basavashree.

in

Basavashree College of Law

231–293 minutes

CIVIL PROCEDURE CODE

No Particulars
UNIT - I
1 C P C introduction
Distinction between procedural law and substantive law history of the code,
2
extent and its application.
3 Definition suit
4 Jurisdiction of the civil courts kinds of jurisdiction
5 Bar on suits
6 Suit of civil nature (section 9)
7 Doctrine of Res subj judice and res judicate (sec 10,11 and 12)
8 Foreign Judgment (Sec 13 - 14)
9 Place of suits (sec 15 to 20)
10 Transfer of cases ( Sec 22 to 25)
UNIT - II
Institution of suits and summons (sec 27,28,31 & 05)
11
Interest and costs (sec 34, 35, 35A, B)
12 Pleading
13 Fundamental rules of pleadings
14 Plant and written statement return and rejection of plaint
15 Defences
16 Set off counter claim parties to the suit (order 1)
17 Joinder
18 Mis Joinder and non-joinder of parties
19 Mis joinder of causes of action
20 Multifariousness
UNIT - III
21 Appearance and examination of parties (09, 018)
22 Discovery
23 Inspection and production of documents (11 & 13)
24 First hearing and framing of issues (10 & 14)
25 Admission and affidavit (12 & 19)
26 Adjournment (17)
27 Death, Marriage - Insolvency of the parties (022)
28 Withdrawal and compromise of suits (23)
29 Judgment and Decree (20)
30 Execution (sec B 30 - 74, 021)
31 General principal of execution
32 Power of executing court
33 Transfer of decrees for execution
Mode of Execution
a) Arrest and detention
34
b) Attachment
c) Sale
UNIT - IV
35 Suits in particular cases ; suits by or against Government (sec - 79 to 82-27)
36 Suits by aliens and by or against foreign Rulers ambassadors (sec 85 to 87)
37 Suits relating to public matters ( sec 91- 93)
38 Suits by or against firms (30)
39 Suits by or against minors and unsound person (32)
40 Suits by indigent persons (33)
41 Inter pleader suit ? (sec 88, 35)
42 Interim order commissions (sec 75, 26)
43 Arrest before judgment and attachments before judgment (38)
44 Temporary Injunctions (39)
45 Appointment of receivers (40)
46 Appeals (SS 90 to 109, 41,42,43,45)
47 Reference - Review and revision (SS 113, 114, 115, 046)
48 Caveat (Sec 144 A)
49 Inherent powers of the court ( SS 148, 149, 151)
UNIT - V
50 Civil Rules of practice and limitation Act

UNIT - I

1.1 JUDGMENT AND DECREE:-

Section 2(2) of the Code defines the term decree so as to mean the
formal expression of an adjudication which, as regards the court expressing it,
conclusively determines the rights of the parties with regard to all or any of the
matters in controversy, such adjudication being in a suit.
Essentials of a decree:-

1) There must be a formal expression of adjudication. All requirements of

form must be complied with. The term formal expression of adjudication
connotes the adjudication, viz., granting or refusing any of the relief's claimed
in the plaint and embodied in a formal declaration. An order clothed in the form
of a decree will not make it a decree. If a decree has not been formally drawn up
in terms of the judgment, no appeal lies from the judgment.

2) The application must have been given in a suit. Every suit is commenced
by filing a plaint in a civil court. There cannot be a decree unless the suit has
been filed. A decree is an indispensable part of a suit carried out to its logical
conclusion. Rejection of an application for leave to sue in forma pauperis is not
a decree within the meaning of the term for there is no plaint unless such
application is granted and there is consequently no decision in a suit.

3) It must have determined the rights of the parties with reared to all or any
of the matters in controversy in the suit. An order of dismissal for default of
appearance is no determination of the rights of the parties and, therefore, is not a
decree.

4) Such determination must be of a conclusive mature. The decision must

be4 one which is complete and final as regards the courts which passes it.
Where, therefore, the question sought to be adjudicated is left open, there is no
decree. The question that falls for determination in such cases is whether the
decision is a final one in its essence or subsequently. If it b3e so, the
adjudication is a decree.

Kinds of Decree

There are two kinds of decree

1) Preliminary:-

A decree is preliminary when further proceedings have determination

have to be taken before the suit can be completely disposed of. Such a decree
determines the rights of the parties with regard to some or one of the matters in
controversy in the suit but does not completely dispose of the suit, such decrees
are passé in suits for possession and manse profits, in administration suits, in
pre-emotion suits, in suits for dissolution of partnership, in accounts between
the principal and agent, in partition suits, mortgage suits, in suits for
foreclosure, in redemption suits, in suits for sale, etc.

2) Final Decree:-
 The function of the final decree is merely to restate and apply with
precision what the preliminary decree has ordained. The decrees are in the same
suit and if the preliminary decree is set aside, the final decree is automatically
superseded.

A preliminary decree ascertains what is to be done, while the final

decree states the result achieved by means of the preliminary decree. The
preliminary decree is not dependent on the final one, but the latter is really
dependent on and subordinate to the former, which is not extinguished by the
passing of the final decree.

Whether a decree is final or preliminary or partly preliminary and

partly final has to be determined only by reference to the decree itself and not
by the description given to the decree by the parties.

Where preliminary and final decrees are necessary the preliminary

decree declares the rights of the parties and the final decree carries into
fulfillment the preliminary decree and divides the properties specifically by
metes and bounds in terms of the rights declared under the preliminary decree
thereby completely disposing of the suit.

Orders

Section 2(14) of the code lays down that order means the formal
expression of any decision of a civil court which is not a decree.

Order amounting to decree:-

1) An order rejecting a plaint the definition of decree provides that the

rejection of a plaint shall be deemed to be a decree.

2) An order dismissing a suit for non-payment of court-fee or for failure to

pay additional court-fee demanded.

3) An order for the dismissal of an appeal for non-payment of court-fee

demanded after adjudication as to classification of a suit.

4) An order discharging some of the defendants for want of cause of action.

5) An order rejecting prayer for a final decree for foreclosure.

6) An order rejecting a plaint for insufficiency of stamp.

7) An order discharging defendants for failure of the plaintiffs to furnish

particulars, as it amounts either to rejection of a plaint or dismissal of a suit.
8) The decision of a district court on appeal that the court below has no
jurisdiction.

9) Where one issue is settled and the case remanded to the lower court for
the determination of another issue.

10) An order of abatement of a suit.

11) An order dismissing an application by a legal representative to be brought

on the record.

12) An order staying execution of a decree.

13) An order dismissing cross-examination.

Orders not amounting to decree:-

The following are the orders which do not amount to a decree

1. An order refusing stay

2. Remand under Section 151 or an order for amendment under that section.
3. An order rejecting an application for leave to sue in forma pauperis
4. An order refusing leave to institute a suit for accounts of a religious
endowment.
5. An order on a petition to appoint a new member on the committee of a
religious endowment.
6. An order under the Indian Trusts Act dismissing an application for the
remove of a trustee
7. An order of an appellate court returning a memorandum of appeal to be
presented to the proper court
8. An order rejecting memorandum of appeal for default in payment of
court.
9. An order overruling a plea against the maintainability of a suit.
10. An order of the District Judge setting aside the rejection of a plaint.
11.Decision in plaintiff's favour as to his locus standi to sue.
12. An order appointing a commissioner to take accounts
13.An order directing an execution case to be dismissed for non-prosecution.
14.Dismissal for non-compliance with an order of the court, of the plaintiff
can file a fresh suit.
15. An order of the High Court dismissing an appeal for failure on the part of
the appellant to deposit printing charges.
16.An interlocutory order is execution deciding a point of law arising
incidentally.
Interlocutory orders:-

Interlocutory orders can amount to a decree under section 2(2) if they

are sufficient to dispose of the suit as a whole, no matter whether they are
passed in suits or execution proceedings. An order, rejecting the plea of
jurisdiction or limitation cannot amount to a decree. The decree does not
include interlocutory decision on every controversial point, though embodied in
a separate order, unless such interlocutory order which does not finally settle the
suit as far as the court making the order is concerned and which cannot at that
stage be drawn up in the form of a decree will not be a formal expression of
adjudication.

Decree and Order distinguished:-

1. Every decree is appealable. First appeal invariably lies from a decree

unless it is expressly provided in the body of the code or by any other law of the
time being on force.

Ex: It is expressly provided in section 96(3) that no appeal shall lie from a
decree passed by the court with the consent of the parties. But every order is not
appealable.

2. A second appeal lies to the High Court in the case of decree if there is
some substantial question of law involved therein. No second appeal lies at all
even in the case of appealable orders.

3. A decree is an adjudication which conclusively determines the rights of

the parties with regard to all or any of the matters in controversy; an order may
or may not finally determine the rights of the parties.

4. A decree may be preliminary or final, but there is no such distinction in

an order.

5. A decree originates from a suit commenced by presentation of a plaint.

An order may not necessarily originate from a suit; it generally arises from a
proceeding commenced on an application.

6. In every suit there is one decree unless in suits for possession and mesne
profits, administration or pre-emption suits, suits for dissolution of partnership
or mortgage suits the code permits two decrees, one preliminary and the other
final; in the case of a proceeding or a suit there is no restriction as to the number
of orders that may be passed.

1.2 Jurisdiction of courts:-

 Jurisdiction can be classified into three categories

1. Jurisdiction over the subject-matter:-

Certain courts are precluded from entertaining suits of particulars classes by

statute. Thus a small cause court can try only such suits as a suit for money due
on account of an oral loan or under a bond of promissory note, a suit for price of
work done, etc., but it has no jurisdiction to try suits for specific performance of
contracts, for dissolution or partnership, for an injunction, suits relating to
immovable property, or for defamation.

2. Local or territorial jurisdiction:-

Every court has its own limits, fixed by the government, beyond which to
cannot exercise its jurisdiction. Thus the District Judge is in charge of the
district and cannot exercise his powers beyond that district. The Munsif West
and Munsif East are in charge of the areas assigned to them. The High Court has
jurisdiction over the whole territory of the state within it is situate.

3. Pecuniary jurisdiction:-

Throughout India there are a large number of civil courts of different grades
giving jurisdiction to try suits or hear appeals of different amounts or value.
Some of these courts have unlimited pecuniary jurisdiction. Thus the High
Court and the courts of the District Judge and the Civil Judge have unlimited
pecuniary jurisdiction other courts have only a limited pecuniary jurisdiction.

1.3 Suit of Civil Nature

Section 9 of the Code provides that civil in nature suits. it confers the
power upon the civil court jurisdiction to try a suit of civil nature. The civil
court's power is restricted only to suits or disputes of civil nature. Followings
are the civil in nature suits:

1. Right to religious honour:-

A suit does not lie for mere honour or dignity unconnected with fees, profits or
emoluments. A suit for declaration and injunction in respect of a right to be
carried in a palanquin on certain days through Public Street is not maintainable.
Courts will not decide disputes as to precedence or privilege between purely
religious functionaries.

Right to honours unconnected with an office cannot form the subject-

matter of a suit.
2. Right to worship:-

A suit to establish the right to worship in a temple according to the worshipper's

belief is a suit of a civil in nature.

3. Right to take out procession:-

The right to take out a procession through the public streets is a civil right, and a
suit will lie to enforce such a right in a civil court.

4. Right to share in offerings:-

Right to share in temple offerings is a civil right. A suit by a priest to recover

fees received by an unauthorized person is a suit of a civil nature cognizable by
a civil court.

5. Suit in respect of voluntary offerings:-

A suit in respect of voluntary offerings, i.e., for recovery of emoluments

received by the defendants for officiating as purohits at marriage and other
ceremonies conducted by them in honours of Vysysa belonged to the plaintiff is
not maintainable.

6. Right to religious office:-

There can be no office without duties attached to it. The right to hold a certain
office in a certain place at certain season of the year confers a legal character. A
hereditary priest, cannot compel his yajman to accept his service. Right to office
of a hereditary priest to which fees are attached is property and a suit is
maintainable.

7. Company:-

If a company terminates the appointment of the managing agents by an ordinary

resolution contrary to the articles of association, the matter is not merely
concerning the internal management of the company and the civil court can
grant a declaration to the effect that the resolution is invalid.

8. Suits barred on grounds of public policy:-

They are suits the cognizance of which is impliedly barred on the grounds of
public or state policy. Suits by a witness to recover money agreed to be paid to
him in consideration of his giving evidence, suits on agreement void on grounds
of public policy, e.g., rent of lodgings knowingly let to a prostitute, suits to
enforce an agreement to suppress a criminal prosecution, suits based on illegal
or unlawful contracts, etc. are not maintainable.

9. Suits for restitution of conjugal rights by a Christian:-

Where the partners are Christians, a decree for restitution of conjugal rights can
be granted under the provisions of a special statute, viz., the Indian Divorce Act,
1869, governing the procedure by the District Court or the High Court on the
petition of the husband or wife. The general remedy of a suit in the ordinary
civil courts as provided by Section 9 of CPC is impliedly barred by the Indian
Divorce Act.

10. Arbitration matters:-

All kind of Arbitration matters are decided by civil court.

11. Dispute between employer and employee:-

The principles with regard to jurisdiction of civil court in relation to dispute

between employer and employee can be summarized as under. Where reliefs are
claimed on the basis of the general law of contract, a suit is not barred even
though such a dispute may also be an industrial dispute under Industrial
Disputes Act.

In case of violation of standing orders an employee may approach

either before the forums created by Industrial Disputes Act or the civil court.
But where dispute involves recognition, observance or enforcement of any
rights or obligations created by the Industrial Disputes Act 1946, the only
remedy is to approach the forums created by the Industrial Dispute Act.

12. Suits by Hindu wife for perpetual injunction restraining her husband
from contracting second marriage:-

A suit brought by a Hindu wife fro an injunction perpetually restraining her

Hindu husband from contracting a second marriage falls within Section 9 of
CPC., and is cognizance is not expressly or impliedly barred by any provisions
in the Hindu Marriage Act.

13. Revenue matters:-

All type of revenue matters decided by the civil court.

14. Service matter:-

 When relevant service Rules neither expressly nor by implication take
away jurisdiction of civil court to deal with service and matter was litigated in
civil court for more than five years, it is not proper to hold in second appeal that
the civil has no jurisdiction.

1.4 Res Sub- Judice - Stay of Suit

Section 10 of CPC says that a suit must be stayed iof the matter
directly and substantially in issue in it is also directly and substantially in issue
in a previous suit that is pending. The criterion for deciding whether the
subsequent suit be stayed or not is whether there is identity of the matters
directly.

Conditions :-

1. A previously instituted suit is pending in a court.

2. The matter in issue in the second suit is also directly and substantially in
issue in a previously instituted suit.

3. The previously instituted suit must be pending in the same court in which
the subsequent suit is brought, or in any other court in India or in any court
beyond the limits of India established or continued by the Central Government
or in the Supreme Court.

4. The court in which the previous suit is pending has jurisdiction to grant
the relief claimed in the subsequent suit.

5. The parties in the two suits are the same.

6. The parties must be litigating under the same title in both the suits.

Different cause of action:-

When earlier suit was institute for recovery of dues payable by

appellant-consignors and later suit by appellants for recovery of goods lawfully
entrusted to and unlawfully detained by respondent carries, the later suit could
not be stayed. The causes of action in both suits are entirely different.

1.5 Res Judicata

The doctrine of Res Judicata is based upon two Roman maxims

1. Nemo debet bis vexari pro uno eteadem cause:-

It means no one shall be vexed twice over for the same cause of action.

2. Interest republicae ut sit finis litium:-

It means that the interest of the state that there should be an end to litigation.

Section 11 of the CPC provides that Res Judicata means

1. Directly and subsequently in issue:-

The matter directly and subsequently in issue in the subsequent suit must be the
same matter which was directly and subsequently in issue, either actually or
constructively, in the former suit. The Res Judicata does not depend on whether
the causes of action in the two suits are identical. Causes of action in the two
suits may be different, but the test is whether the matter directly and
substantially in issue is the same in both suits and whether the parties are the
same or the suit is between parties claiming under them and litigating under the
same title.

2. between the same parties:-

The second essential condition to constitute the bar of Res Judicata is that the
former suit must have been a suit between the same parties or between parties
under whom they or any of them claim. Res Judicata not only affects the parties
to the suit but their privies, i.e., oersons claiming under them. A judgment not
inters partes or in rem is not Res Judicata in a subsequent suit though it may be
received in evidence.

Representative suit:-

Where persons litigate bona fide in respect of a public right or a

private right claimed in common for themselves and others, all persons
interested in such right shall, for the purpose of this section, be deemed to claim
under the person so litigating refers to cases in which a decision in a suit may
operate as res judicatata against persons not expressly named as parties to the
suit, i.e., in a representative suit.

According to order 1, rule 8, of C.P.C. provides that there must be a

suit in which a person claims a right in common to himself and others, though
not governed by order 1, Rule 8 of CPC. If the parties in the subsequent suit can
be said to have been represented by the parties in the former suit, the decision in
the former suit will bind the parties in the subsequent suit. A decree passed
against a shebait or a trustee will also bind his successor. Dismissal of a suit
brought by the managing member of a joint family is a bar to a subsequent suit
by a junior member who had been pro forma defendant in the former suit, in
respect of the same property and on the same cause of action. The son is bound
by the decision against the father.

Waiver of plea of Res Judicata:-

That apart the plea, depending on the facts of a given case, is capable
of being waived, if not property raised at an appropriate stage and in an
appropriate manner. The party adversely affected by the plea of Res Judicata
may proceed on an assumption that his opponent has waived the plea by his
failure to raise the same.

The doctrine of Res Judicata can be applied as between co-defendants

1. There must be a conflict of interest between co-defendants

2. It must be necessary to decide that conflict in order to give the plaintiff
appropriate relief.
3. There must be a decision of the question between the co-defendants.
4. The co-defendants were necessary or proper parties in the former suit.

In Chandu Lal V/S Khalilur Rahman:-

In this case, the doctrine may apply even though the party against
whom it is sought to enforce it, did not in the previous suit think fit to enter an
appearance and contest the question. But to this the qualification must be added
that, if such party is to be bound by a previous judgment, it must be proved
clearly that he had or must be deemed to have had notice that the relevant
question was in issue and would have to be decided.

Conditions to be fulfilled by the co-defendants:-

1. That there was a conflict of interest between defendants.

2. That it must be necessary to decide this conflict in order to give the
plaintiff the relief he claims.
3. That the question between the defendants must have been finally decided,
4. The co-defendants were necessary or proper parties in the former suit.

3. Litigating under the same title:-

The third essential condition to constitute the bar of res judicata is that the
parties must have litigated under the same title in the former suit. The
expression litigating under the same title means litigating in the same capacity.
Thus a suit brought by a person to recover possession from a stranger of math
property claiming it as heir of the deceased Mahunt is no bar to a suit by him as
manager of the math, if the first suit is dismissed on his failure to produce the
succession certificate for the two suits arises under different capacities. It does
not matter if the transfer attacked in one case is a mortgage and in the other case
a gift. All that the phrase litigating under the same title connotes is that the
demand should have been of the same quality in the second suit as in the first.

4. Competency of court to try the subsequent suit:-

The fourth condition is that the court which decided the former suit must have
been a court competent to try the subsequent suit or the suit in which such issue
is subsequently raised. The decisions of the courts of limited jurisdiction shall in
so far as such decisions are within the competence of the courts of limited
jurisdiction, operate as Res Judicata in a subsequent suit although the court of
limited jurisdiction may not be competent to try such subsequent suit in which
such question is subsequently raised.

5. Heard and finally decided:-

The matter directly and subsequently in issue in the subsequent suit

have been heard and finally decided by the court in the first suit.

Illustrations

1. A sued B for rent upon a lease. The l;ease fixed at Rs. 50 per bigha and
contained a clause for the increase or diminution of rent according to area
in actual possession of B. the rent was claimed for 50 big has the area
mentioned in the lease. B's defence was that area in actual possession was
less than 50 bighas.

The court fixed an issue, "was the area in possession of B less than 50 bighas?
The court found that B was in possession of an area more than 50 bighas.

2. A sued for rent of area specified in the lease together with the excess
found to the last suit. B again took the defence that the land in his
possession was less than 50 bighas, and asserted that no decree for excess
could be granted as, it was not awarded in the first suit and, therefore, it
was res-judicata. Held, it was not res-judicata, as rent for excess area was
not in issue in the previous suit.

Issue of fact

A decision on an issue of fact, though erroneous, constitutes res

judicata between the parties in a subsequent suit, if the requisite conditions
prescribed. Issue should be finally heard and decided.
Issue of law

An issue of law may not operate as res-judicata. Two cases may arise:

1. At cause of action in the subsequent suit may be different from that in the
former suit.
2. The cause of action in the subsequent suit may be the same as in the
former suit.

Res-Judicata between co-plaintiffs:-

Just a matter may be res-judicata between co-defendants so it may be

res-judicata between co-plaintiffs also subject to the same conditions which
apply to the case of co-defendants.

Ex: A father brought a suit in behalf of himself and his three minor daughters
from the plaint it appears that there was no conflict between the plaintiffs inter
se in that suit, later on, one of the daughters, sued the father to partition the
property got him in the prior suit. Held that suit was not barred by the prior suit
as the rights between the plaintiffs's inter se were neither necessary nor decided
in the prior suit.

Resjudicata and insolvency proceedings:-

The principle of the section has been applied in insolvency

proceedings. When an official receiver dismissed an application under section
54 of the provincial insolvency Act, 1920, holding that a sale was not a
fraudulent preference, a creditor was debarred by the rule of res judicatra from
applying under section 4 and 56 of the Act to set aside a sale as being a fraud on
creditors. An order winding up a company on the application of a person, who
claims to be a creditor with respect to a specified debt, was held to operate as
res judicata on the question as to the truth and amount of the debt.

Obiter Dictum:-

Where the court expresses its mere opinion on a matter not necessary
for the decision of a case and not arising out of the issues before it, the same
will be regarded as obiter dictum and cannot be said as decision on any issue. It
is well settled that in matters of taxation there is no question of res judicata
because each year's because it determines only the tax for a particular period.

1.6 Foreign judgments:-

 Section 13 of the Act provides that a foreign judgment will operate as
res judicata. It will operate as bar to fresh suit in this country on the same cause
of action. The judgment is to be treated as conclusive with respect to any matter
thereby directly adjudicated upon between the same parties or between parties
under whom they or any one of them claim litigating under the same title.

Exceptions:-

1. Where the judgment has not been pronounced by court of competent

jurisdiction.
2. Where the judgment is not given on merits of the case.

Ex: An ex parte judgment, a judgement on the basis of compromise.

3. Where on the face of the proceedings the judgement appears to be

founded on an incorrect view of the international law.
4. Where the judgement on the face of the proceedings is founded on refusal
to recognize the law of India in cases in which such law is applicable.
5. Where the judgement has been obtained by fraud.
6. Where the judgement sustains a claim founded on a breach of any law in
force in India.

Natural Justice:-

Where the proceedings in which the judgement was obtained has been
opposed to natural justice. The expression natural justice in the clause refers
rather to the form of procedure than to the merits of the particular case. The
mere fact that a foreign judgement is wrong in law does not make it one
opposed to natural justice. There must be something in the procedure anterior to
the judgement which is repugnant to natural justice. A foreign judgement
obtained without notice of the suit to the defendant is country to natural justice.
If a suit instituted in India in the judgement of a foreign court, and the defendant
does not make any objection to the jurisdiction of the foreign court, even though
it has no jurisdiction the defendant will not be allowed to take an objection
when judgement goes against him.

But if he protests against the jurisdiction, and the suit is then

proceeded with against him, the judgement is a nullity and no effect will be
given to it in a suit brought on the judgement. The protest against jurisdiction
must be made at an early stage of the proceedings, hence where no objection to
the jurisdiction was made until the case had reached the stage of appeal, it was
held that there was submission to jurisdiction.

Enforcement of foreign judgement:-

 A foreign judgement may be enforced by proceedings in execution in
certain specified cases only. It can only be enforced by a suit upon a judgement.
If such suit is dismissed no application will thereafter lie to execute the
judgement. The competence of a foreign court is to be decided in accordance
with the principles of international law. No state is bounded under the law of
nation to enforce within its territory the judgement of a foreign tribunal. But
under the English system of jurisprudence such a judgement is enforced on the
principle that where a court of competent jurisdiction has adjudicated that a sum
is due from one person to another a legal obligation arises to pay that sum on
which an action of debt to enforce the judgement can be maintained.

In Sheo Ghalom Sahoo V/S Rahut Hasein:-

In this case where money or movable property has been deposited in

court on behalf of a judgement-debtor in lieu of security, for the purpose of
staying a sale in execution is afterwards confirmed on appeal, neither the
depositor, nor the judgement-debtor, can claim to have such deposit refunded or
restored to him, notwithstanding that the decree-holder has omitted to draw it
out of court for more than three years, and that more than three years have
elapsed since any proceedings have been taken in execution of the decree, and
that the decree for that reason is now incapable of execution.

Presumption as to foreign judgment:-

Section 14 provides that if an Indian court a certified copy of any

foreign judgment is produced, it shall be presumed to be genuine, without
jurisdiction.

Effect and enforcement of foreign judgment:-

On obtaining a foreign judgment the creditor has two remedies open

to him. These are the following remedies:

1. of bringing an action in a domestic tribunal on the foreign judgment.

2. of bringing in a domestic tribunal a suit upon the original cause of action.
A foreign judgment which is conclusive under section 13 can be enforced
in India in the following.

a) By instituting a suit on such foreign judgments. :-

A foreign judgment is enforceable by a suit upon the judgment which creates an

obligation between the parties. Indeed, it shall be conclusive as to any matter
thereby, directly adjudicated upon between the same parties, subject to
exceptions enumerated in section 13 of the code of civil procedure code.
b) By proceedings in execution of the judgment :-

In certain cases mentioned in section 44-A of the code, section 44-A

provides that where a decree has been passed by superior courts in United
Kingdom or in any other reciprocating country, a certified copy of such decree
can be filed in the district courts in India and the decree may be executed as if it
has been passed by the district court.

1.7 Place of suing:-

Sections 15 to 24 determine the forum for the institution of suits in
India. Every suit shall be instituted in the court of the lowest grade competent to
try it. The object of the legislature is that the court of the higher grade shall not
be over-crowded. Section 15 is a rule of procedure only, not of jurisdiction.
Sections 15 to 20 regulate the forum for the institution of suits in India. The
grades of the court are created by the statutory provisions. The word competent
in section 15 of the code means having jurisdiction to try. Jurisdiction had
reference to

1. Subject-matter
2. Parties
3. Particular question which calls for decision
4. Pecuniary value

The jurisdiction of a court to try a suit is of three kinds, those are:

1. Jurisdiction with reference to the nature of the suit.

2. Pecuniary jurisdiction and territorial jurisdiction.

But the exception of certain cases from the cognizance of small causes court
relates to the jurisdiction of courts with regard to the, nature of the suit.

Grades of courts in India:-

Following are the several grades of courts in India.

1. Supreme Court
2. High Courts
3. District courts- they are courts of original jurisdiction for suits if any vale.
4. Courts of the Subordinate judges or civil judges. - Their jurisdiction
extends to all original suits of any value.
5. Courts of the Munsifs or Subordinate judges. - They have only a limited
pecuniary jurisdiction.
Suits to be instituted where subject-mater situate:-

Section 16 to 20 specifies the places where suit is to be instituted

according to the situation of the subject-matter of the suit according to the place
of residence of the defendant or defendants or the place for where the cause of
action wholly or in part arises. The combined effect of the sections 15 to 20 is
that every suit shall be instituted in the court of lowest pecuniary jurisdiction
within whose jurisdiction, either all the defendants or any of them at the
commencement of the suit actually and voluntarily resides or carries business or
personally works for gain. It has been held that the expression carries on
business refers to natural person and not to legal person. Where the arbitrator
held his sittings at Bombay, made awards at Bombay, not part of cause of action
arose at Bombay. Suit was brought on the ground that union of India carries on
business at Delhi; it was held that Delhi court had no jurisdiction.

The following three conditions should concur namely:

1. The agent must be a special agent who attends exclusively to the business
of the principal and carries it on in the name of the principal and not a general
agent who does business for any one that pays him.

2. The person acting as agent must be an agent in the strict sense of the term.
The manager of a joint Hindu family is not an agent within the meaning of the
condition.

3. To constitute carrying on business at a certain place, the essential part of

the business must take place on the place.

According to section 20 of the code which provides that other suits to

be instituted where, defendants reside or cause of action arises. Such suits are to
be instituted in a court within local limits of whose jurisdiction:

a) The defendant, or each of the defendants where there are more than one,
at the time of the commencement of the suit, actually and voluntarily resides, or
carries on business, or personally works for again.

b) Any of the defendants at the commencement of the suit actually and

voluntarily resides, or carries on business or personally works for gain provided

1. Leave of court is obtained.

2. The defendants, who do not reside or carry on business or personally

works for gain, acquiesce in such institution.
3. The cause of action wholly or partly arises.

A person permanently residing at place A and having a temporary residence at

B, shall be deemed to reside at both places in respect of any cause of action
arising at B, his temporary residence.

Ex: A is a tradesman in Calcutta. B carries on business in Delhi. B by his agent

in Calcutta buys goods of A and requests A to deliver them to the East India
Railway company. A delivers the goods accordingly in Calcutta; A may sue for
the price of the goods either in Calcutta where the cause of the action arises or
in Delhi, where B carries in business.

Place of suing

There is an apparent distinction between the place where any money

is, in fact, paid and where it becomes payable. If from the fact that payment is
made at a place, it cannot necessarily follow that the amount was payable there.
The actual payment by itself will not be decisive for determining the place of
the actual of the cause of action.

In Pream Nath V/S Dandoomal Rikhiram

In this case as to whether money is payable expressly or impliedly

under a contract at a particular place has also been considered by a bench of the
High Court in the case of Badiyanath Andal V/S The Coal Purchaser and
Inspection Agency (p.) Ltd. In a case where there is no express agreement
between the parties with respect to the place of payment, as in that event, great
uncertainty may prevail and payments made at different places will provides
shifting forums for a suit at the option of the payee.

Suit for damages for breach of contract

In suits for relief for breach of contract the cause of action consists of:

1. The making of the contract

2. The rights and obligations flowing the contract
3. The infringement of the right and the breach of the obligations arising
under the contract
4. The injury suffered by the plaintiff.

The cause of action consists of:

a) The making of the contract

b) Of its breach resulting in injury to the plaintiff

It is clear that the suit may be filed either at the place where:

1. The contract was made

2. It should have been performed and the breach occurred

Where the contract is both made and broken at one place, the whole cause of
action arises there. In cases of the commercial contracts between parties of two
different countries, the intention of the parties would decide as to law of which
country would govern the contract and which could would gave the jurisdiction.

Place where breach of the contract take place:-

Every breach of contract gives rise to a cause of action. In case of the

breach of the contract, a suit may be instituted to secure the proper relief in the
place.

1. Where the contract was made

2. Where the breach thereof has occurred

The place of breach is the place where the contract had to be performed or
completed. In order to determine the place where the breach took place, that
part of the contract which has been performed has not to be considered. When a
contract was to be performed at 4 places, but was performed at 3 places but
broken at one place, the suit can be brought only at the place where it had been
broken and not in any other place where it had been performed. If it had been
broken at 2 or more places, the suit may be brought at any place where the
breach had occurred.

Ex: A contract of sale of goods was made at Delhi and it was agreed that the
delivery and the payments of the price was to be made at Kanpur, the contract is
to be completely performed at Kanpur, and the Kanpur court will have
jurisdiction to try a suit in respect of the breach of the contract.

Suit against government in cases of breach of contract:-

Determination of place for filing suit has to be governed by section

20. it has been seen that this section contemplates the following tests in this
regard.

1. Defendant's residence test

2. Defendant's place of business test

3. Cause of action test.

A corporation shall be deemed to carry on business at its sole opr principal

office in India, or in respect of any cause of action arising at any place where it
has also a subordinate office, at such place. These tests should normally govern
the suits, relating to breach of contract, against government as well. But the
application of business or residence test and had posed a difficulty. There was a
time when taking the advantage of business or residence test the plaintiffs used
to file the cause against the government at any place in India according to their
own choice.

Objections to jurisdiction:-

Section 21 of the Act provides that the followings are the objections

1. No objection as to the competence of a court with reference to the

pecuniary limit, of its jurisdiction shall be allowed by any appellate or
revisional court unless such objection was taken in the court of first instance at
the earliest possible opportunity, and in all cases where issues are settled, at or
before such settlement, and unless there was has been a consequent failure of
justice.

2. No objection as to the place of suing shall be allowed by any appellate or

revisional court unless such objection was taken in the court of first instance at
earliest possible opportunity and in all cases where issues are settled at or before
such settlement, and unless there has been a consequent failure of justice.

3. No objection as to the competence of the executing court with reference

to the local limits of its jurisdiction shall be allowed by any appellate or
revisional court unless such objection was taken in the executing court at the
earliest possible opportunity, and unless there has been a consequent failure of
justice.

1.8 Transfer of suits:-

Section 22 to 25 of the code of civil procedure says that the transfer of
cases from one court to other. For this purpose the defendant has to apply to the
appellate court or it the High court at the earliest possible opportunity and in all
cases where issues are settled, at or before the settlement of issues. The
defendant is to make this application after notice to the other party. After
considering the objections of the other party. The appellate court or the High
Court shall determine in which of the several courts having jurisdiction suit
shall proceed.
General power of transfer and withdrawal:-

Section 24 confers general power on the High Court and the District
court to transfer an application of any party and after notice to the other parties
or on its own motion any suit, appeal or other proceeding to it, or it may
withdraw the suit, appeal or other proceeding to itself and try to dispose of the
same. Section 24 of the Act provides that a change of court is not allowable
merely because the other side top has no objection for such change. Or else, it
would mean that when both parties combine together they can avoid a court and
get a court of their own choice, court is not disposed to give such an option to
the parties.

Power of Supreme Court to transfer suits:-

Section 25 of the act provides the power of Supreme Court

1. On the application of a party, and after notice to the parties, and after
hearing such of them as desire to be heard, the Supreme Court may, at any
stage, if satisfied that an order under this section is expedient for the ends of
justice, direct that any suit, appeal or other proceeding be transferred from a
High Court or other Civil Court in one state to a High Court or other High Court
or Civil Court in any other state.

2. Every application under the section shall be made by a motion which

shall be supported by an affidavit.

3. The court to which such suit, appeal or other proceeding is transferred

shall, subject to any special directions in the order of transfer, either re-try it or
proceed from the stage at which it was transferred to it.

4. In dismissing any application under this section, the Supreme Court may,
if it is of opinion that the application was frivolous or vexatious, order the
applicant to pay by way of compensation to any person who has opposed the
application such sum, not exceeding two thousand rupees, as it considers
appropriate in the circumstances of the case.

5. The law applicable to any suit, appeal or other proceeding transferred

under this section shall be the law which the court in which the suit, appeal or
other proceeding was originally instituted ought to have applied to such suit,
appeal or proceeding .

UNIT - II

2.1 INSTITUTION OF SUITS

 Order 1 Rule 1 to 8 of the code provides that every suit shall be
instituted by the presentation of a plaint or in such other manner as may be
prescribed. In every suit is to be instituted by the presentation of a plaint to the
court. The essentials of suit to be incorporated in the plaint are the parties,
subject in dispute, cause of action and a demand of relief Order 1 of the Civil
Procedure Code deals with the subject of parties to the suit that is the plaintiff
and defendants, and inter aliea with the joinder, misjoinder and non-joinder of
parties and to a certain extent with the joinder of causes of action.

Essentials of a suit

1. Two parties

Every suit must have two parties' plaintiff and the defendant

2. Cause of action

Every suit must contain a cause of action. It contains of every fact

which is necessary to be proved.

3. Subject-matter

There must be some right or property claimed in the suit.

4. Relief claimed

In every plaint relief claimed should be specifically stated.

Joinder of plaintiffs:-
All persons may be joined in one suit as plaintiffs in the following cases

1. When the right to relief is alleged to exist in each plaintiff.

2. The right to relief arises out of the same act or transaction or series of acts
and transactions.

3. If such persons brought separate suit any common question of law or fact
would arise.

Ex: A publishes a series of books styling them as Oxford and Cambridge

Publications When they are not the publications of the said Universities. The
two Universities join as plaintiffs against A in a suit to restrain A from selling
the books as their publication. The case raises common questions of fact and
they arise out of the same series of transactions, namely, the sale of books as
such at different times.

Joinder of defendants:-

Several persons may join as defendants in one suit in the following cases

1. A) if any right to relief is alleged to exist against them whether jointly,

severally or in the alternative.

B) The right to relief arises out of the same act or transaction

C) If separate suits were brought against such persons any common question
of fact and law would arise.

In Kanhaiyalal V/S Keshodas:-

In this case the plaintiff A purchased the suit-house in which two

defendants B and C were residing as tenants separately. He brought a suit for
eviction against both the defendant B and C claiming different relief against the
two defendants. It was held the B and C could not be joined as defendants in the
same suit. It was observed that the said conditions must exist together. There
must be some nexus or common link. This condition is not fulfilled if the case
against each defendant is entirely distinct and separate in its subject-matter from
that of the other defendants. If no connection or conspiracy is alleged to exist
between the various persons joined as defendant, permitted again two or more
defendants where there is no nexus inter se, it will lead to obscurity and
confusion.

2. If the plaintiff is in doubt as to the person from whom he is entitled to obtain

the redress, he may join two or more defendants.

3. The plaintiff may join in one suit all or some of the persons, severally or
jointly and severally, liable on any one contract including parties to Bills of
Exchange, Hundies and promissory notes.

4. Where the court feels that any joinder of defendants may embarrass or delay
the trial of the suit the court may order separate trails or may make such other
order as may be expedient.

Plaintiff when permitted to join defendants in one suit:-

Order 1, Rule 3 of the Code permits the plaintiff to join as defendants

against whom a relief is claimed in respect of or arising our of the same act or
transaction or series of acts or transaction provided that if separate suits brought
against such persons a common question of law or fact would arise. The
restrictions imposes by Order 1, Rule 3 of the Code are that the series of acts or
transactions must be such which would justify placing the various defendants in
the same group or category and further in respect of the various sets of
defendants any common question of law or fact arise in the suit.

Ex: 1. A filed a suit for price of goods against X and Y, who are defendants,
and partners of firm B, to which the goods were supplied. The defendants raised
a plea that the partnership firm had been dissolved and a receiver had been
appointed by the High Court for realization and payment of debts to the
creditors of the firm and that the receiver thereof was a necessary party. Held,
the receiver was a necessary party and should be added as a party.

2. There is collision between an omnibus and a motor car as a result of which A

who was not occupant in any of these vehicles but a by-stander is injured. A
may file a suit against the owners of both these vehicles with an alternative
claim for damages against whichever of the two defendants who is found
responsible for the collision on account of his negligence. The court will find
one defendant liable and award damages against him.

Necessary and proper parties:-

A proper party is one in whose absence no order can be made but

whose presence is necessary for a complete and final decision on the question
involved in the proceedings. To summarize the necessary parties are all persons
who have an interest in the subject-matter of the suit. Their presence before the
court is essential for determination of all the issues involved in the suit, and

Misjoinder or non-joinder of parties and its effect:-

When a person who is a necessary party to a suit has not been joined
as a party to the suit, it is a case of non-joinder. A suit is not to be dismissed
only to the ground of non-joinder or mis-joinder of parties. The court may allow
the necessary parties to be joined in at a later stage. The court may, at any stage
of proceedings, either upon or without the application or either party, and on
such terms as may appear to the court to be just, order that the name of any
party improperly joined, whether as plaintiff or defendant, be struck out and that
the name of any person who ought to have joined, whether as plaintiff or
defendant or whose presence before the court may be necessary in order to
enable the court effectually and completely to adjudicate upon to settle all the
questions involved in the suit, be added. If a decree cannot be effective without
the absent parties, the suit is liable to be dismissed. If the joinder of a person as
a party is only a matter of convenience, that is format, the absent [arty may be
added or the suit may be tried without him.

Answering the question regarding validity of non-joinder of parties

where all the affected persons had not been joined as parties to the petition, and
some of them only were joined, the Supreme Court took the view that the
interests of the persons who were not joined as parties were identical with those
persons who were before the court and were sufficiently and well represented
and, the petition was not liable to be dismissed on the ground.

Effect of non-joinder of parties:-

Order 1, Rule 9 of the CPC provides that no suit shall be defeated by

reason of mis-joinder or non-joinder of parties, and the court may in every suit
deal with the matter in controversy so far as regards the rights and interests of
the parties, actually before it. The defendant was making the offending
construction and relief was sought against him. No relief was sought against
Municipal Board. In these circumstances it can be jeld that the suit of the
plaintiff for the relief claimed is not maintainable simply because the Municipal
Board has not been made a party.

But in a partition suit when a co-sharer is brought on record as having

certain interests, he will be deemed to be representing the entire interests he is
entitled to have in the joint properties irrespective of the question whether or not
there is any such averment or admission in the plaint. Where the joinder is only
a matter of convenience, the absent party may be added or the suit may be tried
separately.

In B. Raghunandan V/S Danta Devi:-

In this case, the defendant who was going to make the offending
construction and the relief was sought against him. No relief could be sought
against the Municipal Board. It was open to defendant to plead that there was no
violation of any bye-law. Where instead of mentioning government of India
through the executive engineer, it was mentioned executive engineer; it was
held that it was a case of mere misdescription which the court can order to be
corrected at any time.

Representative suit:-

The general law is that all persons interested in a suit must be joined
as parties to it. This rule is based in the principles of convenience buy there is
an exception to this Rule which is laid down by Order 1, Rules 8 and 12. Order
1, Rule 8 contemplates suits in a representative capacity by some persons only
where a large number of persons having similar rights are involved. Similarly, it
also contemplates that a plaintiff may institute a suit against some persons only
as defendants, holding them in a representative capacity, or representing a large
number of persons having the dame interest.

Essentials of representative suit:-

Following are the essentials of a representative suit

1. The parties must be numerous

2. They must have the same interest in the suit.

Ex: Suit by a member of secretary of the club or association

3. The court's permission for filing a representative suit must be obtained

either at the institution of the suit or afterwards.
4. Notice to the parties whom it is proposed to represent is mandatory.

Compromise of representative suit

A plaintiff in a suit in a representative character can compromise with

leave of the court, but not otherwise. Nor can be give up or alter any right of the
others without their consent or the leave of the court. Similarly, a person
authorized by the court to defend a suit on behalf of others having the same
interest cannot, even if there is no defence, consent to judgment against them
without leave of the court, proper course in such case is to submit to judgement
on their behalf, but he can compromise with leave of the court.

Object

The object of the above Rule is to afford convenience in suits where

there is a community of interests amongst a large number of persons so that a
few may be allowed to represent all. Thus suits relating easements, usages etc.
of a whole village community or religious rites of a religious group, which are
recognized, are suits involving community of interests. The right of a village
community to gather fuel from forest, or graze cattle on forest land or cut wood
from forest to build houses or to collect water from a stream are all such rights
in which the whole body of persons living in a village are interested. It would be
highly inconvenient if thousands of persons were impleaded as defendants or
plaintiffs. So the Rule requires that a few persons only may be allowed to
represent all. It is Rule of convenience only and sav3e much trouble and
expense as well as time and ensures a convenient trial. It avoids multiplicity of
suits and harassment of parties.
Framing of suits:-

Order II of the Code provides that the object of the law is that all
matters in dispute between the parties and relating to the same transaction
should be disposed of in the same suit. It prevents multiplicity of suits. If a
plaintiff is entitled to sue in respect of several relief's but he either neglects to
do so or relinquishes a part of it, he will not be allowed to institute fresh suit for
such relief. It is open to plaintiff to give up any part of his claim or give up any
relief against any particular defendant and the court cannot compel him not do
so, but should grant the appropriate relief as claimed, if he is entitled to it in
law. Rule 2 of Order II of the code enjoys that the cause of action on which the
earlier suit and the latter suit are based should be the same or the foundation for
both the suits should be the same. Rule 2 Order II is based on the principle that
the defendant should not be forced to litigate twice for one and the same cause.
It means that in case a suit does not include the entire claim the claim which is
omitted should be deemed to have been relinquished by the plaintiff.

Order II, Rule 2 of the code provides:-

1. Every suit shall include the whole of the claim which the plaintiff is
entitled to make in respect of the cause of action; but a plaintiff may relinquish
any portion of his claim, in order to bring the suit within the jurisdiction of the
court.

2. Where a plaintiff omits to sue in respect of or intentionally relinquishes,

any portion of his claim, he shall not afterwards, sue in respect of the portion so
omitted or so relinquished.

3. A person entitled to more than one relief in respect of the same cause of
action may sue for all or any such relief's; but if he omits except with the leave
of the court, to sue for all such relief's shall not afterwards sue for any relief so
omitted.

Cause of Action:-

The cause of action is the cause of action which gives occasion for and forms
the foundation of the suit. Every fact could be necessary for the plaintiff to
prove, if traversed, in order to support his right to there judgment in his favour.
It does not comprise every piece of evidence which is necessary to prove each
fact, but every fact which is necessary to be proved. It means that the whole of
material facts which it is necessary for the plaintiff to prove in order to succeed
in his suit. A cause of action is something more than aground or utility of title
that is facts which entitle him to relief against a particular defendant. It may also
be pointed out that cause of action may mean one thing for one purpose and
something different for another depending on the context in each case.

Ex: 1. deliberate omission

S is the adopted son of M, the adoptive mother, both of them gift a

house H in favour of C, which gift remains invalid as it was not attested. M
further transfers property Y in favour of C. S files a suit to recover his adoptive
father's property including H, against M, and later on joins C also as defendant
claiming the alienated property from him but making no claim for the house H
against him. A decree is passed against C for property Y and no decree is passed
against C for the house H. s then files another suit against C for possession for
such house H. the suit is barred under this Rule as he omitted to claim the said
relief against C in the previous suit.

2. Accidental omission

A Muslim woman instituted a suit to recover property wroth Rs.

10,000 from her husband and a decree was passed in her favour. By an
oversight she omitted to include a property wroth Rs. 500 and she instituted
another suit for the same. It was held that the suit was barred for, she was aware
of her claim at the time of instituting the first suit.

3. Relinquishment

Where a debtor owes Rs. 2,200 to a creditor, and the creditor institute
a suit for Rs. 2,000 only in the court of the small causes by intentionally
relinquishing the claim for Rs. 200; the portion relinquished cannot be claimed
in a separate suit.

4. Continuous accounts

A businessman has a bill against a party for some amount in which

the various items are so connected that it does not appear, that the dealing was
intended to end with one contract, on the other hand, it appears to be continuous
so that if one item is not paid, it shall be untied with another and form one
continuous demand, the whole together forms but one cause of action and
cannot be divided.

Joinder of cause of actions:-

Order II Rule e deals with the joinder of causes of actions and should
be read subject to the provisions of Rules 4 and 5 of Order II, Rules 1 and 3 of
Order I as is shown by the words save as otherwise provided Rules 6 and 7 of
this Order are to be read with this Rule. The legislature has affected a sort of
compromise of two fundamental principles by means of the Rules, embodied in
Orders I and II.

1. That needless multiplicity of suits should be checked.

2. That the trial of suits should not be embarrassed by simultaneous
investigation of totally unconnected controversies.

2.2 Mis-joinder of plaintiffs and causes of action:-

According to the Rule read with Order I, Rule 1, if there are two or
more plaintiffs and two or more causes of actions, they may be joined in one
suit if the right to the relief and the causes of action arise from the same act or
transaction and that there is a common question of law or fact, though they may
not all be jointly interested in all the causes of action. But where the right to the
relief claimed does not arise from the same act or transaction or if there is no
common question of law or fact, the plaintiff cannot join all in one suit, unless
they are jointly interested in the causes of action as provided by this Rule.

Mis-joinder of defendants and causes of action:-

If there are two or more defendants and two or more causes of actions
plaintiff may unite in the same suit several causes of actions against the same
defendants jointly, provided several defendants have joint interest in the main
questions raised in the litigation. Where the causes of action were separate and
defendants was litigation. Where the causes of action were separate and
defendants were arranged in different sets, the suit was held to be bad for mis-
joinder of causes of action and defendants. The plaintiff may join two or more
defendants to the same suit even if there are two or more causes of actions,
where the right to the relief claimed arises from the same act or transaction and
there is a common question of law or fact although all the defendants may not
all be jointly interested in all the causes of action., but where the relief claimed
does not arise from the same act or transaction, or where there is no common
question of law or fact, the defendants cannot be joined in one suit unless they
are jointly interested in the causes of action in accordance with this rule.

Ex: The plaintiff instituted a suit for the recovery of possession of agricultural
land from several defendants who were separately in possession of separate
holdings. The Privy Council held the plaintiff in disregard if the provision of the
code has united in the suit not merely several causes of actions, but several
actions or suits against separate defendants with the result that in effect the
litigation has been conducted and treated throughout as though the defendants
were a community with common interest.
Institution of suits:-

Section 15 to 20 of the code lays down the rules prescribed the form
of venue for the institution of civil suits in India. They are as under:

1. Court in which suits to be instituted:-

Section 15 of the code says that every suit be instituted in the court of the lowest
grade competent to try it. The object of this provision by requiring a suitor to
being his suit in the court of the lowest grade competent to try it is that courts of
higher grades may not be overcrowded with suits. At the same time it does not
oust the jurisdiction of the courts of higher grades, but the higher grade court
should return the plaint in such case to the plaintiff to be presented to the court
of the lowest grade competent to try it. The section lays down a rule of
procedure and not of jurisdiction. Exercise of jurisdiction by a court of higher
grade than is competent to try it is a mere irregularity, but exercise of
jurisdiction by a court of lower grade than is competent to try it is a nullity and
the decree will be set aside. Consent of parties cannot confer jurisdiction.

2. Suits to be instituted where subject-matter situate:-

Subject to the pecuniary or other limitations prescribed by any law, suits:

1. for the recovery of immovable property with or without rent or profits

2. for the partition of immovable property
3. for foreclosure, sale of redemption in the case of a mortgage of or charge
upon immovable property.
4. for the determination of any other right to or interest in immovable
property
5. for compensation for wrong to immovable property
6. For the recovery of movable property actually under distrait or
attachment, shall be instituted in the court within the local limits of whose
jurisdiction the property is situate.

Equality acts in personam:-

The provision to the section is ion application in a modified form of a

maxim of equity. Equity acts in personam. In England the Chancery Courts had
and now the Chancery Division of the High Courts of Justice has jurisdiction to
entertain certain suits respecting immovable property, though the property
might be situate abroad if the relief sought could be obtained through the
personal obedience of the defendant. The personal obedience of the defendant
could be secured only if the defendant resided within the local limits of the
jurisdiction of the court or carried on business within those limits. Its essential
feature was that the land in respect of which the suit was brought was situate
aboard, but the person of the defendant or his personal property was within the
jurisdiction of the court in which the suit was brought.

3. Suits for immovable property situate within jurisdiction of different

courts:-

Section 17 of the code provides that where a suit is to obtain relief respecting, or
compensation for wrong to, immovable property situate within the jurisdiction
of different courts, the suit may be instituted in any court within the local limits
of whose jurisdiction any portion of the property is situate. The object of the
section is to avoid multiplicity of suits, but the section is no bar to parties
bringing successive suits where the properties are situate in different
jurisdictions.

4. Place of institution of suit where local limits of jurisdiction of courts

are uncertain:-

According to section 18 of the code provides that

1. Where it is alleged to be uncertain within the local limits of the

jurisdiction of which of two or more courts any immovable property is situate,
anyone of those courts may, if satisfied that there is ground for the alleged
uncertainty, record a statement to that effect and thereupon proceed to entertain
and dispose of any suit relating to that property and its decree in the suit shall
have the same effect as if the property were situate within the local limits of its
jurisdiction.

2. Where a statement has not been recorded and an objection is taken before
an appellate or revisional court that a decree or order in a suit relating to such
property was made by a court having jurisdiction where the property is situate,
the appellate or revisional court shall not allow the objection unless in its
opinion there was, at the time of the institution of the suit, no reasonable ground
for uncertainty as to the court having jurisdiction with respect thereto and there
has been a consequent failure of justice.

5. Suits for compensation for wrong to person or movables:-

Section 19 of the Code provides that where a suit is for compensation

for wrong done to the person or to movable property, if the wrong was done
within the local limits of the jurisdiction of one court and the defendant resides,
or carries on business, or personally works for again, within the local limits of
the jurisdiction of another court, the suit may be instituted at the option of the
plaintiff in either of the said courts.
Ex: 1. A, residing in Delhi, beats B in Calcutta. B may sue A either in Calcutta
or in Delhi.

2. A, residing in Delhi, publishes in Calcutta statements defamatory of B, B

may sue A either in Calcutta or in Delhi.

6. Other suits to be instituted where defendants reside or cause of action

arises:-

Section 20 of the Code provides that the subject to the limitations aforesaid,
every suit shall be instituted in a court within the local limits of whose
jurisdiction

1. The defendant, or each of the defendants where there are more than one,
at the time of the commencement of the suit, actually and voluntarily resides, or
carries on business, or personally works for gain

2. Any of the defendants, where there are more than one, at the time of the
commencement of the suit, actually and voluntarily resides, or a carries on
business, or personally works for gain, provided that in such case either the
leave of the court is given, or the defendants who do not reside, or carry on
business, or personally work for gain, as aforesaid, acquiesce in such institution.

3. The cause of action, wholly or in part, arises.

2.3 Definition of pleadings:-

Pleadings are the backbone of litigation. The code defines the
pleading as meaning a plaint or written statement under Order 6, Rule 1. A
pleading are statements of the parties in writing, setting out their contentions
and claim or counter-claims giving details, so that the opposite party may know
what case he has to meet or what is the reply to his case, according to Sri. P.C.
Mogha, pleadings are statements written drawn up and filed by each party to a
case, stating what his contention will be at the trial and giving all such details as
his opponent needs to know in order to prepare his case in answer.

Object of pleadings:-

The object of the pleadings to narrow down the parties to definite

issues and thereby diminish expense and delay, especially as regards the amount
of testimony required from both the parties at the hearing. The object of the
pleadings is firstly to narrow the parties to definite issues and to confine the trial
within due limits so as to save time and expenses which might otherwise be
needlessly thrown away. In the second place the object is to prevent the other
party from being caught by surprise.

Contents or fundamentals of pleadings:-

The rules of pleading may be summarized as follows:

1. State material facts not law

A pleading must state facts and shall not contain law. The courts are themselves
bound to take judicial notice of law.

2. State material facts not evidence

A statement of the material facts given in a concise from divided into

consecutively numbered paragraphs and the dates, sums and number expressed
in figures.

Whether a suit is purely one for permanent injunction is matter of

construction of plaint in each case. But in construing the plaint the court has to
look at the substance of the plaint rather than its mere form. If on the whole and
the substance, the suit appears to ask for some relief as stated, yet the court can
look at the substance of the relief. The question whether the relief of injunction
prayed for the plaintiffs be considered as consequential to the main relief or not
has to be decided on the basis of the allegations in the plaint and the prayer
made therein. Mere astuteness in drafting the plaint will not be allowed to stand
in the way of the court looking at the substance of the relief asked for.

There are two kinds of facts:

a) Facta Probanda

The material facts on which a party relies are called facta probanda and they
should be stated in the pleadings.

b) Facta Probantia

Whereas the evidence or facts by means of which they are to be

proved are facta probantia and they should not be pleaded.

3. State necessary particulars

When misrepresentation, fraud, breach of trust, willful default are

relied on in the pleadings, particulars of these things with data and items, if
necessary, shall be stated. The entry in a register of death kept by the municipal
authority under section 3 of the Evidence Act may be admissible in evidence
but by no means conclusive.

4. When the performance or occurrence of any condition precedent is

intended to be contested, such condition precedent shall be distinctly specified.

5. Documents not to be set out

When the contents of a document are material but not precise words
thereof it shall state the effect thereof briefly without setting out the document.

6. Condition of the mind to be alleged as a fact

When malice, fraudulent, intention, knowledge, or other condition of

the mind of a person is material, the pleading shall allege it only as a fact
without setting out the circumstances from which it is to be inferred.

7. Notice to be alleged as a fact

When it is material to allege notice to any person of any fact, matter

or thing, pleading shall only allege the notice as a fact; unless the form or the
precise terms of such notice is to be inferred are material.

8. Implied contract to be alleged as a fact

When any contract or any relation between persons is to be inferred

from a series of letters or conversation or circumstances, the pleading shall
allege only such contract or relation as fact and refer generally to them without
setting them in detail.

9. Facts to be presumed not to be pleaded

Neither party is to allege any matter of fact which the law presumes in
his favour unless the same has first been specifically denied.

Ex: Consideration for a bill of exchange.

10. Every pleading to be signed and verified

Signature by the party and his pleader or any person duly authorized
by the party pleading to sign the same or to sue or to defend on his behalf, in
case the party is unable to sign it for absence or other good cause.
11. In suits by or against a corporation any pleading may be signed and
verified by the secretary or any director, or other principal officer who is able to
depose to the facts of the case.

Essentials of pleadings:-

Rule 2, Order 6 is the fundamental rule of pleadings. It requires the following

four things

1. Every pleading must state facts and not law, and also not legal inferences.
2. It must state material facts and material facts only. No relief can be
granted in the absence if a specific plea on the point.
3. It must state only the facts on which the party pleading reliefs for his
claim or defence, and not the evidence by which they are to be proved.
4. It must state such facts in a concise form.

Where in a suit for specific performance of a part of a contract of sale,

the defendant does not raise the plea that such a suit not maintainable by reason
of section 17 of the Specific Relief Act, he cannot be allowed to raise it at the
time of hearing.

At the foot of the pleading there shall be a variation:-

1. By the party or one of the parties pleading or some other person

acquainted with the facts of the case.
2. Specifying what paragraphs he verifies of his own knowledge and what
paragraphs he verifies upon information received and believed to be true.
3. Signed by the person verifying
4. Stating the date and place of signature.
5. The person verifying the pleading shall also furnish an affidavit in
support of his pleadings.

Amendment of pleadings:-

The court may at any stage of the proceedings allow either party to
alter or amend his pleadings such manner and on such terms as may be just and
all such amendments shall be made as may be necessary for the purpose of
determing the real questions in controversy between the parties. Provided that
no application for amendment shall be allowed after the trial has commenced,
unless the court comes to the conclusion that in spite of due diligence, the party
could not have raised the matter before the commencement of trail.

Amendments are of three kinds: those are :-

1. Courts general power to amend any defect or error in any proceedings in
order to determine the real question in issue raised by or depending on such
proceeding.

2. Amendments which a party desires to make in his opponent's pleading of

proceedings against his will.

Ex: Striking out or adding parties in order to adjudicate completely and

effectively or striking out scandalous, unnecessary, frivolous, vexatious or
embarrassing pleadings.

Amendments at any stage which satisfy the two conditions:

a) Of not working injustice to the other side.

b) Of being necessary for the purpose of determining the real question in

controversy between the parties.

Ex: 1. in a suit on a promissory note the plaintiff was allowed to amend his
plaint and sue on the original consideration.

2. In a suit for debt plaintiff is allowed to amend the plaint by setting out on
acknowledgement passed to him by defendant even after the defendant had filed
this written statement raising the plea of limitation.

3. Misdescription of immovable property in a plaint may be corrected and also

in appeal.

In the following cases leave for amendment should be refused:-

1. If the amendment will not substantially help in determining the real

questions at issue between the parties.
2. If the suit would be completely deformed by the amendment.
3. If the amendment seeks to take away from the defendant a legal right
which has accrued to him by lapse of time? A sues B for defamation; later
on he amends the plaint by adding a fresh claims for assault. This claim
was barred by limitation on the date of amendment though not barred on
the date of the suit. Amendment was refused.
4. If the amendment introduces an entirely new and inconsistent case, and
the application is made at a late stage of the proceedings, it applies to
amendment of written statement also.
5. If the amendment is not banafide or it is malafide.
Ex: Where there is no substantial ground for the case proposed to be set up the
amendment. Merely because one of the effects of amendment may be to
facilitate setting aside the previous order, it cannot be said to be mala fide, if the
amendment is necessary for determination or real matters in controversy.

6. Where the plaintiff based his claim upon a specific legal relation alleged
to exist between him and the defendant, he may not be allowed to amend
the plaint so as to base it on a different legal relation.
7. If a plaintiff based his claim on a specific title, he may not be allowed to
amend the plaint so as to base it on a different title.
8. When one kind of fraud is changed, another kind of fraud cannot upon
failure to prove be substituted for it.

2.4 Plaint :-
Order VII, Rule 1, 5, 7 and 8 says about plaint.

Contents of plaint:-

1. Name of the court in which the suit is brought.

2. Name, father's name, occupation and residence of the plaintiff and
defendant.
3. Statement that plaintiff or defendant if a minor or lunatic and in that case
the plaint shall mention the name of his guardian or next friend.
4. Facts constituting the cause of action has jurisdiction.
5. Facts showing that the court has jurisdiction.
6. Relief either simple or in the alternative, which the plaintiff claims.
7. Amount allowed being set-off or portioning of the claim relinquished by
plaintiff.
8. Statement of value of the subject-matter of the suit for the purpose of
jurisdiction and court-fees.
9. Statement that the defendant is interested in the subject-matter of the suit
and liable to be called upon to answer the plaintiff's demands.

Rejection of plaint

Order 7, Rules 11 to 13 lays down as under:

1. Where it does not disclose a cause of action.

2. Where the relief claimed is undervalued, and the plaintiff, on being
required by the court to correct the valuation within a time to be fixed by
the court, fails to do so.
 3. Where the relief claimed is properly valued but the plaint is written upon
paper insufficiently stamped, and plaintiff, on biding required by the
court to supply the requisite stamp-paper within a time to be fixed by the
court, fails to do so.
4. Where the suit appears from the statement in the plaint to be barred by
any law.
5. Where t is not filed in duplicate.
6. Where the plaintiff has to comply with provisions of Rule 9.

Procedure on rejecting plaint:-

Rule 12 of the Code says that where a plaint is rejected the judge shall
record an order to that effect with the reasons for such order.

Grounds of rejection of the plaint:-

1. Plaint not showing any cause of action.

Ex: In suit for malicious prosecution and damages, absence of necessary

averment in plaint.

2. Relief being under-valued and the plaintiff not correcting it within time
granted by court. Rejection of the plaint is a dismissal of the suit though
the plaintiff may present a fresh plaint.

1. Plaintiff not making good the deficiency in court fees:-

If the plaint is written upon paper insufficiently stamped, the court is

bound to give the plaintiff time to make good the deficiency. Reasonable time
must be given to make up the deficiency and within the time allowed, if the
plaintiff cannot pay, he may apply for further time to make good the deficiency
or to continue that suit as a pauper.

2. Suits being barred by any law:-

Where a plaint appears to be barred by limitation and is not

accompanied with an application for granting exemption the court has discretion
to reject such a plaint.

2.5 Written statements :-

Order VII Rule 1 says that the defendant shall, within thirty days from the date
of service of summons on him, present a written statement of his defence.
Where the defendants fails to file the written statement within the said period of
30 days, he shall be allowed to file the same on such other day, s may be
specified by the court, for reasons to be the date of service of summons.

Conditions:-

Rule 1-A of the code says following conditions to be satisfy by the defendant.

1. Where the defendant bases his defence upon a document or relies upon
any document in his possession or power, in support of his defence or claim for
set off or counter claim, he shall enter such document in a list, and shall produce
it in court when the written statement is presented by him and shall, at the same
time, deliver the document and a copy thereof, to be field with the written
statement.

2. Where any such document is not in the possession or power of the

defendant, he shall, wherever possible, state in whose possession or power it is.

3. A document which ought to be produced in court by the defendant under

this rule, but, is not so produced shall not, without the leave of the court be
received in evidence on his behalf at the hearing the suit.

4. Nothing in this rule shall apply to documents:

a) Produced for the cross-examination of the plaintiff's witnesses.

b) Handed over to a witness merely to refresh his memory.

Denial must be specific:-

The written statement must contain denial which is specific. It must

not be evasive. In other words every allegation of fact in the plaint, if not denied
specifically or by necessary implication, or stated to be not admitted in the
pleading of the defendant shall be taken to b admitted. The words the plaintiff
is put to proof of the several allegations in the plaint, or he does not admit the
correctness of the averments in the plaint, are generally specking not a sufficient
denial within the meaning of Rules 3 and 4 of Order 8.

Contents of written statements:-

1. The written statement shall state all matters which show that the suit is
not maintainable or that the transaction in suit is either void or viodable in
point of law.
2. It should state all such grounds of defence which if not stated would take
the opposite party by surprise.
 3. It should state all grounds that raise issue of fact not arising out of plaint.
4. It should deal with each allegation in the plaint, either admitting it or
denying it directly.
5. It should state separately and distinctly the distinct grounds of defence or
set-off founded upon separate and distinct facts.

2.6 Set-Off :-
Set-off is the doctrine of law which allows the defendant to put his
claim under certain circumstances against the plaintiff before the court. It is
reciprocal acquittal of debts; a cross-claim for money and it any extinguish the
plaintiffs claim. It obviates the necessity of filing a fresh suit by him. The right
to set-off has been granted by Rule 6 of Order 8 of the code of Civil Procedure.
Parties to a proceeding have a right to set-off their claims against each other in a
proceeding independently of the provisions of Order 8, Rule 6, where cross-
demands arise out or the same transaction or are so connected in their nature
and circumstances as to make it inequitable that the plaintiff should recover and
the defendant driven to a cross-suit. Courts in this country as well as in England
have allowed a plea of set-off in such circumstances in respect of unascertained
sums.

Kinds of set-off

There are two kinds of set-off: those are as follows.

1. Equitable set-off:-

There are cases in which set-off is allowed even in respect of an

unascertained sum.

Ex: damages, connected in their nature and circumstances that they can be
looked upon as part of one transaction. It is known as equitable set-off, as it is
allowed by courts of equity in England while a legal set-off, as it is allowed by
courts of common law in England

2. Legal set-off:-

Set-off envisaged under Order VII, Rule 6 is legal set-off, the relevant
time for considering whether the claim is barred by limitation is the date of the
institution of the suit and not the date when the written statement claiming the
set-off was put in but in a counter-claim the material point of time would be the
date when the written statement was filed and not the date of the suit.
 Where the lower court allowed he application under Order 47, Rule 1
and section 151, civil procedure code, without giving any notice to the
petitioner, it was held, the lower court was clearly in error in allowing the
application without affording an opportunity to the petitioner in the matter. The
order passed by the lower court was set aside. Where ex-paete decree was
passed due to counsel's inaction and his name also did not appear on list on the
date of passing ex-parete decree, it was held that ex-parte decree was liable to
be set aside.

Sufficient cause:-

Under Order 9, Rule 13 of cpe an ex-parete decree passed against a

defendant can be set aside upon the satisfaction of the court either the summons
were not duly served upon the defendant or he was prevented by any sufficient
cause is shown for non-appearance of the defendant in the case on date of
hearing the court has no power to set aside ex-parte decree.

The original sale deed having given wrong description of the property
the suit property in the prior suit is different from that of the subsequent suit.
Therefore the cause of action of the two suits, are different and the bar under
Rule 9 of Order 9 of the cpc cannot apply although the former suit was
dismissed under Rule 8 of Order 9, cpc.

UNIT- III

3.1 APPEARANCE AND NON-APPEARANCE

OF PARTIES
The terms of Order IX, CPC, are all parts of the procedural
enactments while construing them an attempt should be made to further the
remedy and suppress the mischief. To the extent the defendant who was present
and as such preferred to further the progress of the case and the plaintiff was
absent, the law inhibits any fresh action, to the extent however the defendant,
was absent it is plain that the same result is neither contemplated, nor can be
canvassed even on equitable grounds for the defendant was also in default.

Followings are the important points

1. Dismissal of suit where summons not served in consequence of

plaintiff's failure to pay costs

Where on the day so fixed it is found that the summons has not been
served upon the defendant in consequence of the failure of the plaintiff to pay
the court-fee or postal charges, if any, chargeable for such service, or failure to
present copies of the plaint as required by Rule 9 Order VII, the court make an
order that the suit be dismissal.

2. Whether a suit can be dismissed for non-payment of process fee

If on that days neither of the party to suit appear when the case is called on for
hearing. It was held by the divisional bench that the counsels engagement in
another court when the suit was called on, if not denied in the opposition filed
by the defendant, constitutes sufficient cause for non-appearance at the hearing.

3. Excuse for plaintiff's no-appearance

A bona fide mistake is a bona fide mistake. The court has no

jurisdiction to impose any condition as to cost under this rule.

4. If the summons is not served on the defendant and the plaintiff does not
take steps for fresh service for from the date of the non-service of summons nor
is time extended by court.

5. Where the defendant appears and the plaintiff does not appear when the
suit is called on for hearing, the court shall make an order that the suit be
dismissed unless the defendant admits the claim or part thereof, in which case
court shall pass a decree against defendant upon such admission, and where
party only of the claim has been admitted, shall dismiss the suit so far as to
relates to the remainder.

Consequence of non-attendance, without sufficient cause shown, of party

ordered to appear in person

Where a plaintiff or defendant who has been ordered to appear in

person, does not appear in person, or show sufficient cause to the satisfaction of
the court for failing so to appear, he shall be subject to all the provisions of the
foregoing rules applicable to plaintiffs and defendant, respectively, who do not
appear.

Setting aside decree ex-parte

Section 13 of the code provides that in any case in which a decreed is

passed ex-parte against a defendant, he may apply to the court by which the
decree was passed for an order to set it aside; and if he satisfies the court that
the summons was not duly served, or that he was prevented by any sufficient
cause from appearing when the suit was called on for hearing, the court shall
make an order setting aside the decree as against him upon such term as to costs
payment into court or otherwise as it thinks fit, and shall appoint a day for
proceeding with the suit.

Remedies in case of ex-parte decree and order:-

1. Appear- by the defendant

2. The defendant may apply for a review of judgement
3. Application

For restoration under Order 9, Rule 13 lies to the court which passed the decree
as mentioned above, within 30 days from the date of the passing of the decree,
or form the date on which the applicant had knowledge of the decree; when the
summons was not duly served. The fact an ex-parete decree has been passed by
the court does not preclude the defendant from applying to the court for an order
to set aside under the rule.

4. Where the court has adjourned the hearing of the suit ex-parte and the
defendant, at or before such hearing appears and assigns good cause for
his non-appearance, the court may set aside the order passed to proceed
ex-parte or may allow the defendant to participate in the proceeding.
5. Where suit has been dismissed for non-prosecution before the appearance
of the defendant, there being no specific provisions in the code for such a
contingency, the court may restore the suit and set aside the dismissal
under inherent powers of section 151 of C.P.C.

An independent suit is maintainable to set aside an ex-parte decree on

the ground of fraud, or collusion even after rejection of application under Rule
13. Where there has been an appeal against decree passed ex-parte under this
rule, and the appeal has been disposed of on any ground other than the ground
that the appellant has withdrawn the appeal, no application shall lie under this
rule for setting aside the ex-parte decree.

The following causes have been held to be sufficient cause:-

1. Late arrival of a train.

2. Mistake in entering wrong date in pleader's dairy.
3. Bona fide mistake ad to date.
4. Negligence of minor's guardian to appear.

The following causes have not been held to be sufficient cause:-

1. Departure of applicant from court on the supposition that he would be

back before the finish of a case which was being tried and dismissed
during his absence.
 2. Failure to receive intimation of date from attorney when due to
defendant's not seeking that information the same was sent to him.
3. Knowledge of suit is not sufficient so long as party is not served with
summons. But mere irregularity in the service of summons, that is not
affixing on the outer door of the defendant's house, will not displace
defendant's knowledge of the suit and constructive knowledge of the suit
will be presumed in the defendant, particularly where application to set
aside ex-parte decree has been made long after the expiry of 30 days
limitation for presenting such an application during which interest of third
parties has supervened.

Examination or the parties by the court:-

Order X of the Code provides that the object of this order is not to
take evidence but to determine the matter in dispute between the parties. Its
object is to clear up the obscurity and narrow down the issue. At the first
hearing of this suit, the court may examine any party of his pleader orally in
order to ascertain and clarify the true position of the parties with respect to the
facts of the case and whether he admits or denies the allegations in the plaint or
written statements. The statement shall be recorded. Any party appearing on
person or present in court or any person able to answer any material question
relating to the suit by whom such party or his pleader is accompanied may be
examined orally by the court ay, if it thinks fir, put un the course of such
examination questions suggested by either party.

The party making statement under this Rule is bound by it and its
admission is made by such party it becomes conclusive. Rule 2 provides as
under:

1. at the first hearing of the suit, the court:-

a) Shall with a views to elucidating matter in controversy in the suit,

examine orally such of the parties to the suit appearing in person or present in
court, as it deems fir.

b) May orally examine any person, able to answer any material question
relating to the suit, by whom any party appearing in person or present in court
or his pleader is accompanied.

2. At any subsequent hearting, the court may orally examine any party
appearing in question or present in court, or any person, able to answer any
material question to the suit, by which such party or pleader is accompanied.
3. The court may if it thinks fit, put in course of an examination under this
rule questions suggested by either parties.

3.2 Discovery :-
Every party to suit is entitled to know the nature of his opponent's so
that he may be able to put forth a proper reply to it. If the pleadings are not clear
and do not disclose the real state of affairs and there is some ambiguity, a party
is entitled to obtain further information from the other party. But he is not
entitled to know the evidence of his opponent. Discovery means to disclose all
material facts which constitute a case, and all facts necessary to support his
opponent's case. This information can be all must answer by affidavit. The
second purpose of discovery is to disclose all documents in one's possession or
power relating to matters in suit even if they go against one's case. The
documents are to be disclosed by affidavit of documents.

The principle of discovery is for tending to save expenses and

shortening litigation. Besides discovery of documents the parties may also
require discovery of facts. Sometimes both discovery of documents and
interrogatories are necessary and then if there be time discovery of documents
should generally be asked for first, for inspection of documents disclosed may
render unnecessary some of the proposed interrogatories. Either party may at
the trial read at evidence anyone or more of the answers or any part of an
answer which he had obtained to the interrogatory, administered to his
opponent. He need not put in the rest of them unless the judge directs him to do
so.

3.3 Interrogatories :-

As a general rule interrogatories will be allowed whenever the answer

to them will serve either to maintain the case of the party administering them or
to destroy the case of his adversary. The object of interrogating is two fold:

a) To obtain admission to facilitate the proof of one's own case

b) To ascertain the case of the opponent.

The main object of interrogatories is to save expense by enabling a party to

obtain from his opponent information of such fact which may be material to the
questions in dispute. There is, therefore, some art required in drawing
interrogatories. Think rather of the answer the defendant will probably give you
than of the answer which you are instructed by your client he ought to give. The
defendant's version of the matter must differ from the plaintiff's version and
your object is to discover precisely where and to what extent they differ. Your
question then should be framed so as to elicit, if possible, the admission you
desire and at the same time failing that admission, to get at all events some
definite statements sworn true by them, from which the party interrogated
cannot afterwards resile. Leave no loop-hole of escape, if he will not answer the
question you may still at least find out how far he is prepared to go in the
opposite direction; to secure this it is well to ask a series of short questions, not
long questions; each additional detail should be put in a question by itself.

Ex: If you are instructed by your client that the plaintiff gave evidence in the
insolvency court in the presence of one X that the certain cheque was in
handwriting of the defendant, it will be of little value to ask merely: Did you not
state on oath in the Insolvency court in the presence of X that the said cheque is
in the defendant's handwriting? Because the plaintiff will simply answer, No.
The only one way to discover precisely what it is that the plaintiff denies is to
split the question into several as follows:

1. What you not examined as a witness in the insolvency court on 9 th may

1942?
2. Was not Mr. X present in the court throughout your examination as a
witness and heard your statement?
3. IN the course of your examination was not a cheque on the Imperial bank
of India, Allahabad, for rupees ten thousand shown to you?
4. It was dated 15th April, 1943, why?
5. It was drawn by A in favour of B.
6. Did you not state that the signature on the said cheque was in the
handwriting of?

What interrogatories may be allowed?

In England interrogatories are allowed for ascertaining the nature of

opponent's case, for supporting one's own case directly or indirectly.
Interrogatories that are admissible must be relevant to the matter in issue. If
particulars are given, interrogatories should be restricted to matter therein.

Ex: A publisher of a newspaper may be asked to answer the interrogatory, was

not the passage set out in Para 3 of the plaint intended to apply to the plaintiff.
But he will not be called upon to answer the further interrogatory, if not, say to
whom it is intended to apply, because it will not be bona fide for the purposes of
the present litigation however useful it may be for use in a further litigation.

But interrogatories are not like pleadings confined to the material

facts on which the parties intend to rely; they should be and generally are
directed to the evidence by which the party interrogatories desires to establish
the facts at the trials. Either party may interrogate as to any link in the chain of
evidence necessary to substantiate his own case if the question is relevant
leading up to a matter in issue in the action.

Ex: The defendant denies that he wrote a material document, he may be asked
whether the documents produced by the plaintiff are not in his handwriting.

What interrogatories may not be allowed?

The following interrogatories are not allowed.

1. For obtaining discovery of facts which constitute exclusively the

evidence of one's adversary's case.
2. Regarding any confidential communication one's opponent and his legal
advisers.
3. Irrelevant for the case or groundless or not bona fide.
4. Involving disclosures injuries to public interest.
5. Fishing interrogatory, which is not referring to any definite and existing
state of circumstances but only in the hope of discovery something that
may be helpful to party interrogating.

3.4 Discovery of documents :-

The issues in the suit having been clearly stated, each party should ask
himself how he shall prove his case, in other words, what is the evidence
available which he must adduce. Supposing some letters have passed between
the parties before the filing of the suit and contain important admissions and
may be used as evidence of some material fact. But the letters of the plaintiff
would be in the possession of the plaintiff and the two sets of letters supplement
each other and neither would be intelligible without the production of the other
set. Mover over, a party would like to read his own letters he gives evidence by
entering the witness-box his recollection of an interviews may be hazy and be
far less reliable than an account set down in black and white in letter written by
him. Mover over, there is no better material for cross-examination of an
opponent that the letters written by him before the suit. Hence it is generally
desirable for each party to see all material documents in the possession of the
opponent and to take copies of them or the important one. Such disclosure is
obtained by the process called discovery of documents.

Ex: A wants to inspect certain documents in the possession of B, which he is

entitled to inspect, but A cannot unless B produces them in the court. A must,
therefore, call upon B to produce the documents. But how can A do this unless
he knows what documents are in his possession. A is entitled to discover from B
the documents in his possession or power.
INSPECTIONS
Any party to the suit may give notice to the other party to produce for
his inspection any document referred to in the pleadings or affidavits of the
other party. Rules 15 to 18 of Order 11, CPC, relate to the inspection of
documents. The documents, for the purposes of inspection may be divided into
two categories:

a) These documents which are referred to the pleadings affidavits of the

parties.

b) Other documents in the possession or power of the party but not so

referred.

Order for inspection

Where the party receiving notice omits to give such notice of a time
for inspection or objects to give inspection, or offers inspection elsewhere that
at the office of his pleader, the court may, on the application of the party
desiring it, make an order for inspection at such place and in such manner as it
thinks fit, but no order will be made where the court thinks that it is necessary
either for disposing fairly of the suit or for saving costs.

Rule 15 lays down, regarding the first category, that a party may
without the courts intervention, give notice in the form provided under Rule 16
in whose pleadings they are referred to, to produce such documents for his
inspection. Rule 17 lays down that then party to whom notice is given should,
within ten days, from the receipt of such notice, give notice to the party
claiming such inspection stating his objections, if any, to the production of any
of the documents. Rule 18 lays down procedure to be followed when there is
non-compliance with Rule 17 (2) of Rule 18 lays down that the court shall not
make such order for inspection when it is of opinion that it is unnecessary for
disposing of the suit.

Application for striking out of defence not allowed on ground of failure to

file affidavit of documents by defendant

Where repeated opportunities were given to defendant to file affidavit

of documents. But he subsequently said affidavit was filed within time fixed by
High Court. As such, it could not be said that no affidavit of documents was
filed in terms of order of court. Hence, default clause had never taken effect and
hence defence could not be striked out. As said affidavit had not conformed to
requirements of provisions, hence, it could not be accepted as valid affidavit.
But for the interest of justice, defendant was given time to file proper affidavit
as he was not found guilty of obstinacy and contumacy.

3.5 Admissions and affidavit :-

By admission one party admits the case of other party, that is it
accepts the case of the party in whole or in part to be true. Under section 58 of
the Indian Evidence Act facts admitted need not be proved. The adoption of the
procedure provided in this order would result in saving the time of courts in
taking of such proof and shortening litigation. Thus, it obviates the necessity if
proving facts which are admitted and the judgment, in such cases, may proceed
on admissions.

Object of admission

Its object is to do away with the necessary formality of proving facts that are
admitted. The importance of admission consists in the fact that either party may,
at any stage of the suit, move for judgment on the admissions made by the other
side.

Kinds of admission:-

There are 5 kinds of admissions, those are as follows:

1. Admission of facts
2. Admission of documents in notice
3. Admission in pleadings:

a) Actual that is those continued in the pleading or in answer to

interrogatories.

b) Constructive that is those which are merely the consequence of the form
of pleading adopted

4. Admission by agreement of parties

5. Admission by notice

Notice to admit may be given the following cases:-

1. To admit a party's case

Other party may give notice by his pleading or otherwise in writing

that he admits the whole or any part of the case of the other party. The question
whether the sale was made for legal necessity or not is a pure question of fact.
Therefore, where the contesting defendant had admitted twice that the evidence
adduced by the parties did not make out any case of legal necessity for the sale
of property and the appellate court committed a manifest error by allowing this
issue of fact to be re-opened when it had been concluded by the admission made
on behalf of the defendant.

2. Power of courts to record admission

Notwithstanding that no notice to admit documents has been given

under Rule 2, the court may, at any stage of the proceeding before it, of its own
motion call upon any party to admit any document and shall, in such a case,
record whether the party admits or refuses or neglects to admit such document.
Where the documents in dispute are contained in the file of another suit, the law
prohibits of any copy except a certified copy as secondary evidence of the
original and so, that petitioner cannot call upon the opposite party, to admit or
deny any other kind of secondary evidence. Each party must bear the initial cost
of procuring the proper document and producing it before the court, and then
alone, it can call upon the opposite party to admit and or deny the same and
thereby attempts to save the costs of proving the documents. Whether a party
refuses to admit and or deny an improper document, which cannot to be
adduced in evidence, the court cannot call upon such party to do so as the peril
of facing the consequences.

3. Admission of documents

Any party may admit the document filed by the other party, thus
obviating the necessity or proving it. Where admission is made between co-
defendants to which plaintiff is not a party, the same cannot be treated as
evidence against the plaintiff.

Affidavits

Order XIX and Sections 30 and 139 of the Code provides that any
court may at any time for sufficient reason order that any particular fact or facts
may be proved by affidavit, or that the affidavit, or that the affidavit of any
witness may be read at the hearing, on such conditions as the court thinks
reasonable. Provided that where it appears to the court that either party bona
fide desires the production of a witness for cross-examination, and that such
witness can be produced, an order shall not be made authorizing the evidence of
such witness to be given by the affidavit.

Affidavit means an affidavit is a written statement of the deponent on

oath duly affirmed before any court or Magistrate or any Oath commissioner
appointed by the court.
Affidavit can be used in the following cases:-

1. The court may, at any time, either of its own motion or on the application
of any party order that any fact may be proved by affidavits.
2. The affidavit of any witness may be read at the hearing unless both party
bona fide desires to cross-examine him and he can be produced.
3. Upon application by a party evidence of a witness may be given on
affidavit, but the court may at the instance of either party, order the
deponent to attend the court

for cross-examination, unless he is exempted from personal appearance or his

cross-examination is not required.

Contents of affidavits

1. Affidavits are to be confined to such facts as the deponent can prove from
his own personal knowledge.
2. Statement in affidavit on interlocutory application may be based on the
deponent's belief; provided grounds thereof are given.

Oath

The statement in affidavit must be duly affirmed before any court or

Magistrate or any Oath Commissioner appointed by the court or any notary
appointed under the Notaries Act of 1952.

3.6 Judgment and Decree :-

Order 19 Rule 13 of the code provides that judgment and decree.

Judgment when pronounced

1. The court, after the case has been heard, shall pronounce judgment in an
open court, either at once, or as soon thereafter as may be practicable and
when the judgment is to be pronounce on some future day, the court shall
fix a day for that purpose, of which due notice shall be given to the
parties or their pleaders.
2. Where a written judgment to be pronounced, it shall be sufficient if the
findings of the court on each issue and the final order passed in the case
are read out and it shall not necessary for the court to read out the whole
judgment.
3. The judgment may be pronounced by dictation in open court to a
shorthand writer if the judge is specially empowered b y the High Courts
in this behalf.
 The C.P.C. does not provide a time for the period between the hearing
of the arguments and the delivery of a judgment. Nevertheless an unreasonable
delay between hearing of arguments and delivery of judgment, unless explained
by exceptional or extraordinary circumstances is highly undesirable even when
written arguments are substituted. It is not unlikely that some points which the
litigant considers important may escape notice. But what is more important is
that the litigant must have complete confidence in the result of litigation. This
confidence tends to be shaken if there is excessive delay between hearing of
arguments and delivery of judgment. Justice must not only be done but must
manifestly appear to be done.

Object of judgment:-

Its object is to support by most cogent reasons the conclusion arrived

at by the judge. If the judge elaborately records the fluctuations of his mind
such judgment may defeat the object of judgment.

Requisites of judgment:-

1. Judgment shall be dated and signed by the Judge in open court at time of
pronouncing.
2. Judgment of a Small Causes court may contain only point for
determination and the decision thereon.
3. It is not for the court to express its opinion on various questions raised in
the course of arguments, when such questions are not in issue in a suit or
proceeding.

When judgment becomes final:-

A question which stands finally decided cannot be reopened neither

has the court any further jurisdiction upon the signature being appended on the
judgment by oral mention. The issue stand concluded as soon as the judgment is
pronounced and the same is signed.

Contents of decree:-

1. The decree shall agree with the judgment: it shall contain

a) The number of the suit

b) The names and description of the parties

c) Particulars of the claim

d) Claim specification of the relief granted or other determination of the suit

e) The amount of costs incurred in the suit and by whom or out of what
property it is to be paid and any order as to set-off of the costs of one part
against the other.

2. The decree shall be signed by the Judge. If the Judge who gave judgment has
vacated office, the decree may be signed by his successor, or if the court has
ceased to exist by the Judge of any court to which the Judge was subordinate.

Decree in particular cases:-

1. Suit for recovery of immovable property

Order 20, Rule 9 of the Code provides the decree shall contain a
description of such property sufficient to identify.

Ex: Boundaries or numbers in a record of settlement or survey.

Where a decree is obtained for possession of land, it will carry with it

the possession of account book as well.

2. Suit for delivery of movable property

1. Order 23, Rule 10 of the Code provides that the decree for delivery shall
also state amount of money to be paid in lieu of delivery if it cannot be had. It
should not be left to be determined in execution.

2. In decree for money, court may order postponement of payment or it shall be

by installments. The court may make such order afterwards.

3. Suit for possession of immovable property and mesne profits

Order 20, Rule 12 of the Code provides that there shall be decree for
possession of immovable property. There shall be a preliminary decree for
mesne profits directing it to be ascertained. And a final decree for msne profits
shall be made after inquiry as to the amount. The directive for mesne profits can
be given even after the decree for possession has been passed. In a suit for
partition, the court can give a direction for the ascertainment of future profits,
provided a final decree has not been passed.

4. Administration suits

Order 20, Rule 13 of the Code provides that first a preliminary

decree shall be passed, ordering for inquiry into accounts and claims and giving
other directions. Thereafter a final decree shall be passed; an administration suit
cannot be filed by one of the heirs to obtain possession of the property
wrongfully withheld by another person claming to be heir.

The following persons may maintain an administration suit:

1. A creditor of the deceased when his claim is not paid or by the legal
representatives of the deceased.
2. A legatee where the legacy is not paid to him by the legal representatives
of the deceased.
3. The next-of-kin of the deceased.
4. An executor or administrator

5. Pre-emption suits

1. If the court orders pre-emption and the purchase money has not been
paid into court, the decree shall:

a) Specify a day on or before which the purchase money shall be so paid.

b) Direct that on payment into court of such purchase money, together with
costs on or before the day referred to in clause (a), the defendant shall deliver
possession of the property to the plaintiff, and if payments are not made the suit
shall stand dismissed with costs. The dismissal is automatic.

2. Where the court has adjudicated upon rival claims to pre-emption the
decree shall direct:

a) If claims decreed are equal in degree, the claim of each pre-emption will
take effect on his complying with sub-rule (1) in respect of his proportionate
share of the property including any proportionate share of which the claim of
any pre-emptor failing to comply with the said provisions would, but for such
default, have taken effect.

b) If and in so far the claims decreed are different in degree, that the claim of
the inferior pre-emption shall not take effect unless and until the superior pre-
emptor has failed to comply with the said provisions.

3.7 Execution :-
Execution is the enforcement of decrees and orders by process of the
court so as to enable the judgment-creditor to recover the fruits of the judgment.
The modes in which the court can execute their decrees and orders are set forth
in sections 36, 37 and Order 21 of the Code. The decree passed by the court of
first instance is the decree, to be executed unless and until it is merged in the
decree passed by the High Court.

Application to orders

The provisions of the Code relating to the execution of decrees shall,

so far as they applicable are deemed to apply to the execution of orders as the
order is the formal expression of any decision of a civil court which is not a
decree.

Who may apply for execution?

It is the decree- holder who has to apply for the execution of the
decree. Where a decree is jointly passed in favour of more persons than one,
then unless the decree imposes condition to the country any one or more of joint
decree-holders may apply for the execution of the whole decree for the benefit
of all of them.

Payment made under in the court, may operate as a satisfaction of the

decree, it will be unreasonable to hold that merely because the payment is made
in court interest should cease to rule upon a decree which awards interest until
its payment. Decree holders should be entitled to claim interest until such time
as and when they come to know of the payment in the court.

1. All money payable under a decree shall be paid as follows, namely:-

A. By deposit into the court whose duty is to execute the decree, or sent to
that court by postal money-order or through a bank.
B. Out of court, to the decree-holder by postal money-order or through a
bank or by any other mode wherein payment is evidenced in writing,
C. Otherwise, as the court which made the decree, directs.

2. Where any payment is made under Code the judgment-debtor shall give
notice thereof to the decree-holder either through the court or directly to him by
registered post, with acknowledgement due.

3. Where money is paid by postal money-order or through bank, the money

-order or payment through bank, as the case may be, shall accurately state the
following particulars namely:

a) The number of the original suit.

b) The names of the parties or where there are more than two plaintiffs or
more than two defendants as the case may be, the names of the first two
plaintiffs and first two defendants.

c) How the money remitted is to be adjusted, that is to say, whether it is

towards the principal, interest or costs.

d) The number of the execution case of the court, where such case is
pending,

e) The name and the address of the payer.

4. On any amount paid, interest, if any, shall cease to run from the date of
service of the notice.

5. On any amount paid, interest, if any shall cease to run from the date of
such payment.

Application for execution

The execution proceedings are started by tan application for

execution. Where a decree is for the payment of money the court may, on the
oral application of the decree-holder at the time of passing of the decree, order
immediate execution thereof by the arrest of the judgment-debtor, prior to the
preparation of warrant if he is within the precincts of the court.

Important particulars
1. The number of the suit.
2. the name of the parties
3. the date of the decree
4. where any appeal has been preferred for the decree
5. whether any and what, payment or other adjustment of the matter, in
controversy has been made between the parties subsequent to the decree
6. Whether any and what previous applications have been made for the
execution of the decree, the dates of such applications and their results.
7. the amount with interest due upon the decree or other relief granted
thereby together with particulars of any cross decree, whether passed
before or after the date of the decree sought to be executed
8. the amount of costs
9. the name of the persona against whom execution of the decree sought
10.the mode in which the assistance of the court is required, whether:

a. by the delivery of any property specifically decreed

 b. by the attachment, or by the attachment and sale, or by the sake without
attachment of any property
c. by the arrest and detention in prison of any person
d. by the appointment of a receiver
e. Otherwise, as the nature of the relief granted may require.

Application for attachment of movable property not in judgment-debtor's

possession

If the application is made for the attachment of any movable property

not in possession of the judgment-debtor though belonging to hi, the decree
holder shall annex to the application an inventory of the property to be attached,
containing a reasonably accurate description of the same. If the application is
made for the attachment of any immovable property belonging to a judgment-
debtor it shall contain at the foot:

a) A description of such property sufficient to identify the same and in case

such property can be identified by boundaries or numbers in a record of
settlement or survey, a specification of such boundaries or numbers.

b) A specification of the judgment-debtor's share or interest in such property

to the best of the belief to the applicant and so far as he has been able to
ascertain the same.

Notice before ordering execution:-

The law dos not require any notice to be issued to the party against
who execution is applied for except in the following cases:

1. Where the application for execution is made more than two years after
the date of the decree.
2. Where the interest of the decree-holder has been transferred by
assignment.
3. Where the execution is applied for against the legal representative or
judgment-debtor
4. Where an application is made for execution of a decree filed under
section 44-A
5. Where the decree is for money and execution is sought against the
person of the judgment-debtor unless the proviso applies

Execution against person of judgment-debtor

When an application for execution of money-decree by the arrest or

detention in the civil prison of a judgment-debtor who is liable to the arrested in
pursuance of the application is made, the court shall instead of issuing a warrant
for his arrest issue a notice calling upon him to appear before the court on a day
specified in the notice to show cause why he should not be committed to the
civil prison. No such notice is necessary of the court is satisfied by affidavit or
otherwise that with the object or effect of delaying the execution of the decree,
the judgment-debtor is likely to abscond or leave the local limits of the
jurisdiction of the court. Where no appearance is made by the judgment-debtor
upon the notice the court shall issue a warrant for the judgment-debtor.

Judgment-debtor's remedies in case of non-recognition of payment:-

Where a judgment-debtor satisfies the decree by a payment or

adjustment made out of court which is not certified to the court in time; the
judgment-debtor has the following remedies incase of non-recognition of the
same:

1. A suit for recovery of damages for breach of the contract represented by

the payment or adjustment.
2. A suit to claim back the money that the creditor has not certified to the
executing court
3. A criminal complaint under sections 191,193 and 210 of IPC

Courts by which decrees may be executed

Sections 38 and 39 of the Code provides following decrees may be executed by

the courts

1. Where the decree to be executed is a decree of a court of first instance

the proper court to execute it is the court of first instance.
2. Where the decree to be executed is the decree passed by a court of first
or second appeal, the proper court to execute it also is the court of first
instance.
3. Where the court of first instance has ceased to exist the only court that
can execute the decree, is the court which at the time of the application
for execution would have jurisdiction to try the suit in which the decree
was passed.
4. Where the court of first instance has ceased to have jurisdiction to
execute the decree the proper court to execute the decree is that court
which at the time of the application would have jurisdiction to entertain
the suit in which the decree was passed.
5. A court passing a decree in a suit not accepted from the cognizance of a
small causes court or of which the plain value is not more than Rs. 2,000
may send if it the small causes court in the presidency town, if it is to be
executed there.
Exceptions:-

There are, three cases where the executing court can go behind the decree, and
they are as follows:

1. Where the decree has been made without jurisdiction

The Privy Council has held that if the court which passed the decree
has no inherent jurisdiction to pass it, the decree is nullity and is incapable of
execution.

2. Where the decree is a nullity

A decree passed against a person who was dead at the date of decree
without bringing his legal representatives on the record is nullity and it cannot
be executed against his estate.

3. Where the decree is ambiguous

Though an executing court cannot go behind the decree, it is

competent to construe the decree where the terms are ambiguous, and to
ascertain its precise meaning. If the decree creates a charge on property in
which the judgment-debtor had a widow's estate, the executing court has
jurisdiction to enquire if the charge continued after the widow's death and if it
could be enforce against the property in the hands of her legal representative.

Section 36 of the Code lays down as under:

1. Order for transfer of decree may be passed under the following

conditions. The court which passed a decree may, on the application of the
decree-holder, send it for execution court of competent jurisdiction:

a. If the person against whom the decree is passed actually and

voluntarily resides or carries on business, or personally works for
gain, within the local limits of the jurisdiction of such other court.
b. If such person has no property within the local limits of the
jurisdiction of the court which passed the decree sufficient to
satisfy such decree and has property within the local limits of the
jurisdiction of such other court.
c. If the decree directs the sale or delivery of immovable property
situate outside the local limits of the jurisdiction of the court which
passed it
 d. If the court which passed the decree considers for any other reason
which it shall record in writing, that the decree should be executed,
by such other court.

2. The court which passed a decree may of its own motion send the decree
for execution to any subordinate court of competent jurisdiction.

3. For the purposes of this section a court shall be deemed to be a court of

competent jurisdiction if, at the time of making the application for the transfer
of decree of it, such court would have jurisdiction to try the suit in which such
decree was passed.

Power of the court to which decree is sent:-

Section 24, Order 21, Rules 8 and 9 of code provides the followings:

1. The court executing a decree sent to it shall have the same powers in
executing such decree as if it had been passed by itself. All persons disobeying
or obstructing the execution of the decree shall be punishable by such court in
same manner as if it had passed the decree. And its order in executing such
decree shall be subject to the same rules in respect of appeal as if the decree had
been passed by itself.

2. Without prejudice to the generally of the provisions of the code the

powers of the court shall include the following powers of the court which
passed the decree, namely:

a. Power to send the decree for execution to another court under section 39.
b. Power to execute the decree against the legal representative of the
deceased judgment-debtor under section 50.
c. Power to order attachment of a decree.

3. A court passing an order in exercise of the powers specified in the code

shall send a copy thereof to the court which passed the decree.

4. Nothing in this section shall be deemed to confer on the court to which a

decree is sent for execution any of the following powers, namely:

a. Power to order execution at the instance of the transferee of the decree

b. In the case of a decree passed against any person, other than such a
person.

Execution of decrees passed by foreign courts:-

 Section 44-A of the Code provides that the decree of any superior
court in any reciprocating territory may be executed in India as if it was passed
by a District court in India. Procedure for it is as follows:

1. A certified copy of the decree of the superior court must be filed in

District court in India, along with a certificate from the superior court stating the
extent to which the decree has been satisfied or adjusted.

2. Section 47 of CPC shall apply to such decree; the District court shall
refuse to execute it if the decree falls within any of the exceptions specified in
the code, providing when a foreign judgment is not conclusive, that is:

a) When a judgment was not pronounced by a competent court.

b) When it is not given on the merits of the case.

c) When it appears on the face of it to be founded on an incorrect view of

international law or a refusal to recognize the law of India where such law is
applicable.

d) Where the proceedings in the case were, opposed to natural justice.

e) When it had been obtained by fraud.

f) When it sustains a claim founded on a breach of any law in force in India.

Transferees and legal representatives:-

Section 49 applies to all decrees including mortgage decree. it
provides for the adjustment of equity in favour of the judgment-debtor against
transferees of the decree-holder which the judgment-debtor would have been
entitled to enforce against decree-holder. If the judgment debtor had a right to
set off a decree under Order 21, Rule 18, he has right against the transferee of
the decree-holder.

Ex: A holds a decree against B for Rs. 5,000. B holds a decree against A for Rs.
3,000. A transfer his decree to C, C cannot execute against B for more than Rs.
2,000.

Legal representative of the judgment-debtor:-

Section 50 of the Code provides for the execution of a decree against

the representative of a deceased judgment-debtor. Attachment can be made only
of the property of judgment-debtor found in the hands of the representative, or
of the property of the representative only to the extent that he has sued the
assets of the judgment-debtor without satisfying the debts of the deceased. The
liability of the legal representative is confined to the property of the deceased
which has actually come to his hands. If the decree-holder wants to make him
responsible also for the property of the deceased which might have come to his
hands with due diligence on his part, he should file a suit against him.

Execution against legal representatives:-

Legal representatives cannot raise objection to the execution on the

ground that the applications have not applied for execution against them to the
court which passed the decree under the provisions of Section 50, CPC, Which
provides that where a judgment-debtor dies before the decree has been fully
satisfied, the decree-holder may apply to the court which passed it to execute
the same against the legal representatives of the deceased. The provision has to
be read with Order 21, Rule 22, CPC, Which provides that where an application
for execution is made against the legal representatives of a party to the decree,
the court executing the decree shall issue a notice to the person against whom
execution is applied for, requiring him to show cause, on a date to be fixed, why
the decree should not be executed against him.

The proceedings initiated against a Director of a company in

liquidation under Section 543 of the Companies Act can be continued after his
death against his legal representative and the amount declared to be due in such
misfeasance proceedings can be realized from the estate of the deceased in the
hands of the legal representative. The legal representative, of course, would not
be liable for any sum beyond the value of the estate of the deceased in his
hands.

The Bombay high Court has held that there are two requirements of
an execution application against legal representatives:

1. One is that execution application must be made to the court which passed
the decree.
2. The notice of execution must be issued to the legal representatives by the
court executing the decree.

Procedure in execution

Section 51 of the Code provides that subject to such conditions and

limitations as may be prescribed, the court may, on the application of the
decree-holder, order execution of the decree:

1. by delivery of any property specifically decreed,

 2. by attachment and sale or by sale without attachment of any property,
3. by arrest and detention in prison for such period specified in Section 58,
where arrest and detention in permissible under that section,
4. by appointing a receiver,
5. In such other manner as the nature of relief granted may require.

1. That the judgment-debtor with the object of obstruction or delaying the

execution of the decree:

Where the decree is for the payment of money, execution by detention in prison
shall not be ordered unless after giving the judgment-debtor an opportunity of
showing cause why he should not be committed to prison, the court, for reason
recorded in writing, is satisfied:

a) is likely to abscond or leave the local limits of the jurisdiction of the court

b) his after the institution of the suit in which the decree was passed,
dishonestly transferred, concealed, or removed any part of his property or
committed any other act of bad faith in relation to his property.

2. That the judgment-debtor has, or has had since the date of the decree, the
means to pay the amount of the decree or some substantial part thereof and
refuses or neglects or has refused or neglected to pay the same

3. That the decree is for a sum which the judgment-debtor was bound in a
fiduciary capacity to account.

Appointment of receiver outside jurisdiction

Calcutta High Court has held in B. R. Ray V/S M/S Ganesh and
Company, that the court may appoint receiver of property outside the local
limits of territorial jurisdiction. The principle by which the action of a court in
effecting sales in execution is confined to property situate within its territorial
jurisdiction is prima facie not applicable to a sale by a receiver which need not
necessarily be a sale by public auction as district from private treaty.

Enforcement of decree against legal representatives

Section 52 of the Code provides that where execution was taken

before the death of judgment-debtor, it should be continued after his death by
substituting his legal representative in his place, after giving he notice under
Order 21, Rule 22. Under this section application is to be made to the court
which passed the decree and not to the court to which it has been transferred for
execution. The transferee can also be dealt with application for substitution of
legal representative as jurisdiction of court passing decree is not exclusive.

Ex: A decree passed against a person who died pending the suit without his
legal representatives being brought on the record is a nullity and cannot be
executed against his legal representative.

Decree for injunction also can be enforced against the legal

representative. But such an injunction cannot be against the purchaser of the
property of the defendant, as injunction does not run with the land; decree-
holder's remedy is to institute a fresh suit against the purchaser.

Mode of Execution
Every decree for the payment of money, including a decree for the
payment of money as the alternative to some other relief, may be executed:

1. by the detention in the civil prison of the judgment-debtor

2. by the attachment and sale of his property
3. by both

Decree for specific movable property

1. Where the decree is for any specific movable or for any share in a
specific movable, it may be executed by the seizure, if practicable, of the
movable or share, and by the delivery thereof to the party to whom it has been
adjudged, or to such person as he appoints to receive delivery on his behalf, or
by the detention in the civil prison of the judgment-debtor, or by the attachment
of his property, or by both.

2. Where any attachment has remained in force for three months, if the
judgment-debtor has not obeyed the decree and the decree-holder has applied to
have the attached property sold, such property may be sold, and out of the
proceeds the court may award to the decree-holder, in alternative to delivery of
movable property, such amount, and, in other cases, such compensation as it
thinks fit, and shall pay the balance to the judgment-debtor on his application.

3. Where the judgment-debtor has obeyed the decree and paid all costs of
executing the same which he is bound to pay, or where, at the end of three
months form the date of the attachment, no application to have the property sold
has been made, or if made, has been refused, the attachment shall cease.

The decree for any specific movable property may be executed in any
of the following four methods:
 1. By seizure
2. By detention
3. By attachment
4. By both

Decree for the delivery of immovable property

1. Actual possession

Where the property is in possession of a person bound by the decree,

the decree is executed by delivering possession thereof the person to whom it
has been adjudged, or to his agent and if necessary, by removing any person
bound by decree who refuses to vacate the property.

2. Joint possession

Where the decree is for joint possession of immovable property, such

possession shall be delivered by affixing a copy of the warrant in some
conspicuous place on the property and proclaiming by beat of drum or other
customary mode at some convenient place, the substance of decree.

For putting the decree holder in possession of building or enclosure

the court may, when the person in possession does not afford free access, order
that any lock or bolt be removed or opened, any door be broken open, or any
other necessary act be done.

3. When in occupancy of tenants

Delivery of any immovable property in the occupancy of a tenant or

other person entitled to occupancy is by the same mode.

3.8 Arrest and Detention :-

A judgment-debtor may be arrested in execution of a decree at any

time and on any day except that:

1. No dwelling-house shall be entered after sunset and before sunrise.

2. No outer door of a dwelling-house shall be broken open unless it is in the
occupancy of the judgment-debtor and he refuses or prevents access
thereto.
3. no room in the occupancy of a women shall be entered into without
allowing her a reasonable opportunity to withdraw there from,
4. No arrest shall be made if the judgment-debtor pays the full decretal
amount to the officer arresting him.
Procedure in making arrest

Before ordering arrest and detention in execution of a money-decree,

the court shall issue a notice to the judgment-debtor to show cause against the
order provided that such notice is not necessary if the decree, the judgment-
debtor the object or effect of delaying the execution of the decree, the judgment-
debtor is likely to abscond or leave the jurisdiction of the court. Where in a case
for payment of money execution is applied for against the person of judgment-
debtor the court had before the Amendment of 1936 jurisdiction to issue a
warrant or arrest without any previous service of notice upon the judgment-
debtor.

Procedure on appearance of judgment-debtor

When a judgment-debtor appear before the court in obedience to a

notice issued as above, or is brought before the court after being arrested in
execution of a decree for the payment of money, the court shall hear the decree-
holder in support of his application for the execution and shall give the
judgment-debtor an opportunity to show cause why he should not be committed
to civil prison. Pending the inquiry the court shall detain the judgment-debtor in
the custody of a court office for release him on his furnishing security for his
appearance. On completion of enquiry, the court may either disallow the
application or subject to Section 51 order the judgment-debtor in civil prison,
provided that for giving him an opportunity to satisfy the decree, he may be left
on the custody of a court officer for a period up to 15 days or released on his
furnishing security for appearance.

Detention and release:-

Section 58 of the Code provides that:

A. every detained in civil prison in execution of a decree shall be so detained:

1. Where the decree is for the payment of a sum of money exceeding 5

thousand rupees, for a period not exceeding three months.

2. Where the decree is for the payment of a sum of money exceeding 2

thousand rupees, but not exceeding 5 thousand rupees for a period not
exceeding six weeks.

Provided that he shall be released from such detention before the

expiration of the said period of detention:
 1. On the amount mentioned in the warrant for his detention being paid to
the office-in-charge of the civil prison.
2. On the decree against him being otherwise fully satisfied.
3. On the request of the person on whose application he has been so
detained.
4. On the omission, by the person, on whose application he has been so
detained, to pay subsistence allowance.

B. A judgment-debtor released from detention under this section shall not

merely by reason of his release be discharged from his debt but he shall not be
liable to be re-arrested under the decree in execution of which he was detained
in civil prison.

Persons exempted from arrest

The following persons are exempted from arrest under civil decrees:

1. A judge, magistrate or judicial officer, while going to preside in or

returning from, his court.

2. Where any matter is pending before a tribunal, the parties thereto, their
counsel and recognized agents and witness with summons, except under process
issued by such tribunal for contempt of court, while going to or returning or
attending such tribunal for such purposes. But a judgment-debtor is not
exempted if there is an order for immediate execution.

Exemption of members of legislative bodies from arrest and detention

under civil prison

1. No person shall be liable to arrest or detention in prison under civil

process:

a) if he is a member of

i) Either house of parliament

ii) The legislative assembly or legislature counsel of a state

iii) A legislative assembly of a union territory

During the continuance of any meeting of such house of parliament or, as the
case may be, of the legislative assembly or the legislative counsel.

b) If he is a member of any committee of:

i) either house of parliament

ii) the legislative council of a state

iii) the legislative assembly of a state or union territory

During the continuance of any meeting of such committee.

c) If he is a member of:

i) either house of parliament

ii) A legislative assembly or legislative council of a state having both

such houses.

During the continuance of a joint sitting, meeting, conference or joint

committee of the house of parliament or houses of the state legislature s the case
may be.

2. A person released from detention under the code shall subject to the
provision of the said section be liable to re-arrest and to the further detention to
which have been liable if he had not been released under the provisions of the
code.

3.9 Attachment of Property :-

Section 60 of the Code provides the following property is liable

to attachment and sale in execution of a decree. Those are as follows:

1. lands
2. houses or other buildings
3. goods
4. money
5. bank-notes
6. cheques
7. bill of exchange
8. hundies
9. promissory notes
10.government securities
11.bonds
12.Other securities for money, debts, shares in corporation etc.

The following particulars shall not be liable to such attachment or sale, namely:
1. The necessary wearing apparel, cooking vessels, beds and bedding of the
judgment-debtor, his wife and children, and such personal ornaments as, in
accordance with religious usage, cannot be parted with by any women.

2. Tools of artisans and, where the judgment-debtor is an agriculturalist; his

implements of husbandry and such cattle and seed grain as may, in the opinion
of the court be necessary to enable him to earn his livelihood as such, and such
portion of agricultural procure or of any class of agricultural produce as may
have been declared to be free from liability.

3. Houses and other buildings with the materials and the sites thereof and
the land immediately appurtenant thereto and necessary for their enjoyment
belonging to an agriculturist or a labourer or a domestic servant and occupied
by him.

4. Books of account

5. A mere right to sue for damages

6. Any right of personal service

7. Stipends and gratuities allowed to pensioners of the government or of

local authority or of any other employer or payable out of any service family
pension fund notified in the official Gazette by the central government or the
state government in this behalf, and political pensions.

8. The wages of labourers and domestic-servants, whether payable in

ornaments on the body of a Hindu wife forms part of the stridhan and therefore
cannot be attached in execution of a decree against her husband.

9. Salary to the extent of the first and two thirds of the agriculturist at the
time of attachment.

Where any part of such portion of the salary is liable to attachment has been
under attachment, whether continuously or intermittently, for a total period of
twenty-four months, such portion shall be exempt from attachment until the
expiry of a further period of twelve months, and, where, such attachment has
been made in execution of one and the same decree, shall, after the attachment
had continued for a total period of twenty-four months be finally exempt form
attachment in execution of that decree.

10. The pay and allowances of persons to whom the Air Force Act, 1950, or
the Army Act, 1950, or the Navy Act, 1957 applies.
11. All compulsory deposits and other sums in or derived from any fund to
which Provident Fund Act, 1925, for the time being applies in so far as they are
declared by the said Act not to be liable to attachment.

a) All deposits and other sums in or derived from any fund to which the
Public Provident Fund Act, 1968, for the time being applies, in so far as they are
declared by the said Act as not to be liable to attachment.

b) All money payable under a policy of insurance on the life of the

judgment-debtor.

c) The interest of a lessee of a residential building to which the provision of

law for the time being in force relating to control of rents and accommodation
apply.

12. Any allowance forming part of emoluments of any servant to the

government or any servant of railway company or local authority which
appropriate government, by notification in official Gazette declare to be exempt
from attachment and any subsistence grant or allowance made to any servant
while under suspension.

13. An expectancy of succession by survivorship or other party contingent or

possible right or interest.

14. A right to future maintenance.

15. Any allowance declared by any Indian law; to be exempt from liability to
attachment.

16. Where the judgment-debtor is a person liable for payment of land revenue
any movable property which under any law for the time being applicable to him
is exempt from sale for recovery of an arrear of such revenue.

Attachment of movable property

When the attachment of movable property belonging to the judgment-

debtor but not in his possession is sought an inventory of the property
containing an accurate description of the same shall be annexed to the
application. But where the property to be attached is movable property, other
than agricultural produce, in the possession of the judgment-debtor, the
attachment shall be by actual seizure and the attaching officer shall keep the
same in his own custody, but if it is subject to speedy decay, or when the
expense of keeping it in custody is likely to exceed its value, the attaching
officer may sell it at once.
Movable property not in possession of judgment-debtor

In the case of movable property not in the possession of the judgment-

debtor, the attachment can only be made under Rule 46, by a written order
prohibiting the person in possession thereof from giving it over to the judgment-
debtor. When it is brought to the notice of the court that some property not in
the possession of the judgment-debtor has been attached and the court is
satisfied that it is so it must release the property from attachment under Rule 60,
when the property is movable; the concept of mortgage in possession is not
applicable.

Attachment of immovable property

When the attachment of immovable property is sought, the application

shall contain at foot a description of the property sufficient to identify it, and
also boundaries or number from the record of settlement, debtor's share or
interest in such property.

3.10 Sale of property :-

Any court executing decree may order that any property attached by it
and liable to sale, or such portion thereof as any seem necessary to satisfy the
decree, shall be sold, and that the proceeds of such sale, or a sufficient portion
thereof, shall be paid to the party entitled under the decree to receive the same.

Proclamation of sale

The court shall cause a proclamation of sale of the intended property

to be made in the language of the court. It shall be drawn up after notice to the
decree-holder and the judgment-debtor.

Contents of proclamation:-

1. The property to be sold, or where a part of the property would be

sufficient to satisfy the decree, such part,
2. The revenue assessed upon the estate or part of estate, where the property
to be sold is in interest in an estate or in part of an estate paying revenue
to government.
3. Any encumbrance to which the property is liable.
4. The amount for the recovery of which the sale is ordered.
5. The amount for the recovery of which the sale is ordered.
6. Every other thing which the court considers material for a purchaser to
know inn order to judge of the nature and value of the property.
Sale how conducted in particular cases

1. Agricultural produce

Where the property to be sold is agricultural produce the sale shall be held:

1. If such produce is a growing crop, on or near the land on which such crop
has grown
2. If such produce has been cut or gathered, at or near the threshing floor or
place for treading out gain or the like or fodder-stock on or in which it is
deposited.

Sale relating to movable property in execution of a decree should

ordinarily be held at some place within the jurisdiction of the court ordering
decree. This will bar the case of agricultural produce.

2. Negotiable instruments

In such cases the court may, instead or directing the sale to be made
by public auction, authorize the sale of such instrument or share through a
broker. Where the property to be sold is a growing crop and the crop from its
nature admits of being stored but has not yet been stored, the date of the sale
shall be so fixed as to admit of the crop being ready for storing. If the growing
crop does not admit of being stored, it may be sold before it is cut and gathered.

3. Debt and shares

Where the property sold is a debt not secured by a negotiable

instrument, or is a share in a corporation, the delivery shall be made by a written
order of the court prohibiting the creditor from receiving the debt or any interest
thereon, and the debtor from making payment thereof to any person except the
purchaser, or prohibiting the person in whose name the share may be standing
from making any transfer of the share to any person except the purchaser, or
receiving payment of any dividends or any interest thereon, and the manager,
secretary or other proper officer of the corporation from permitting any such
transfer making any such payment to any person except the purchaser.

Immovable property

When an order for the sale of immovable property has been made, the
court may, on the application of the judgment-debtor and on being satisfied that
there is reason to believe that the decretal amount may be raised by the
mortgage or lese or private sale of such property, or of any reasonable period,
and grant a certificate authorizing him to make the proposed transaction within
the period, provided that the money be paid, not to the judgment-debtor, but to
the court, and by that the mortgage, etc., shall not be absolute until has been
confirmed by the court.

Setting aside sale of immovable property

1. Application to set aside on deposit

Where immovable property has been sold in execution of a decree, any person

a) either owing such property

b) holding an interest in such property by virtue of a little acquired before the

sale, may apply to have the sale set aside on his depositing in court:

1. For payment to the purchaser a sum equal to 50 per cent of the purchase
money,
2. For payment to the decree-holder the amount specified in the sale
proclamation as that for the recovery of which the sale ordered, less any
amount which may since the date of such proclamation have been
received by the decree-holder.

Where a person applies under Rule 90 to set aside the sale he shall
not, unless he withdraws his application, be entitled to make or prosecute an
application under the Rule.

Who may apply under this rule:-

An application under this rule may be made by:

1. Any person owing the property

2. Any person holding an interest in such property by virtue of a title

acquired before the sale.
3. The person entitled to apply under Order 21, Rule 89 includes the
following persons, namely:

a) A person having lesser interest like a lessee or a mortgagee.

b) Any other person with an inchoate title to the property.

c) Any person who is interested in protecting the property on account of his

being in possession or otherwise in pursuance of an incomplete transfer of
property.
Right to apply

An attaching creditor is entitled to apply for setting aside the sale after
depositing sale warrant amount in court.

Person holding an interest in such property:-

1. A transferee from the judgment-debtor, or immovable property sold in

execution of a decree for money, after attachment but before the court-
sale.
2. A co-share in the property sold.
3. Where the share of a member or a joint Hindu family is sold, the other
members having an interest in properties.
4. A person who has obtained a mortgage of the property before the court
sale.

2. Application to set aside the sale on ground of irregularity or fraud:-

1. Where any immovable property has been sold in execution of a decree,

the decree-holder, or the purchaser, or any other person entitled to share
in a rateable distribution of assets, or whose interests are affected by the
sale, may apply to the court to set aside the sale on ground of a material
irregularity or fraud in publishing or conducting it.
2. No sale shall be set aside on the ground of irregularity or fraud in
publishing or conducting it unless, upon the facts proved, the court is
satisfied that the applicant has sustained substantial injury by reason of
such irregularity or fraud.
3. No application to set aside a sale under this rule shall be entertained upon
any ground which the applicant could have taken on or before the date on
which the proclamation of sale was drawn up.

Death, Marriage and Insolvency of the Parties

Effect of the death of a party

Order 22, Rule 1 to 6 and 12 of the Code provides that the suit does
not abate by the death of a plaintiff or defendant if the right to sue survives. If
one of the defendant dies and his legal heir was not substituted within time
prescribed under law, the suit abates as against him alone, but where can be no
abatement of the suit so far the remaining defendants are concerned, if the court
comes to the view that the right to sue did not survive, the suit could be
dismissed without further trial. On the other hand if the court comes to the view
that the right to sue survived and an effective decree could be made against the
surviving defendants only, the court shall proceed to try the suit on merits
against the surviving defendants and shall pass a decree in accordance with the
finding finally arrived at. Since the claim was brought against the firm through
its karta and no substitution was made within the time limited by law, either of
the succeeding karta or of the surviving members of the family, the appeal will
abate as a whole.

Procedure in case of death of one of several defendants or of sole defendant

1. Where one of two or more defendant dies and the right to sue dies not
survive against the surviving defendant or defendants alone or a sole
defendant or sole-surviving defendant dies and the right to sue survives,
the court, on an application made in that behalf cause the legal
representative of the deceased defendant to be made a party and shall
proceed with the suit.

Ex: A files a suit against B and his son C for declaration that the execution sale
was illegal. B dies, and his widow W, and daughter D, are not brought on
record. It was held that the suit abated as a whole.

2. Any person so made a party may make any defence appropriate to his
character as legal representative of the deceased defendant.
3. Where within the time limited by law no application is made under the
code, the suit shall abate as against the deceased defendant.
4. The court whenever it thinks, fit, may exempt the plaintiff from the
necessity of substituting the legal representative of any such defendant
who has failed to file a written statement or who, having field it, has
failed to appear and contest the suit at the hearing, and judgment may, in
such case be pronounced against the said defendant notwithstanding the
death of such defendant and shall have the some force and effect as if it
has been [pronounced before death took place.
5. Where:

a) The plaintiff was ignorant of the death of a defendant, and could not for
that reason, make an application for the substitution of the legal representative
of the defendant under this rule within the period specified in the Limitation
Act, 1963, and the suit has, in consequence abated,

b) The plaintiff applies after the expiry of the period specified therefore in
the Limitation Act, 1963, for setting aside the abatement and also for the
admission of that application under section 5 of that Act on the ground that he
had, by reason of such ignorance, sufficient cause for not making the
application within the period specified in the said Act.
Procedure where there is no legal representative

1. If, in any suit, it shall appear to the court that any party who has died
during the pendancy of the suit has no legal representative, the court may, on
the application of any party to the suit, proceed in the absence of a person
representing the estate of the deceased person, or may by order appoint the
Administrator-General, or an officer of the court or such other person as it
thinks fit to represent the estate of the deceased fort the purpose of the suit, and
any judgment or order subsequently given or made in the suit shall bind the
estate of the deceased person to the deceased person has been a party to the suit.

2. Before making an order under this rule, the court:

a) may require notice of the application for the order to be given to such of
the person having an interest in the estate of the deceased person as it thinks fir,

b) shall ascertain that the person proposed to be appointed to represent the

estate of the deceased person is willing to be so appointed and has no interest
adverse so that the deceased person.

3. If either party dies after the conclusion of hearing of the suit but before
pronouncement of judgment the suit shall not abate.

Death of a party to the suit pending appeal

In a suit where the right to sue would not have survived on plaintiff's
death before decree, and a decree has already been passed in faviour of the
plaintiff, if either party dies pending an appeal, the appeal will not abate when
the right claimed in appeal arises, out of the decree, but it will abate, when the
appeal is to enforce the original right to sue.

Ex: Damage was awarded against a defendant, and the defendant appealed but
he died pending the appeal. It will not abate; his legal representative may carry
on the appeal to get rid of the decree which will otherwise have to be paid out of
the estate of the deceased.

Death of plaintiff after preliminary and before final decree

This rule will not apply after preliminary and before final decree. The
suit will not abate. The Privy Council has also held that a decree once passed
confers right and imposes liabilities which are fixed until the decree is reversed
or varied in appeal.

Decree for or against a dead person

If at the date of the institution of the suit, a party was dead and a decree is
passed against him, it is a nullity. A decree against the defendant, who died
during the pendency of the suit and no legal representative os brought on the
record, is a nullity and cannot be executed against the legal representative. A
decree against a respondent after his death is also a nullity. It has been held in a
recent case by the Punjab High Court that a decree passed against the dead
person is not nullity on that account, it may be erroneous or contrary to law and
liable to be set aside. Decree becomes nullity only when court lacks inherent
jurisdiction to try the matter. Aggrieved party can file review petition or to in
letters patent appeal.

Where a plaintiff died during pendency of appeal and no substitution was made,
the decree was void to the extent to that person's interest. A decree passed by
the Privy Council in ignorance of the death of the party and without substitution
of his heirs has full force and effect. A decree passed after the death of the sole
plaintiff is a nullity. Decree passed in favour of a number of plaintiffs one of
whom is dead at the time, is not necessarily a nullity in it's entirely in every
case. A final decree against a defendant who has died preliminary decree
without substitution of his representatives is not a valid decree.

In the following cases, abatement as regards the deceased was held not to affect
the rest of the suit or appeal:

1. Where the suit was to recover a specific sum of money from the
deceased-defendant and for a specific sum form each of the other
defendants.
2. Where the suit relates to distinct plots of land in the hands of the several
defendants including the deceased defendant or where it relates to
specific shares.
3. Where the liability sought to be enforced against the defendants is joint
and several.

Ex: Liability if compromiser, of a surety, is joint and several

Illustrations

1. X and Y obtain a joint decree for redemption against C whole appeals. X

dies pending the appeal and his legal representatives are not brought on
the record. The appeal abates against X alone. In this case either X or Y
could have sued to redeem.
2. X and Y obtain joint decree for redemption against Z who appeals. X dies
pending the appeal and his legal representatives are not brought on the
record within time, the suit does not abate as a whole, but I can be
 proceeded as against the other heirs of the mortgagor X to the extent of
their proportionate share in the property.

In the following cases suit or appeal abates all, as a whole:

1. If the interest of the defendants in the suit are joint and indivisible and
this interest of the deceased-defendant cannot be separated from those of
the rest.

Ex: A pre-emption suit.

2. If the decree appealed from is joint and indivisible.

Compromise decree
Under Rule 3 it is the duty of the court to examine the terms of the
settlement with care and caution. Court must see if the order can be effectively
enforced against all parties to the compromise. The court must be satisfied that
the agreement is lawful and it can pass a decree in accordance with these only in
so far as it relates to the suit. A court must decree by consent performs a judicial
and not ministerial act. The court must satisfy itself by evidence taken that the
agreement or compromise is a lawful one. Where a compromise is filed in the
court but repudiated by some of the parities to it, court must hold an enquiry
under Rule 3 of the Code.

Formal application for compromise is not necessary

Rule 3 of order 28 does not provide that the court should exercise jurisdiction
under that rule only when there is formal application by one of the parities to
pass a decree in accordance with a compromise or agreement. When such
compromise or agreement is pleaded by a party even by way of evidence in a
suit, it is the duty of the court to proceed to enquire into the existence of such
compromise or agreement and to pass decree in accordance with it if it is
proved.

Order 23, Rule 3 of C.P.C. does not complete a situation when the court can
alter the terms of the compromise. Had there been consent terms duly signed by
the parties and the respective advocates, the court has to pass a consent decree
arrived at between the parties. But if the compromise is not accepted by parties,
the only alternative left to the court is to dispose of the case on its merits in
accordance with law.

UNIT- IV
4.1 SUITS IN PARTICULAR CASES
Suits by or against Government.

In a suit by or against the Government, the authority to be named as plaintiff or

defendant, as the case may be, shall be -

a) in the case of a suit by or against Central Government, the Union of India,

and

b) in the case of a suit by or against State Government, the State.

Notice.

1) Save as otherwise provided in sub-s. (2), no suit shall be instituted against

the Government (including the Government of the State of Jammu and
Kashmir) or against a public officer in respect of any act purporting to be done
by such public officer in his official capacity, until the expiration of two months
next after notice in writing has been delivered to, or left at the office of -

a) in the case of a suit against the Central Government except where it

relates to a railway, a Secretary to the Government;

b) in the case of a suit against the Central Government where it relates to a

railway, General Manager of that Railway;

bb) in the case of a suit against the Government of the State of Jammu and
Kashmir, the Chief Secretary to that Government or any other officer
authorised that Government in this behalf;

c) in the case of a suit against any other State Government a Secretary to

that Government or the Collector of the District.

and, in the case of public officer, delivered to him or left at his office, stating
the cause of action, the name, description and place of residence of the plaintiff
and the relief which he claims; and the plaint shall contain a statement that such
notice has been so delivered or left.

2) A suit to obtain an urgent or immediate relief against the Government

(including the Government of the State of Jammu and Kashmir) or any public
officer in respect of any act purporting to be done by such public officer in his
official capacity, may be instituted, with the leave of the court without serving
any notice as required by sub-section (1); but the court shall not grant relief in
the suit, whether interim or otherwise, except after giving to the Government or
public officer, as the case may be, a reasonable opportunity of showing cause in
respect of the relief prayed for in the suit:

Provided that the court shall, if it is satisfied, after hearing the parties, that no
urgent or immediate relief need be granted in the suit, return the plain for
presentation to it after complying with the requirements of sub-section (1).

3) No suit instituted against the Government or against a public officer in

respect of any act purporting to be done by such public officer in his official
capacity shall be dismissed merely by reason of any error or defect in the notice
referred to in sub-section (1), if in such notice -

a) the name description and the residence of the plaintiff had been so given
as to enable the appropriate authority or the public officer to identify the person
serving the notice and such notice had been delivered or left at the office of the
appropriate authority specified in sub-section (1), and

b) the cause of action and the relief claimed by the plaintiff had been
substantially indicated.

4.2 Suits by Aliens and by or against Foreign

Rules, Ambassadors :-
83. When aliens may sue. - Alien enemies residing in India with the
permission of the Central Government, and alien friends, may use in any Court
otherwise competent to try the suit, as if they were citizens of India, but alien
enemies residing in India without such permission or residing in a foreign
country, shall not sue in any such court.

Explanation. - Every person residing in a foreign country, the Government of

which is at war with India and carrying on business in that country, without a
licence in that behalf granted by the Central Government, shall, for the purpose
of this section, be deemed to be an alien enemy residing in a foreign country.

The test of alien enemy is residence or place of business and not nationality. But
the overrunning of an lien country by an enemy does not, by itself, render a
person resident in such country or a company incorporated therein and carrying
on business as an alien enemy. The Government of the country of residence
must be at war.
84. When foreign States may sue. - A foreign State may sue in any competent
court:

Provided that the object of the suit is to enforce a private right vasted in the
Ruler of such State or in any officer of such State in his public capacity.

A foreign State may sue in any competent court, provided that such foreign
State has been recognized by the Central Government and provided that the
object of the suit of is to enforce a private right vested in the Ruler of such State
or in any officer of such State in his public capacity.

The term "private right" means a right which may be enforced by a foreign State
against private individuals as distinguished from right which one State in its
political capacity may have as against another State in its political capacity.

86. Suits against foreign Rules, Ambassadors and Envoys.

1) No foreign State may be sued in any court otherwise competent to try suit
except with the consent of the Central Government certified in writing by a
Secretary to that Government:

Provided that a person may, as a tenant of immovable property, sue without

such consent as aforesaid a foreign State from whom he holds or claims to hold
the property.

2) Such consent may be given with respect to a specified suit or to several

specified suits or with respect to all suits or any specified class or classes, and
may specify, in the case of any suit or class of suits, the court in which the
foreign State may be sued, but it shall not be given, unless it appears to the
Central Government that the foreign State:

a) has instituted a suit in the court against the person desiring to sue it, or

b) by itself or another, trades within the local limits of the jurisdiction of the
court, or

c) is in possession of immovable property situate within those limits and is

to be sued with reference to such property or for money charged thereon, or

d) has expressly or impliedly waived the privilege accorded to it by this

section.
3) Except with the consent of the Central Government, certified in writing by
a Secretary to that Government, no decree shall be executed against the property
of any foreign State.

4) The preceding provisions of this section shall apply in relation to -

a) any Ruler of a foreign State;

aa) any Ambassador or Envoy of a foreign State;

b) any High Commissioner of a Commonwealth country; and

c) any such member of the staff of the foreign State or the staff or retinue of
the Ambassador or Envoy of a foreign State or of the High Commissioner of a
Commonwealth country as the Central Government may, by general or special
order, specify in this behalf, as they apply in relation to a foreign State;

5) The following persons shall not be arrested under this Code, namely:-

a) any Ruler of a foreign State;

b) any Ambassador or Envoy of a foreign State;

c) any High Commissioner or a Commonwealth country;

d) any such member of the staff of the foreign State or the staff or retinue to
the Ruler, Ambassador or Envoy of a foreign State or of the High
Commissioner of a Commonwealth country as the Central Government may, by
general or special order, specify in this behalf.

6) Where a request is made to the Central Government for the grant of any
consent referred to in sub-section (1), the Central Government shall, before
refusing to accede to the request in whole or in part, give to the person making
the request a reasonable opportunity of being heard.

Suits by or against Corporation

In suits by or against a corporation, any pleading may be signed and verified on

behalf of the corporation, by the secretary or by any director or other principle
officer of the corporation who is able to depose to the facts of the case. (Order
XXIX, Rule 1).

Suit for injunction. - Failure of plaintiff to prove that defendant had

encroached suit land. Disentitled plaintiff to relief of injunction for want of
cause of action.
Subject to any provision regulating service of process, where the suit is against
a corporation, the summons may be served-

a) on the secretary or any director, or other principal officer of the

corporation, or

b) by leaving it or sending it by post addressed to the corporation at the

registered office or if there is no registered office then at the place where the
corporation carries on business. (Order XXIX, Rule2).

The court may, at any stage of the suit, require the personal appearance of the
secretary or any director, or other principal officer of the corporation who may
be able to answer material questions relating to the suit. (Order XXIX, Rule 3).

Suit by or against firms

The procedure relating to the suits by or against firms is given in Order XXX of
the Code. It states that any two or more persons claiming or being liable as
partners and carrying on business in India may sue or be sued in the name of the
firm (if any) of which such persons were partners at the time of the accruing of
the cause of action, and any party to a suit may in such cause apply to the court
for a statement of the names and addresses of the persons who were, at the time
of the accruing of the cause of action partners in such firm, to be furnished and
verified in such manner as the court may direct. In a suit by or against a firm,
the pleadings may be signed and verified by anyone of the parties. (Order XXX,
Rule 1).

Suits by or against minors and persons of unsound

mind
Minor is a person who has not completed the age of 18 years and in the case of
a minor of whose person or property a guardian has been appointed by a court
or whose property is under a Court of Wards, the age of majority is completion
of 21 years.

Every suit by a minor shall be instituted in his name by a parson who, in such
suit, shall be called the next friend of the minor. The next friend should be a
person who is of sound mind, who has attained majority, who is not a defendant
and whose interest is not adverse to that of the minor. (Order XXXII, Rules 1
and 4)

Explanation 1 to Rule 1 or Order XXXII lays down that in this Order "minor"
means a person who has not attained his majority within the meaning of S.3 of
the Indian Majority Act, 1875, where the suit relates to any of the matters
mentioned in cls. (a) and (b) of S. 2 of that Act or to any other matter.

Clauses (a) and (b) of S. 3 of the Indian Majority Act, 1875, lay down that
nothing herein contained shall affect : 9a) the capacity of any person to act in
the following matters, namely, marriage, dower, divorce and adoption; (b)
religion or religious rites and usages of any class of citizens of India.

Under the provisions of S. 3 of the Indian Majority Act, 1875, every minor of
whose person or property, or both, a guardian, other than a guardian for a suit
within the meaning of Chapter XXXI of the Code of Civil Procedure, has been
or shall be appointed or declared by any Court of justice before the minor has
attained the age of 18 years, and every minor of whose property the
superintendence has been or shall be appointed or declared by any Court of
Justice before the minor has attained the age of 18 years, and every minor of
whose property the superintendence has been or shall be assumed by any Court
of Wards before the minor has attained that age shall, notwithstanding anything
contained in the Indian Succession Act, or in any other enactment, be deemed to
have attained his majority when he shall have completed his age of 21 years and
not before.

4.3 Suits by Indigent Persons :-

Who is an indigent person? - A person is an indigent person: (1) if he is not
possessed of sufficient means (other than property exempt from attachment in
execution of a decree and the subject of the suit) to enable him to pay the fee
prescribed by law for the plaint in the suit proposed to be instituted by him, or
92) where no such fee is prescribed, if he is not entitled to property worth one
thousand rupees other than the property exempt from attachment in execution of
a decree, and the subject-matter of the suit. (Order XXXIII, Rule 1, Expln. I).

Any property which is acquired by a person after the presentation of his

application for permission to sue as an indigent person, and before the decision
of the application, shall be taken into account in considering the question
whether or not the applicant is an indigent person. (Order XXXIII, Rule 1,
Expln. II).

Where the plaintiff sues in a representative capacity, the question whether he is

an indigent person shall be determined with reference to the means possessed by
him in such capacity. (Order XXXIII, Rule 1, Expln. III).

The benefit of Order XXXIII, C.P.C. is conferred on persons without 'sufficient

means' and not without any means at all. Pauperism is not a pre-requisite for the
leave. What is contemplated is not possession of property but sufficient means.
Capacity to raise money and not actual possession of property alone is what the
court has to look into. Possession of sufficient means refers to possession of
sufficient realizable property which will enable the plaintiff to pay the court-fee.
Possession of hard cash sufficient enough to pay the court-fee is not a pre-
requisite to make one a person of sufficient means within the meaning of the
rule. A person entitled to sufficient property may nevertheless be not possessed
of sufficient means to pay court-fee. Even one who is entitled to or possessed of
property cannot be for that reason alone held to be having sufficient means.
What is intended and provided is that justice shall not be denied to a person for
the reason what he is not having sufficient means of pay court-fee.

INTERPLEADER
4.4 Interpleader suit:-

An in interpleader suit is one in which the real dispute is between the defendants
only and the plaintiff is not really interested in the matter. The defendants
interplead, i.e., plead against each other instead of pleading against the plaintiff
as in an ordinary suit. The defendants interplead as to their claims to the debt or
property over which the plaintiff has no interest and which he is ready to pay or
deliver to the rightful claimant. The relevant provision is to be found in S. 88 of
the Code which reads thus:

88. Where interpleader suit may be instituted.- Where two or more persons
claim adversely to one another the same debt, sum of money or other property,
movable or immovable, from another person, who claims no interest therein
other than for charges or costs and who is ready to pay or deliver it to the
rightful claimant, such other person may institute a suit of interpleader against
all the claimants for the purpose of obtaining a decision as to the person to
whom the payment or delivery shall be made and of obtaining indemnity for
himself:

Provided that where any suit is pending in which the rights of all parties can
properly be decided, on such suit of interpleader shall be instituted.

In every interpleader suit the plaint shall, in addition to other statements

necessary for plaints, state-

1) that the plaintiff claims no interest in the subject-matter in dispute other

than for charges or costs;

2) the claims made by defendants severally; and

3) that there is no collusion between the plaintiff and any of the defendants.
(Order XXXV, Rule 1).

Where the thing claimed is capable of being paid into court or placed in the
custody of the court, the plaintiff may be required to so pay or place it before he
can be entitled to any order in the suit. (Order XXXV, Rule 2).

Procedure at first hearing.- (1) At the first hearing of the suit the court may:
(1) declare the plaintiff discharged from all liability to the defendant in respect
of the thing claimed, award him his costs and dismiss him from the suit; (b) if it
thinks that justice or convenience so require, retain all parties until the final
disposal of the suit. [Order XXXV, Rule 4(1)].

2) Where the court finds that the admissions of the parties or other evidence
enable it to do so, it may adjudicate the title to the thing claimed. [Order
XXXV, Rule 4(2)].

3) Where the admissions of the parties do not enable the court so to adjudicate,
it may direct-

a) that an issue or issues between the parties be framed and tried, and

b) that any claimant be made a plaintiff in lieu of or in addition to the

original plaintiff, and shall proceed to try the suit in the ordinary manner. [Order
XXXV, Rule 4(3)].

Order XXXV, Rule 4, must be followed where there is a dispute as to right to

collect rent after the death of the landlord. The court could allow the tenant to
deposit the rent and direct the claimants to file separate suit to decide the title.

4.5 COMMISSIONS
[Sections 75-78 and Order XXVI]

75. Power of court to issue commissions. - Subject to such conditions and

limitations as may be prescribed, the court may issue a commission -

a) to examine any person;

b) to make a local investigation;

c) to examine or adjust accounts;

d) to make a partition;
e) to hold a scientific, technical or expert investigation;

f) to conduct sale of property which is subject to speedy and natural decay

and which is in the custody of the court pending the determination of the suit; or

g) to perform any ministerial act.

Examination. - Any court may in a suit issue a commission either of its own
motion or on the application, supported by affidavit or otherwise, of any party
to the suit, or of the witness to be examined, for the examination on
interrogations or otherwise of : (1) any person resident within its jurisdiction
who is from sickness or infirmity unable to attend it : provided that a
commission for examination on interrogatories shall not be issued unless the
court, for reasons to be recorded, thinks it necessary so to do, and the court may
accept a certificate of a registered medical practitioner as evidence of the
sickness or infirmity of any person; (2) any person entitled to exemption from
personal appearance in court as provided in S. 133 of the Code, viz., the
President and Vice-President of India, the Speaker or Chairman of the House of
People, Assembly or Council the Ministers and the Judges of the High Courts
and the Supreme Court; (3) any women, who, according to the customs and
manners of the country, ought not to be compelled to appear in public; (4) any
person who is about to leave the local limits of its jurisdiction before the date on
which he is required to be examined in court; (5) any person resident beyond the
local limits of its jurisdiction; and (6) any person in the service of the
Government, who cannot, in the opinion of the court, attend without detriment
to the public service; provided that in cases (4) to (6) where, under Rule 19 of
Order XVI (which lays down that no witness be ordered to attend in person
unless resident within certain limits), a person cannot be ordered to attend a
court in person, a commission shall be issued for his examination if his evidence
is considered necessary in the interests of justice and provided further that a
commission for examination of such person on interrogatories shall not be
issued unless the court, for reasons to be recorded, thinks it necessary so to do.
(Order XXVI, Rules 1 and 4).

Examination of witnesses on commission is in the discretion of the court. It

should examine witnesses on commission only for adequate reasons, with are
broadly mentioned above.

The court is empowered to issue a commission for examination of a person on

interrogatories or otherwise.

It is open to the court to cancel the earlier order and to drop the proceeding for
examination on commission.
A commissioner was appointed by the court to inspect how much noise would
be created by saw mill. The commissioner was the court's officer, and
obstructing an officer of the court is a serious violation of law. Anyone who
resorts to this kind of tactic will not be entitled to any relief under Article 226 of
the Constitution.

4.6 Arrest And Attachment Before Judgment

(Order XXXVIII):-
Arrest before Judgment

Where at any stage of a suit, excepting suits respecting any immovable property
referred to in S. 16, clauses (a) to (d), the court is satisfied, by affidavit or
otherwise,-

a) that the defendant, with intent to delay the plaintiff, or to avoid any
process of the court or to obstruct or delay the execution of any decree that may
be against him, -

(i) his absconded or left the local limits

of the jurisdiction of the court, or

(ii) is about to abscond or leave the local

limits of the jurisdiction of the court, or

(iii) has disposed of or removed from the

local limits of the jurisdiction of the court his property or any part thereof, or

b) that the defendant is about to leave India under circumstances affording

reasonable probability that the plaintiff will or may thereby be obstructed or
delayed in the execution of any decree that may be passed against the defendant
in the suit,

the court may issue a warrant to arrest the defendant and bring him before the
court to show cause why he should not furnish security for his appearance.

The defendant shall not, however, be arrested if he pays to the officer entrusted
with the execution of the warrant any sum specified in the warrant as sufficient
to satisfy the plaintiff's claim. (Order XXXVIII, Rule 1).

Security. - Where the defendant fails to show such cause the court shall order
him either to deposit in court money or other property sufficient to answer the
claim against him or to furnish security for his appearance at any time when
called upon while the suit is pending and until satisfaction of any decree that
may be passed against him in the suit. (Order XXXVIII, Rule 2).

Where the defendant fails to deposit in court money or other property sufficient
to answer the claim against him or to furnish security for his appearance, the
court may commit him to the civil prison until the decision of the suit, or where
a decree is passed against the defendant, until the decree has been satisfied.

No person shall be detained in prison for a longer period than six months if the
amount or value of the subject-matter exceeds Rs. 50, nor for a longer period
than six weeks when the amount or value of the subject-matter of the suit does
not exceed Rs. 50. (Order XXXVIII, Rule 4).

Attachment before Judgment

Order 38, Rules 5, 6,8,10 to 13 of the Code provides the followings:

1. Where at any stage of the suit, the court is satisfied, by affidavit or

otherwise, that the defendant, with intent to obstruct or delay the execution of
any decree that may be passed against heirs:

a) Is about to dispose of the whole of any part of his property.

b) Is about to remove the whole or any part of his property from the local
limits of the jurisdiction of the court.

The court may direct that the defendant, within a time to be fixed by it either to
of the court, when required, the said property or the value of the same, as such
portion thereof as may be sufficient to satisfy the decree, or to appear and show
cause why he should not furnish security.

Object of attachment before judgment

The main object of attachment before judgment is to enable the plaintiff to

realize the amount of the decree, if one is eventually passed from the
defendant's property. The attachment before me judgment is an encumbrance
preventing the owner of the property to create encumbrance, sale or create
charge thereon. Attachment before judgment does not create any right, title or
interest, but it disables the judgment debtor to create any encumbrances on the
property. Ultimately, when decree is passed, the property forms part of the
decree so as to enable the decree-holder to proceed with against the property to
release the decree debt. Even the properties which are not part of the schedule
mentioned in the suit will nonetheless be the part of the decree. It is not
mandatory that the property should be specifically mentioned, it is so only in a
mortgage suit under relevant clauses of Order 34 of the Code. The decree-
holder is entitled to proceed against those items mentioned in the petition. The
decree would be executed as provided in other mode of the decree. And
attachment properties are also liable to be sole as integral part of the decree.

Action by court

1. If the defendant fails to show cause, the property shall be attached.

2. If the defendant furnishes security or the suit is dismissed attachment will
be withdrawn.

Right to third parties attached property

a) They shall not be affected in so far as they existed prior to attachment.

b) Attachment shall not bar a decree-holder against the defendant from

applying for the sale of the property under attachment in execution of his
decree.

Restrictions of attachment

1. No attachment or production of agricultural produce in possession of an

agriculturist.
2. A Small Causes Court shall not make an order for attachment of
immovable property.

Remedies in case of unjustified arrest or attachment or injunction

Section 95 of the Code provides that the court may award against the
plaintiff reasonable compensation not exceeding 50 thousand rupees provided it
is within the jurisdiction of the court for the expenses or injury caused to him if
the order of arrest or attachment or injunction was based on insufficient
grounds. This can be done on the application of the defendant.

Temporary Injunctions and Interlocutory Orders

Order XXXIX of the Coder provides that an injunction is a judicial
process by which a party is required to do or to refrain from doing any
particulars act. It aims at preserving the subject-matter of the suit in status quo
for the time being. Injunctions are of two kinds: those are as follows,

1. Temporary Injunction
2. Perpetual Injunction.
The object of granting temporary injunction is to maintain and preserve status
quo at the time of institution of the proceedings and to prevent any change in it
until the final determination of the suit. It is the nature of protective relief
granted in favour of party to prevent future possible injury. The need of such
protection has to be judged against the corresponding need of the defendant to
be protected against injury resulting from exercising his own legal rights. The
court must weigh one need against another and determine where the balance of
convenience lies and may pas an appropriate order in exercise of its
discretionary power.

Principles governing temporary injunctions:-

The court should satisfy that there is a reasonable probability for the success of
the plaintiff:

1. That there is prima facie case between the parties.

2. That the plaintiff will suffer irreparable loss in case the temporary
injunction is not granted.

3. That the balance of convenience lies in favour of the plaintiff.

Effect of temporary injunction

It does not effect any subsequent alienation of the property so as to

make it void. The only penalty provided in Rule 2(3) is that other property
belonging to the defendant may be attached and sold to satisfy the decree
against him and he may be detained in civil prison or punished for Contempt of
Court. Thus it differs from an attachment in which any transfer is void.

Ground for granting temporary injunction

Where in any suit it is proved by affidavit or otherwise:

1. That any property in dispute in a suit is in danger of being wasted,

damaged or alienated by any party to the suit, or wrongfully sold in execution of
a decree.

2. That the defendant threatens, or intends to remove or dispose of his

property with a view to defrauding his creditors.

3. That the defendant threatens to dispossess the plaintiff or otherwise cause

injury to the plaintiff in relation to any property in dispute in the suit.

Consequence of disobedience or breach of injunction

1. In the case of disobedience any injunction granted or other made under
Rule 1 or Rule 2 on breach of any of the terms on which the injunction was
granted or the order made, the court granting the injunction or making the order
or any court to which the suit or proceeding is transferred, may order the
property of the person guilty of such disobedience or breach to be attached, and
may also order such person to be detained in the civil prison for a term not
exceeding three months, unless in the meantime the court directs his release.

2. No attachment made under this rule shall remain in force for more than
one year at the end of which time, if the disobedience or breach continues the
property attached may be sold and out of the proceeds, the court may award
such compensation as it thinks fit to the injured party and shall pay the balance,
if any to the party entitled thereto.

RECEIVERS
4.7 Appointment of receiver :-

Appointment.- Where it appears to the court to be just and convenient, the

court may, by order, appoint a receiver of any property whether before or after
decree; remove any person from the possession or custody of the property; and
commit the same to the possession, custody or management of the receiver
(Order XL, Rule 1). The appointment of a receiver is in the discretion of the
court. That discretion has to be exercised not arbitrarily but cautiously,
judicially and according to legal principles after a consideration of the
circumstances of the case. The main object and purpose of his appointment is
the preservation of the subject-matter of the litigation pending a judicial
determination of the rights of the parties thereto. He is appointed for the
protection of rights of the parties or for the prevention of injury. The court
should not appoint a receiver or property in the possession of the defendant
claiming the same by legal title, unless the plaintiff can show prima facie that he
has a strong case and good title to the property. He must have an interest in the
property to be affected by the order.

The person who holds possession under agreement in expected to act pending
suit as receiver on behalf of the court and his possession cannot be disturbed
and no application of other party for appointment of Receiver can be
entertained.

A receiver is appointed for the preservation of the subject-matter of the

litigation pending a judicial determination of the rights of the parties thereto. It
is done for the protection of rights or for prevention of injury or irreparable loss.
He is an officer of the court and his possession of the property is in the
possession of the court and it is for the benefit of all the parties who are
concerned with the said property. Any money in his hands is in custodia legis
for the person who can make a little to it. When a court receiver is appointed in
respect of any property it is said to be in custodia legis and the court holds the
property for the benefit of true owner. The court receiver acts on behalf of the
court.

The appointment of a receiver is in the discretion of the court. The

power should not be exercised as a matter of course or for the reason that it can
do no harm to appoint one. A receiver should not be appointed when there is a
bona fide of the property unless there is some cogent ground for interference.
There should be a well founded fear that the property in question will be
dissipated or other irreparable mischief may be done.

Power of Receiver.- Being a servant of the court, a receiver has only such
power and authority as is conferred on him by the court. His powers are entirely
conditioned by the term of his appointment, which may be varied by the court
subsequently. The court may confer upon him all such powers, mentioned in
Order XL, Rule 1 (1) (d), viz. as to bringing and defending suits and for the
realization, management, protection, preservation and improvement of the
property, the collection of the rents and profits thereof, the application and
disposal of such rents and profits, and the execution of documents as the owner
himself has, or such of those powers as the court thinks fir.

Legal consequences of the receiver being an officer of the court

1. Property in the hands of the receiver cannot be attached without the

court's permission.

2. No party can enter into an agreement with him so as to restrict and control
his powers or for payment of any remuneration to him.

3. Receiver cannot purchase the property over which he is receiver.

4. He cannot be sued nor can he sue without the leave of the court.

5. He has to account to the court for gain or loss and if he fails to account or
pay the account due, or occasions loss by his conduct, the court may realize it
from him by attaching and selling property.

Obligation of the receiver

1. Furnish such security as the court thinks fit duly to account for what he
shall receiver in respect of the property.
2. Submit his accounts at such periods and in such form as the court directs.

3. Pay the amount due from his as the court directs.

4. Be responsible for any loss occasioned to the property by the willful

default or gross negligence.

4.8 APPEALS
(Ss. 96-122 & Orders XLI, XLIIII, XLIV & XLV)

96. Appeal from original decree:-

1. Save where otherwise expressly provided in the body of this Code or by

any other law for the time being in force, an appeal shall lie from every decree
passed by any court exercising jurisdiction to the Court authorised to hear
appeals from the decision of such court.

2. An appeal may lie from an original decree passed ex. Parte.

3. No appeal shall lie from a decree passed by the Court with the consent of
parties.

4. No appeal shall lie, except on a question of law from a decree in any suit
of the nature cognizable by Courts of Small Courses, when the amount or value
of the subject-matter of the original suit does not exceed [ten thousand rupees].

The right to prefer an appeal from the judgment of the court of first instance is
derived from the provisions of S. 96 of the Code. This is subject to the
restriction contained in sub-s. (4) added by the Amendment Act, 1976. An
appeal shall. However, lie on a question of law even in cases referred to in
sub0s. (4) of S. 96 of the Code.

The remedy of appeal is a creation of statute and is not an inherent right of a

person. If the Legislature in its wisdom thinks in a particular case that on appeal
should be provided, it cannot be held that the legislation is bad.

By the Civil Procedure Code (Amendment) Act, 1976, the definition of the
word "decree" has been amended and "the determination of any question under
S. 47, C.P.C" has been taken out of the definition of 'decree'. In the
circumstances, an order determining a question under S. C.P.C. is no longer a
decree. Since such order is no longer a decree under the Code as amended, on
appeal lies against the said order.
Limitation. - An appeal shall be accompanied by a memorandum of grounds
together with judgment and decree as envisaged under Order XLI, Rule 1. The
limitation begins to run from the date of the supply of the certified copies of the
judgment and decree. The time taken by the court for their supply from the date
of application till the date of supply should be excluded in computation of the
period of limitation. Even if application for certified copies of judgment and
decree were separately filed, the combined period would be excluded.
Therefore, the right to file an appeal arises only from the date when the decree
was not time-barred.

The State has offered no explanation of delay in filing appeal. The court
condoned delay without recording satisfaction of reasonable or satisfactory
explanation for inordinate delay. Such order cannot be sustained as condonation
of delay was not proper and judicious.

Distinction between an appeal and revision. - There is an essential distinction

between an appeal and revision. An appeal is a continuation of the proceedings;
in effect the entire proceedings are before the appellate authority and it has
power to review the evidence subject to the statutory limitation prescribed. But
in the case of a revision, whatever powers the revisional authority may or may
not have it has not power to review the evidence unless the statute expressly
confers on it that power.

4.9 Reference - Review And Revision

(Ss. 113, 114, 115, o.46, o46)

REVIEW

(S. 114 AND Order XLVII)

114. Review. - Subject as aforesaid, and person considering himself aggrieved -

a) by a decree or order from which an appeal is allowed by this Code, but

from which no appeal has been preferred.

b) By a decree or order from which no appeal is allowed by this Code, or

c) By a decision on a reference from a Court of Small Causes,

may apply for a review of judgment to the court which passed the decree or
made the order, and the court may make such order thereon as it thinks fit.
All decrees or orders cannot be reviewed. The right of review has been
conferred by S. 114 and Order XLVII, Rule 1 of the Code. Section 114 provides
that any person considering himself aggrieved : (a) by a decree or order from
which an appeal is allowed by this Code, but from which no appeal has been
preferred, (b) by a decree or order from which no appeal is allowed by this
Code, or (c) by a decision on a reference form a court of small causes, may
apply for a review of the judgment to the court which passed the decree or made
the order on any of the following grounds mentioned in Order XLVII, Rule 1,
viz.-

1) discovery by the applicant of new and important matter or evidence

which, after the exercise of due diligence, was not within his knowledge or
could not be produced by him at the time when the decree was passed or made,
or

2) on account of some mistake or error apparent on the face of the record, or

3) for any other sufficient reason,

and the court may make such order thereon as it thinks fit.

Explanation. - The fact that the decision on a question of law on which the
judgment of the court is based has been reversed or modified by the subsequent
decision of a superior court in any other case, shall not be a ground for the
review of such judgment.

The powers of review are intended for correction of mistakes or errors apparent
on the face of the record. Under Orissa Board of revenue Act, 1951, Section 7
confers no wider powers of review on Board or its delegate the commissioner
them the powers of review under Order XLVII, Rule 1, C.P.C.

REVISION

[S. 115]

115. Revision. -

1. The High Court may call for the record of any case which has been
decided by any court subordinate to such High Court and in which no appeal
lies thereto, and if such subordinate court appears -

a) to have exercised a jurisdiction not vested in it by law, or

b) to have failed to exercise a jurisdiction so vested, or

c) to have acted in the exercise of its jurisdiction illegality or with material
irregularity.

the High Court may make such order in the case as it thinks fit:

[Provided that the High Court shall not, under this section, vary or reverse any
order made, or any order deciding an issue, in the course of a suit or other
proceeding, except where the order, if it had been made in favour of the party
applying for revision, would have finally disposed of the suit or other
proceeding.]

2. The High Court shall not, under this section, vary or reverse any decree or
order against which an appeal lies either to the High Court or to any court
subordinate thereto.

3. A revision shall not operate as a stay of suit or other proceeding before

the Court except where such suit or other proceeding is stayed by the High
Court.

Explanation. - In this section, the expression "any case which has been decided'
includes any order made, or any order deciding an issue, in the course of a suit
or other proceeding.

Jurisdiction. - The word 'jurisdiction' is a verbal coat of many colours.

Jurisdiction originally seems to have had the meaning which Lord Reid ascribed
to it in Anisminic Ltd. v. Foreign Compensation Commission [(1969) 2 A.C.
147], namely, the entitlement "to enter upon the enquiry in question". It has, as
a result of a catena of Indian decisions, assumed a restricted meaning. Section
115 confers power of revision on the High Court in a case not subject to appel
thereto. According to the Law Commission, errors of jurisdiction and errors
apparent on the face of the record could be corrected under Art. 227 of the
Constitution. But the third clause under S. 115 could not be covered by Art.
227, viz., when the court acts or exercises jurisdiction on the subordinate court's
acting in the exercise of its jurisdiction illegally or with material irregularity.
The remedy under Art. 227 is also costly for the poor litigants, and the remedy
provided in S. 115, is, on the other hand, cheap and easy. The Committee,
however, felt that, in addition to the restrictions contained in S. 115, an overall
restriction on the scope of the applications for revision against interlocutory
orders should be imposed. Having regard to the recommendations made by the
law Commission in its Fourteenth and twenty-seventh reports, the Committee
recommended that S. 115 of the Code should be retained subject to the
modification that no revision application shall lie against an interlocutory order
unless either of the following conditions is satisfied, namely:-
 (i) that if the orders were made in favour of the
applicant, it would finally dispose of the suit or other proceeding; or

(ii) that the order, if allowed to stand, is likely to

occasion a failure of justice or cause an irreparable injury.

4.10 Caveat (Sec. 148-A) - Inherent Powers of The

Court
(Ss. 148, 1491 151):-

148-A. Right to lodge a Caveat. -

1) Where an application is expected to be made, or has been made in a suit or

proceeding instituted, or about to be instituted, in a court, any person claiming a
right to appear before the court on the hearing of such application may lodge a
caveat in respect thereof.

2) Where a caveat has been lodged under sub-section (1), the person by
whom the caveat has been lodged (hereinafter referred to as the caveator), shall
serve a notice of the cavent by registered post, acknowledgement due, on the
person by whom the application has been, or is expected to be, made under sub-
section (1).

3) Where, after a caveat has been lodged under sub-section (1), any
application is filed in any suit or proceeding, the court shall serve a notice of the
application of the caveator.

4) Where a notice of any caveat has been served on the applicant, he shall
forthwith furnish the caveator, at the caveator's expense, with a copy of the
application made by him and also with copies of any paper or document which
has been, or may be, filed by him in support of the application.

5) Where a caveat has been lodged under sub-section (1), such caveat shall
not remain in force after the expiry of ninety days from the date on which it was
lodged unless the application referred to in sub-section (1) has been made
before the expiry of the said period.

With a view to preventing any party to obtain an ex part order S. 148 A

empowers any person claiming a right to appeal before the court on the hearing
of any application, which is expected to be made, or has been made, in a suit or
proceeding instituted, or about to be instituted, in a court, to lodge a caveat in
respect thereof. Where a caveat has been lodged, the person by whom the caveat
has been lodged, viz., the caveator, shall serve a notice of the caveat by
registered post, acknowledgement due, on the person by whom the application
has been, or is expected to be, made. Where after a caveat has been lodged, any
application is filed in any suit or proceeding, the court shall serve a notice of the
application on the caveator. Were a notice or any caveat has been served on the
applicant, he shall forthwith furnish the caveator at the caveator's expense, with
a copy of the application made by him and also with copies of any paper of
document which has been. Or may be, filed by him in support of the
application.

The caveat shall not remain in force indefinitely and a time limit of ninety days
has been fixed from the date on which it was lodged.

It is clear from the reading of Rule 11 (1) of Order XLI, C.P.C. that only the
appellant or revisionist or his pleaders are required to be heard and not counsel
for respondent or opposite party or his pleader at the stage of admission of
appeal or revision, even when caveat has been filed. Section 148A provides
hearing of any application to be moved by any person claiming a right to appear
before the court on the hearing of such application. It nowhere lays down that
by filing a caveat a person is entitled to even oppose the admission of appeal or
revision which are continuation of the suit. Memorandum of appeal and revision
are different from other applications moved in them. By filing caveat under S.
148A the caveator or his counsel are not entitled to oppose admission of appeal
or revision. They are entitled only to be heard when any application is expected
to be moved in appeal or revision. It is another case that notices have been
issued to the respondents or opposite parties or their pleader and in that case the
respondents or opposite parties of their pleader are entitled to oppose the
admission but in no other case.

The court has to give an opportunity of hearing to caveators if it has to pass an

order against them.

INHERENT JURISDICTION OF A CIVIL COURT

Since laws are general rules, they cannot regulate for all times to come so as to
make express provision against all inconveniences, which are infinite in
number, and to foresee all cases that may possibly happen with a view to
providing a remedy. A Code however wisely framed cannot make express
provisions against all contingencies and for all times. The purpose of the law is
to secure the ends of justice. The laws are not ends in themselves but are only a
means for securing justice. If the ordinary rules of procedure result in injustice
in any case and there is no other remedy, it is the duty of the court override
those rules for achieving the ends of justice.
It is to serve this necessity that provision has been made in S. 151 of the Code
of Civil Procedure, which reads thus:

151. Saving of inherent powers of court. - Nothing in this Code shall be

deemed to limit or otherwise affect the inherent power of the court to make such
orders as may be necessary for the ends of justice or to prevent abuse of the
process of the court.

Saving clause. - It is a saving clause and only gives legislative recognition of an

age-old and well established principle that every court has inherent power to do
that real and substantial justice between the parties for administration of which
alone it exists. It does not confer any substantive right on parties but is meant to
get over the difficulties arising from rules of procedure. Section 151 fives no
right to a party to make an application. It gives power to the court to pass such
orders as it thinks fit. Section 151 is really intended to prevent courts from
being rendered impotent by any omission in the Code; but it is not intended to
override the main enactment of the law.

The inherent powers are inherent in the court itself and have not been conferred
by the Code; these powers are independent of and in addition to any other
powers that the court may exercise under the Code.

Illustrations. - The court has an inherent power under S. 151, C.P.C.:

a) to consolidate suits and appeals including appeals to the Supreme Court;

b) to postpone the hearing of suits pending the decision of a selected action

or where some of the issues are common in another pending suit;

c) to stay cross-suits on the ground of convenience;

d) to allow a defence in forma pauperis;

e) to grant restitution apart from the provisions of S. 144, C.P.C.;

Where the court rectifies a mistake in a decree in the exercise of its inherent
powers, it has jurisdiction to order restitution of any benefit which may have
been received wrongly by the persons who were not entitled to such benefits but
for the mistake in the decree;

f) to add a party or to transpose parties, or where the appeal is filed against

dead persons to allow the appellant to add legal representatives of the deceased
as parties in a proper case;
g) to entertain the application of a third person to be made a party;

h) to punish summarily by imprisonment for contempts of court committed

by the publication of a libel out of court;

i) to stay the drawing up of the court's own orders or to suspend their

operation, if the necessities of justice so require;

j) to stay the carrying out of a preliminary order pending appeal;

k) to amend decrees by correcting errors in cases not covered by S. 152. The

court has an inherent jurisdiction to rectify its own mistake and to do justice has
been done to them due to the mistake of the court;

l) to restrain by injunction a person from proceeding with a suit in another

court;

m) to vacate an order obtained by fraud practiced upon it or by abusing the

process of the court;

n) to set aside an order made ex parte and without notice to the parties to be
affected thereby if a proper case is substantiated;

o) to remand a suit in a case to which neither Order XLI, Rule 23 not Order
XLI, Rule 25 applies- the court, by reason of its inherent jurisdiction, may order
remand in cases other than the case specified in Order XLI, Rule 23, if it is
necessary for the ends of justice;

p) to interfere where its decree is being executed in a manner manifestly at

variance with the purpose and intent of the decree;

q) to set aside a compromise decree when the court has been misled into
recording it by a statement of the pleader that he was specially authorised to
compromise when in fact he was not so authorised;

r) to stay a suit even when it does not come within S. 10, C.P.C.;

s) to apply the principles of res judicate to cases not falling within S. 11 of

the Code;

t) to recall and cancel the court's invalid orders, etc.

UNIT- V
LIMITATION ACT
5.1 Object of the law of limitation:-

The object of the Act is quiet long possession and to extinguish stale
demands. The object of the Act is not create or define causes of action, but
simply to prescribe the period within which existing rights can be enforced in
courts of law. The principle of the Act is not be enable suits to be brought
within certain periods, but to forbid them being brought after certain periods.

The law of limitation and prescription are based upon the principle
that the law aids the diligent and not the indolent. A man who has negligently
slept over his rights for an undue length of time will not be allowed to litigate in
respect of them. A person who has been in the enjoyment of property, or of a
right, or of an immunity from a demand by another, for, a period of time which
the law has prescribed, will be allowed to enjoy that property, right or immunity
in peace and quiet even thereafter, and will not be harassed by unexpected
litigation cropping up at distant dates, or exposed to stale demands, perhaps
when witnesses of the facts are dead or the evidences of the title lost.

Limitation and Prescription

1. A law of limitation prescribes the time after which a suit or other

proceedings cannot be instituted in a court of law. A law of prescription
prescribes the time at the expiration of which some substantive right may
be acquired or may become extinguished. Prescription has, therefore, a
twofold aspect: as creating a right and extinguishing a right.
2. A law of limitation as merely barring the remedy merely; it does not
touch the right of a person to the debt, damage, goods, person, property,
etc. but in so far as it extinguishes the right of action, limitation is
considered to be a species of prescription.
3. A law of limitation, as merely barring the remedy, is a part of the
procedural or adjective law. A law of prescription, because it affects the
substantive right itself, is part of the substantive law.

A law of prescription lays down the period at the expiry of which a substantive
or primary right is, under certain circumstances, acquired or extinguished. The
term prescription as used in the Limitation Act, excludes, and is opposed to
limitation. A person right is extinguished by prescription when he cannot assert
it either judicially.

Bar of limitation
 Section 3 of the Act provides that subject to the provision of section 4
to 24, every suit which is instituted or appeal preferred or application made,
after the prescribed period is to be dismissed by the court. This would be so,
even though limitation has not been set up as a defence.

It is also provided that for the purpose of this Act:

1. A suit is instituted

a) In an ordinary case, when the plaint is presented to the proper officer.

b) In the case of a pauper, when his application for leave to sue as a pauper is
made.

c) In the case of a claim, when the claimant first sends his claim to the
official liquidator.

2. Any claim by way of a set off or a counter-claim is to be treated as a

separate suit and is deemed to have instituted.

a) In the case of set off, on the same date as the suit in which the set off is
pleaded.

b) In the case of counter-claim, on the date on which the counter-claim is

made in court.

3. An application by notice of motion in a High Court is deemed to be made

when the application is presented to the proper officer of that court.

Suit when deemed to be instituted

A suit is taken as instituted on the date on which the plaint is

presented, and not when it is accepted. If the plaint is accompanied by
insufficient court-fees, and time is given by the court to makes good the
deficiency, the suit is still deemed to have been instituted in the date when the
plaint was first prescribed, and not on the date when the requisite court-fee were
paid. A similar rule applies when the plaint is ordered to be amended. So also
where leave to sue is required, the obtaining of the leave of the Judge later on,
and the admitted of the suit upon the Register of suits, do not in any way affect
the presentation of the plaint which presenting is all that the Act requires to be
done in order to stop limitation running.

Expiry of prescribed period when court is closed

 Section 4 of the Act provides that when the prescribed period of any
suit, appeal or application expires on a day when the court is closed, the suit,
appeal, or application may be instituted, preferred or made on the day when the
court re-opens. The sections provides for the contingency when the prescribed
period expires on a holiday. This section does not extend the period of
limitation. The only contingency contemplated by it is when the court is closed.
It may be noted that a court is deemed to be closed on any day within the
meaning of this section if during any part of its normal working hours it remains
closed on that day. The court here mans the proper court. Where a plaintiff has
filed his application in the wrong court, he is not entitled to the benefit of an
extension under this section if the proper court where he ought to have filed the
suit was, at that time, open.

5.2 Legal disability :-

Section 6 of the Act provides four simple rules in cases where the
person suing suffers from a legal disability, as under:

1. Where a person entitled to institute a suit or make an application for the

execution of a decree is, at the time from which the prescribed period is to be
reckoned, a minor or insane, or an idiot, he may institute the suit or make the
application within the prescribed period after the disability has ceased.

2. Where such person is affected by two such disabilities, or where, before

his disability has ceased, he is affected by another disability, he may institute
the suit or make the application within the prescribed period after both
disabilities have ceases.

3. Where the disability continues up to the death of that person, his legal
representative may institute the suit or make the application within the same
period after the death, as would otherwise have been allowed from the time so
specified.

4. Where a person under disability, dies after the disability ceases, but
within the period allowed to him under this section, his legal representative may
institute the suit or make the application within the remainder of the prescribed
period.

Disability of one of several persons

Section 7 of the Act provides that if one of several persons jointly

entitled to institute a suit or make an application for the execution of a decree is
under any such disability, and a discharge can be given without the concurrence
of such person, time will run against all of them. If no such discharge can be
given, time will not run as against any of them, until one of them becomes
capable of giving such discharge without the concurrence of the other or until
the disability has ceased. It is certified that the section applies a discharge from
every kind of liability, including a liability in respect of any immovable
property. It is also clarified that the manager of a Hindu Undivided family
governed by the Mitakshara law shall be deemed to be capable of giving
discharge without the concurrence of the members of the family only if he is in
management of the joint family property.

Special exceptions

Section 8 of the Act provides that followings are the special

exceptions

1. Do not apply to suit to enforce rights of pre-emption

2. Do not, in any case, extend the period of limitation for more than three
years from the cessation of the disability or the death of a person, as the
case may be.

Ex: A, to whom a right to sue for legacy has accrued during his minority, attains
majority eleven years after such accrue. A has, under the ordinary law, only one
year reaming within which to sue. But under section 6 and this section an
extension of two years will be given to him under section 6 read with this
section.

3. If the period of limitation prescribed for the suit or application is three

years or less, and it expires before the minor attains majority, the minor
will get the same period from the date of attaining majority. In such a
case there is no occasion for section 8 to apply.
4. If the period of limitation is more than three years, and it expires before
the minor attains majority, the minor will get only three years from the
date of attaining majority, under section 8 of the Act.
5. If the period of limitation is three years or less, and it expires at some date
after the minor attains majority, the minor will get the full period
prescribed for the suit from the date of attaining majority.
6. If the period of limitation prescribed for the suit is more than three years,
and it ordinarily expires within three years after the minor attains
majority, he will get 3 years from the date of majority.
7. If the period of limitation prescribed for the suit is more than three years,
and the period ordinarily expires on the date which is more than three
years from the date of attainment of majority, the minor will get the
remaining period, but no further extension of time will be allowed under
section 6 because in the ordinary course he is getting more than three
years.
Receives

5.3 Limitation Act

Object of the law of limitation

The object of the Act is quiet long possession and to extinguish stale
demands. The object of the Act is not create or define causes of action, but
simply to prescribe the period within which existing rights can be enforced in
courts of law. The principle of the Act is not be enable suits to be brought
within certain periods, but to forbid them being brought after certain periods.

The law of limitation and prescription are based upon the principle
that the law aids the diligent and not the indolent. A man who has negligently
slept over his rights for an undue length of time will not be allowed to litigate in
respect of them. A person who has been in the enjoyment of property, or of a
right, or of an immunity from a demand by another, for, a period of time which
the law has prescribed, will be allowed to enjoy that property, right or immunity
in peace and quiet even thereafter, and will not be harassed by unexpected
litigation cropping up at distant dates, or exposed to stale demands, perhaps
when witnesses of the facts are dead or the evidences of the title lost.

Limitation and Prescription

1. A law of limitation prescribes the time after which a suit or other

proceedings cannot be instituted in a court of law. A law of prescription
prescribes the time at the expiration of which some substantive right may be
acquired or may become extinguished. Prescription has, therefore, a twofold
aspect: as creating a right and extinguishing a right.

2. A law of limitation as merely barring the remedy merely; it does not

touch the right of a person to the debt, damage, goods, person, property, etc. but
in so far as it extinguishes the right of action, limitation is considered to be a
species of prescription.

3. A law of limitation, as merely barring the remedy, is a part of the

procedural or adjective law. A law of prescription, because it affects the
substantive right itself, is part of the substantive law.

A law of prescription lays down the period at the expiry of which a substantive
or primary right is, under certain circumstances, acquired or extinguished. The
term prescription as used in the Limitation Act, excludes, and is opposed to
limitation. A person right is extinguished by prescription when he cannot assert
it either judicially.
Bar of limitation

Section 3 of the Act provides that subject to the provision of section 4

to 24, every suit which is instituted or appeal preferred or application made,
after the prescribed period is to be dismissed by the court. This would be so,
even though limitation has not been set up as a defence.

It is also provided that for the purpose of this Act:

1. A suit is instituted

a) In an ordinary case, when the plaint is presented to the proper officer.

b) In the case of a pauper, when his application for leave to sue as a pauper is
made.

c) In the case of a claim, when the claimant first sends his claim to the
official liquidator.

2. Any claim by way of a set off or a counter-claim is to be treated as a

separate suit and is deemed to have instituted.

a) In the case of set off, on the same date as the suit in which the set off is
pleaded.

b) In the case of counter-claim, on the date on which the counter-claim is

made in court.

3. An application by notice of motion in a High Court is deemed to be made

when the application is presented to the proper officer of that court.

Suit when deemed to be instituted

A suit is taken as instituted on the date on which the plaint is

presented, and not when it is accepted. If the plaint is accompanied by
insufficient court-fees, and time is given by the court to makes good the
deficiency, the suit is still deemed to have been instituted in the date when the
plaint was first prescribed, and not on the date when the requisite court-fee were
paid. A similar rule applies when the plaint is ordered to be amended. So also
where leave to sue is required, the obtaining of the leave of the Judge later on,
and the admitted of the suit upon the Register of suits, do not in any way affect
the presentation of the plaint which presenting is all that the Act requires to be
done in order to stop limitation running.

Expiry of prescribed period when court is closed

 Section 4 of the Act provides that when the prescribed period of any
suit, appeal or application expires on a day when the court is closed, the suit,
appeal, or application may be instituted, preferred or made on the day when the
court re-opens. The sections provides for the contingency when the prescribed
period expires on a holiday. This section does not extend the period of
limitation. The only contingency contemplated by it is when the court is closed.
It may be noted that a court is deemed to be closed on any day within the
meaning of this section if during any part of its normal working hours it remains
closed on that day. The court here mans the proper court. Where a plaintiff has
filed his application in the wrong court, he is not entitled to the benefit of an
extension under this section if the proper court where he ought to have filed the
suit was, at that time, open.

Legal disability

Section 6 of the Act provides four simple rules in cases where the
person suing suffers from a legal disability, as under:

1. Where a person entitled to institute a suit or make an application for the

execution of a decree is, at the time from which the prescribed period is to be
reckoned, a minor or insane, or an idiot, he may institute the suit or make the
application within the prescribed period after the disability has ceased.

2. Where such person is affected by two such disabilities, or where, before

his disability has ceased, he is affected by another disability, he may institute
the suit or make the application within the prescribed period after both
disabilities have ceases.

3. Where the disability continues up to the death of that person, his legal
representative may institute the suit or make the application within the same
period after the death, as would otherwise have been allowed from the time so
specified.

4. Where a person under disability, dies after the disability ceases, but
within the period allowed to him under this section, his legal representative may
institute the suit or make the application within the remainder of the prescribed
period.

Disability of one of several persons

Section 7 of the Act provides that if one of several persons jointly

entitled to institute a suit or make an application for the execution of a decree is
under any such disability, and a discharge can be given without the concurrence
of such person, time will run against all of them. If no such discharge can be
given, time will not run as against any of them, until one of them becomes
capable of giving such discharge without the concurrence of the other or until
the disability has ceased. It is certified that the section applies a discharge from
every kind of liability, including a liability in respect of any immovable
property. It is also clarified that the manager of a Hindu Undivided family
governed by the Mitakshara law shall be deemed to be capable of giving
discharge without the concurrence of the members of the family only if he is in
management of the joint family property.

Special exceptions

Section 8 of the Act provides that followings are the special

exceptions

1. Do not apply to suit to enforce rights of pre-emption

2. Do not, in any case, extend the period of limitation for more than three
years from the cessation of the disability or the death of a person, as the
case may be.

Ex: A, to whom a right to sue for legacy has accrued during his minority, attains
majority eleven years after such accrue. A has, under the ordinary law, only one
year reaming within which to sue. But under section 6 and this section an
extension of two years will be given to him under section 6 read with this
section.

1. If the period of limitation prescribed for the suit or application is three

years or less, and it expires before the minor attains majority, the minor
will get the same period from the date of attaining majority. In such a
case there is no occasion for section 8 to apply.
2. If the period of limitation is more than three years, and it expires before
the minor attains majority, the minor will get only three years from the
date of attaining majority, under section 8 of the Act.
3. If the period of limitation is three years or less, and it expires at some date
after the minor attains majority, the minor will get the full period
prescribed for the suit from the date of attaining majority.
4. If the period of limitation prescribed for the suit is more than three years,
and it ordinarily expires within three years after the minor attains
majority, he will get 3 years from the date of majority.
5. If the period of limitation prescribed for the suit is more than three years,
and the period ordinarily expires on the date which is more than three
years from the date of attainment of majority, the minor will get the
remaining period, but no further extension of time will be allowed under
section 6 because in the ordinary course he is getting more than three
years.
Continuing running of time

Section 9 of the Act provides that once time has begun to run, no
subsequent disability, or inability to institute a suit or make an application stops
it. Where letters of administration to the estate of the deceased creditor have
been granted to his debtor, the riunning of the period of limitation for the
recovery of the debvt is suspended while the administration continues.

Disabnility or inability to sue

Disability or inability to sue includes disability to make an application

for execution as well. Disability is want of legal qualification to act; inability is
want of physical power to act. This disability is the state of being a minor,
insane or an idiot; whereas illness, poverty, etc., are instances of inability. The
rule as to the continuous running of time is one of the fundamental principles of
the law of limitation. This rule lays down that where once time has begun to
run, it runs continuously and without any breaks or interruptions until the entire
prescribed period has run out, and no disability or inability to sue occurring
subsequently to the commencement will stop its running. This fundamental
principle is embodied in section 9 of the Act, which applies to suits as well as
application, although the words used are inability to sue.

Suits against trustees and their representatives

Section 10 of the Act provides for suits against trustees and their
representatives. It lays down that irrespective of the above provisions of the Act,
no suit against a person in whom property has become vested in trust for any
specific purpose or against legal representative or assigns will be barred by any
length of time, where such suit is for the purpose of following in his or their
hands such property or proceeds thereof, or for an account of such property or
proceeds. It is also clarified that for the purposes of this section, any property
comprised in a Hindu, Muslim or Buddhist religious or charitable endowment is
to be deemed to be property vested in trust for a specific purpose and the
manager of the property shall be deemed to be the trustee thereof. When a trust
has been created expressly for some specific purposes or object, and property
has become vested in a trustee upon such trust, the person who is beneficially
interested in that trust may bring a suit against such trustee to enforce that trust
at any distance of time without being barred by the law of limitation. As a result
of this section, an apparently fraudulent trustee who has put trust money into his
own pocket cannot escape by reason of lap's of time.

Ingredients

1. There must be trust for specific purpose, i.e., express trust.

 2. The property must be vested in the trustee, or his legal representatives or
assigns.
3. The suit must be to follow trust property or for accounts, of such property
in the hands of trustee or his representative or assigns. Section 10
provides that a suit against an express trustee or his legal representative or
assign for the purpose of:

a) Following in his hands the trust property or the proceeds thereof

b) For an account of such property or proceeds, will not be barred by any

length of time.

Exclusion of time in legal proceedings

Section 12 of the provides that the following rules for excluding time
for computing certain periods of limitation

1. In computing the period of limitation for any suit, appeal or application,

the day from which such period is to be reckoned, shall be excluded.
2. In computing the period of limitation for an appeal or an application for
leave to appeal or for revision or for review of a judgment, the day on
which the judgment complained of was pronounced and the time requisite
for obtaining a copy of the decree, sentence or order appealed from or
sought to be revised or reviewed shall be excluded.
3. Where a decree or order is appealed from or sought to be revised or
reviewed, or where an application is made for leave to appeal from a
decree or order, the time requisite for obtaining a copy of the judgment in
which the decree or order is founded shall also be excluded.
4. In computing the period of limitation for an application to set aside an
award, the time requisite for obtaining a copy of the award shall be
excluded.

Exclusion of time

1. In computing the period of limitation prescribed for an appeal, the

following periods are to be excluded:

a) The day on which the period begins to run.

b) The day on which the judgment was pronounced

c) The time required for obtaining a copy of the decree, sentence or order

d) The time required for obtaining a copy of the judgment.

 2. In computing the period of limitation prescribed for a suit, the day on
which the time begins to run is to be excluded.
3. In computing the period of limitation prescribed for an application for
revision or review or leave to appeal, the following periods are to be
excluded:

a) The day on which period begins to run.

b) The day on which the judgment was pronounced.

c) The time for obtaining a copy of the decree

d) The time for obtaining a copy of the judgment.

4. In computing the period of limitation prescribed for an application to set

aside an award, the following periods are to be excluded:

a) The day on which the time beings to run.

b) The time for obtaining a copy of the award.

5. In computing the period of limitation prescribed for any other application,

only the day on which the time beings to run is to be excluded.

Exclusion of time in cases where leave to sue or appeal as a pauper is applied

Section 13 of the Act provides for exclusion of time in cases where

leave to sue or appeal as a pauper is applied for. In such a case, if the
application is rejected, in computing the period of limitation, the time during
which the applicant has been prosecuting in good faith his application is to be
excluded. In such cases, the court may, on the payment of the court-fees
prescribed for such suit or appeal, treat the suit or appeal as having the same
force and effect as if the court-fees had been paid in the first instance.

Effect of death on or before the accrual of the right to sue

Section 16 of the Act provides the followings:

1. Where a person who would, if he were living, have a right to institute a

suit or make an application, dies before the right accrues or where the right to
institute a suit or make an application accrues on the death of a person, then the
period of limitation is to be computed from the time when there is a legal
representative of the deceased capable of instituting such suit or making such
applications.
2. Where a person against whom, if he were living, a right to institute a suit
or make an application would have accrued dies before the right accurse, or
where a right to institute a suit or make an applicant against any person accrues
on the death of such person, the period of limitation is computed from the time
when there is a legal representative of the deceased from the time when the
plaintiff may institute such suit or make such application.

3. Applies to suits to enforce rights of pre-emption or to suits for the

possession of immovable property or of a hereditary office.

5.3 Acknowledgment :-

Acknowledgement means a definite, clear admission of exisiting

liability. It is not necessary that there should be a promise to pay; the simple
admission of a debts is sufficient. An acknowledgement does not create any
new right of action, but only enlarges the time and has the effect of making a
new period run form the date of the acknowledgment. An acknowledgement of
a barred debt cannot give fresh period of limitation in favour of creditors. An
acknowledgement is not limited in respect of a debts only, it may be in respect
of any property or right which is the subject-matter of the suit.

Ex: The taking of account of a dissolved partnership. An acknowledgement of a

conditioned liability will not give a fresh start so long as the condition remains
unfulfilled. There must be an unqualified admission, or an admission qualified
by a condition which is fulfilled.

Essentials of Acknowledgement

1. The acknowledgment must have been made before the expiration of the
period prescribed.
2. The acknowledgement must have been made by the party against whom
the right is then claimed or by any person through whom he derives his
title or liability.
3. The acknowledgement must be in writing; if the acknowledgement is
undated, oral evidence may be given of the time when it was signed.
4. Such acknowledgment
5. must have been signed by the party, his agent of the party against whom
the right is then claimed or by any person through whom he derives his
title or liability.
6. The acknowledgment must be an acknowledgment of liability. It is not
necessary that the acknowledgment must also contain or import a promise
to pay; a simple admission that debt is due, is quite sufficient under
which an acknowledgment to be effective must also contain or import a
promise to pay.
7. The acknowledgment is not require to be made to the creditor or the
person entitled to the right or the property; it must be made to any person,
even to one who has no connection with the creditor.