; or
the suit shall be excluded. (2) where the applicant is not an indigent
Expl.-II enacts that the property person; or
acquired by the applicant after the (3) where he has, within two months
presentation of the application for before the presentation of the application
permission to sue as an indigent person, dispose of any property fraudulently or in
and before the decision of the application, order to get permission to sue as an
shall be taken into account in considering indigent person; or
the question whether or not the applicant (4) where his allegations do not show a
is an indigent person. cause of action; or
Contents of application - Rule-2 (5) where the suit appears to be barred by
Every application for permission to law; or
sue as an indigent person shall contain- Where any other person has
(1) the particulars required in regard to entered into an agreement with him to
plaints in suits. finance the litigation.
(2) a schedule of any movable or Inquiry into the means of an indigent
immovable property belonging to the person -R-1-A
applicant with the estimate value thereof; Every enquiry into the question
and whether or not a person is an indigent
(3) signature and verification as of shall be made, in the first instance, by the
pleading. Chief Ministerial Officer/Clerical Staff of
Presentation of application - Rule-3 the court. The court may adopt the report
The application shall be presented of such officer or may itself make an
to the Court by the applicant in person, enquiry.
unless exempted by the Court in such Procedure when permission is granted -
case the application may be presented by Rules-8, 9A
an authorised agent who can answer all Where an application to sue as an
material questions relating to the indegent person is granted, it shall be
application. numbered and regd and shall be deemed
the plaint in the suit and shall proceed in
the ordinary manner, except that the State Govt. from the estate of the
plaintiff will not have to pay court fees or deceased.
process fees. Recovery of amount of court-fees-Rule-14
Rule-9A states that where the Where an order is made under
indegent person is not represented by a Rule-10, 11 or 11A, the Court shall
pleader, the court may assign a pleader to forthwith cause a copy of the decree or
him. order to be forwarded to the Collector who
Revocation/withdrawal of permission- may recover such amount of court fees
Rule-9 specified therein from the person or
The Court may, on an application property liable for the payment as if it were
by the defendant or by the Govt. Pleader, an arrear of land revenue
revoke permission granted to sue as an ORDER-XLIV
indigent person in the following cases- Appeal by indigent person-
(1) where he is guilty of vexations or Any person who is entitled to
improper conduct in the course of the prefer an appeal, who is unable to pay
suit;or court fees an memorandum of appeal may
(2) where his means are such that he apply to allow him to appeal as an indigent
ought not to continue to sue as an indigent person.
person; or The necessary enquiry as
(3) where he has entered into an prescribed in Order-33 will be made
agreement under which another person before granting or refusing the prayer.
has obtained interest in sub-matter. But where the applicant was
Procedure where i.p. succeeds-Rule-10 allowed to sue as an indigent person in
Where the plaintiff succeeds in the the trial court, no fresh inquiry shall be
suit, the court shall calculate the amount necessary if he files an affidavit that he
of court fees and such amount shall be continues to be an indigent person.
recoverable by the State Govt. and shall ORDER-XXXV ; SEC-88
be a first charge on the subject matter of Plaint in Interpleader suit-
the suit. Procedure for interpleader suit- Order-
Procedure where i.p. fails - Rule-11 35, Rules-1
Where the plaintiff fails by his own In every suit of interpleader the
mistake in the suit, the Court shall order plaint shall, in addition to the other
the plaintiff or any person added as co- statements necessary for plaints, state-
plaintiff to pay the court fees. (a) that the plaintiff claims no interest in
Rule-11A provides that where the the subject matter in dispute other than
suit of i.p. abates by reason of his death the charges or costs;
the court shall order that the amount of (b) the claims have been made by the
court fees shall be recoverable by the defendants severally ; and
(c) that there is no collusion b/w the (b) Suits in which the plaintiff seeks only to
plaintiff and any of the defendants. recover is debt or liquidated demand
Rule-2 states that the court may (fixed sum) in money payable by the
order the plaintiff to deposit the amount or defendant arising-
place the property in the custody of the (i) on a written contract or
court and provide costs incurred by him by (ii) on an enactment , or
giving him a charge on the they claimed. (iii) on a guarantee
Rule-4 provides that at the first ORDER-XXXVIII
hearing the court may declare that the Arrest before Judgment : R-1
plaintiff is discharge from all liability award Where at any stage of the suit,
him costs and dismiss him from the suit. other than a suit of the nature referred to
Who can file interpleader suit - Rule-5 in Sec.16(a)-(d), the court is satisfied, by
An agent cannot sue his principle affidavit or otherwise- that the defendant,
or a tenant his landlord for the purpose of with intent to delay the plaintiff, or to avoid
compelling him to enterplead with persons any process of the Court to abstract or
other than persons claiming through such delay the execution of any decree that
principals or landlords. may be passed against him-
The reason for the rule is given (a) has absconded or left the local limits of
U/s-116 IEA that ordinarily an agent or a the jurisdiction of the court; or
tenant cannot dispute the title of his (b) is about to abscond or leave the local
principle or landlord during the limits of the jurisdiction of the Court; or
subsistence of the agency or tenancy. (c) is about to leave India; or
ORDER-XXXVII (d) has disposed of or removal from the
Summary Procedure local limits of the jurisdiction of the court
Courts which follow summary procedure- his property or any part thereof,
Rule-1(1) provides that the the court may issue a warrant to arrest the
following courts can follow summary defendant and bring him before the court
procedure- to show cause why he should not furnish
(a) High Cours, City Civil Courts and Court security for his appearance.
of small causes Arrest on insufficient grounds - Sec.-95
(b) Other Courts. On application by the defendant,
Case in which summary procedure the Court may order the plaintiff to pay as
followed- compensation such amount not exceeding
Rule-1(2) provides that this 50,000/- Rs. for expense and injury to
provision shall apply to the following defendant.
classes of suits, namely- Attachment before Judgment
(a) suits based upon bills of exchange, Rule-5 provides that where, at any
hundis and promisory notes; stage of a suit, the court is satisfied, by
affidavit or otherwise, that the defendant
with interim to obstruct or delay the wrongfully sold in the execution of a
execution of any decree that may be decree; or
passed against him,- (2) where the defendant threatens, or
(a) is about to dispose of the whole or any intends to remove or dispose of his
part of his property, or property with a view to defrauding his
(b) is about to remove the whole or any creditors ;or
part of his property from the local limits of (3) where the defendant threaten to
the jurisdiction of the court. disposses the plaint or otherwise cause
The court may direct the defendant, within injury him in relation to any property in
a time to be fixed by it, either to furnish dispute in the suit; or
security to produce and place at the (4) where a defendant is about to commit
disposal of the Court the said property or breach of contract, or other injury of any
to appear and show cause why he show kind; or
furnish security. (5) in interest of justice.
Rule-6 provides that where the Interim Injunction on insufficient
defendant fail to furnish the security grounds-Sec.95
required or fails to show cause why he Compensation up to Rs.50,000/-
should not furnish security U/R-5 the court Interlocutory orders
may order that the property specified be Rules 6-10 of Order-39 provide for
attached. making certain interlocutory orders.
Attachment on inusufficient grounds- The court may an application of
Sec-95 any party to a suit, order the sale of any
On application of defendant the movable property which is the subject
Court may order the plaintiff to pay matter of such suit or attached before
compensation not exceeding Rs.50,000/- judgment in such suit, which is subject to
ORDER-XXXIX speedy and natural decay or for any just
Temporary/interim injunctions and sufficient cause desirable to be sold
Temporary injunction are issued by at once.
the court during the pendency of the Notice - To Opposite Party-
suit/proceedings. It is a judicial process Before making such order and
whereby a party is required to do, or to order for interim injunction the court shall
refrain from doing an particular act. give notice to the opposite party except
Grounds- Rule-1 where it appears that the object of making
Temporary injunction may be such orders would be defeated by the
granted be a court in the following cases- delay.
(1) where any property in dispute in a suit Difference between interim order
is in danger of being wasted, damaged or and interlocutory order
alienated by any party to the suit, or
 Interim order affects the rights of Rule-1(1)(a) and Sec-94(d) -
parties i.e. defendants order not to Where it appears to the court to be just

construct in a disputed land (order 39 and convenient it may appoint a receiver.

The appointment of receiver is
rule 1)
discretionary power of the court.
Whereas interlocutory order affects to
When collector may be appointed as
the suit property
Receiver-
Rule-5 provides that where the
Example:- Court can order to sell a property is land paying revenue to the
mango and deposit the proceed in a court Government, or land of which the revenue
(0rder 39 R–5). has been assigned or redeemed and the
Injunction court considers that the interests of those
----------------- concerned will be promoted by the
Injunction is based on maxim “Equity management of the collector, the court

act in personam” so order of injunction may, with the consent of the collector
appoint him to be receiver of such
U/O 39 Rule 1 binds a party only and
property.
not his property so if an injunction has
been granted against a land and the
defendant / Owner has transferred
(Sale or mortgage) then such transfer is
valid. The defendant is punishable U/O
39 R 2A for disobedience for
injunction.

ORDER-XL
Appointment of receiver-
A "receiver" is 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 either party
should collect or receive, or for enabling
the same to be distributed among the
person entitled.