Substantive Question of Law

The Legislature has no defined the term "substantial question of law".

Existence of "substantial question of law" is a sine qua non for exercise jurisdiction under Section 100
CPC.

Nature and Scope

A HC can entertain a second appeal provided that it is satisfied that the case involves a substantial
question of law. The term "involves" a substantial question of law. The term "involves" suggests that
such a question must arise in the case and it is necessary to decide it. The mere fact that question is
raised by the appellant in the appeal is not enough and the HC is not justified in entertaining the appeal.
The term "involves" implies a considerable element of necessity.

Second Appeal (Section 100-103, Order 42)

Part VII (Section 96-112)

High Court have exclusive Jurisdiction to entertain 2nd Appeal.

Limitation on the valuation of Suit -2500/-

Limitation Period 90 Days from the date of decree appealed against Art 116 Limitation Act.

Section 100- Second Appeal

(1) Second Appeal should lie to HC from every decree passed in appeal by any subordinate court.
(Substantial question of Law)

(2)2nd Appeal should lie against appellate decree passed. Ex-parte.(Question -Law, Fact, Mixed question
Lawand Fact)

(3) Substantial question of Law is to be stated in the Memorandum of Appeal.

(4) Section 100 also states that if the HC is satisfied that the case involves a substantial question of Law.
Formulation of such a question.

(5) The 2nd Appeal shall be heard o such questions. Respondents may argue that the case does not
involve SQL.

Provisio- HC may after recording reasons hear the second appeal on any SQL (not formulated).

Section 100A- No further appeal in certain cases. (Bar)

inserted by the Amendment Act of 1976 further substituted by Amendment Act 2002& 200.

Where any appeal from an appellate decree or order is heard and decided by a single judge of HC.

No further appeal shall lie against the judgement or decree of such single judge.

Section 101- Second appeal on no other grounds.

It is a declaratory Section. No second appeal shall lie except on the ground mentioned in Section 100.
Section 102- No second appeal in certain cases- (Money related) (Recovery of Money)

No 2nd Appeal shall lie in any suit valuation does not exceed 25000/-. (Amended by Amendment Act of
2002)

Section 103- Power of HC to determine the issue of fact.

Exception to Section 100

Can issue of fact be determined in Second Appeal?

The issue of fact only be determined if there is sufficient evidence to dispose of appeal.

HC may determine the issue of fact if sufficient evidence and necessary for proper disposal of appeal.

- Court below failed to determine such issue of fact.

- Court below WRONGLY DETERMINED such issue.

Second Appeal before the Amendment Act of 1976.

Scope was wide due to which there was delay, confusion and problem.

- mixed question of law and fact

- irregularity of court

Shah Committee - to limit ambit of 2nd Appeal

- 54th Law Commision report HC have power if there is question of law of substantial in nature.

Chunilal V. Mehta & Sons Ltd v. Century Spg. &Mfg. Co Ltd, 1962

Question- What is SQL?

Held- Any question of public importance;

(b)(i) Any question of which directly and substantially affects the rights of the parties and not has been
decided by any court PC, FC,SC.

(ii) Any question which is not free from difficulties or allows alternative views. - CONFLICTING

(c) If the questions are well settled then it would not be SQL.

Raghunath Pratap Singh vs. Dep. Commissioner Pratapgarh, 1927 PC

-A question to be SQL must not necessary be of general importance.

- Any question of Law which directly affects the judgement is SQL between the parties.

SBI v. S.N. Goel 2008

- Any Question of law which affects the final decision in the case is a SQL.

Santosh Hazari v. Purushottam Tiwari 2001 SC

- Substantial means having substances, essence, real, sound worth.

-A point of law which admits no 2 opinions may be a proposition law but SQL.

SQL- Question of law- Debatable not previously settled, material bearing on the (decision of the case).

Order 42- Appeals from Appellate Decrees

Rule 1. Procedure - The rule of Order 41 shall apply on Oder 42.

Rule 2. Power of Court to direct that the appeal be heard on the question formulated by it.

Before dismissing a 2nd appeal summarily HC shall formulate a SQL.

Appeal will be heard on SQL.

No other ground will be entertained.

Rule 3. Rule 14(4) of Order 41 sustainable Adjustments.

ILLUSTRATIONS – SQL

- A question of law in which there is a conflict of judicial opinion,

- Recording of a finding without any evidence on record.
- Disregard or non-consideration of relevant or admissible evidence,
- Taking into consideration, irrelevant or in admissible evidence,
- Misconstruction of evidence or documents,
- Interpretation or constructions of material documents,
- A question of admissibility of evidence,
- Placing onus of proof on a wrong party.

ILLUSTRATIONS – NOT SQL

- Concurrent findings of fact recorded by court below

- Finding of fact recorded by the first appellate court
- Where two views are possible
- When new case is sought to be made out in second appeal,
- Where the question raised is too general,
- Whether the question is finally concluded by the SC, PC, FC.
- The High Court feels that the reasoning of the first Appellate court is not proper.

Execution in Decree (Order 21) Total 106 rules

Important rules of Order 21

Rule 1. Modes of paying money under decree.

Rule 2. Payment out of Court to decree- holder.

Rule 18. Execution in case pf cross decrees.

2 people filed a suit against each other. One decree is favor one and other is on another the n only
balance will be completed.
Rule 19. Execution in case of cross claims under same decree.

Rule 21. Simultaneous execution- The court may in its discretion, refuse execution at the same time
against the person and property of the judgment holder.

Rule 30. Decree for payment of money

Rule 31. Decree for specific movable property.

Rule 32. Decree for specific performance for restitution of conjugal rights, or for an injunction.

Rule 46A- 46H. Provisions regarding Garnishee

Rule 53. Attachment of decrees.

Rule 64. Power to order property attached to be sold and proceeds to be paid to person entitled.

Rule 65. Sales by whom conducted and how made.

Rule 68. Time of sale.

Rule 72. Decree-holder not to bid for or buy property without permission. Where decree-holder
purchases, amount of decree may be taken as payment.

Rule 84. Deposit by purchaser and re-sale on default.

Rule 85. Time for payment in full of purchase money.

Rule 89. Application to set aside sale on deposit.

Rule 94. Certificate to purchaser.

Rule 105. Hearing of application. - Either party absent if applicant is absent then application dismissed. If
person whose against application was done that person is absent on the day of hearing it will be ex-
parte order.

Rule 106. Setting aside orders passed ex-parte etc.- within 30 days.

Section 36 to 74 of CPC deals with the substantive law in respect of execution of decree or order. And its
procedural law is provided in Order 21 of CPC.

When a person obtains a decree from a court of law against another person, his next step is to get the
decree satisfied. The proceeding by which he moves the court for satisfaction of decree is called
execution proceedings. Execution is the medium by which a decree holder constrains the judgmet-
debtor to do the command of the decree or order as the case may be.

Execution- It is the process of the court by which decree or orders are enforced.

The term execution is not defined in CPC. The term execution means implementing or enforcing or
giving effect to carry out the mandate of the decree or order and enable the decree- holder to recover
the thing granted to him by the judgment.
Section 36 provides that the provisions relating to the execution of decree can also be applicable in
execution of orders. And this section also states that the provisions relating to the execution of a decree
or order include payment under a decree or order as well.

APPLICATIONS FOR EXECUTION : Rule 10-23 of Order 21 deals with applications for execution.

The following person is authorized to apply for execution

1) Decree-holder (as defined u/s 2(3) of CPC.)

2) Legal representative of decree holder. (Legal representative is defined u/s 2(11) of CPC) decree
holder. (Legal
3) In the case of a jointly passed decree any of them. (see Order 21, Rule 15)
4) Transferee of a Decree. (See Section 49 of CPC & Order 21, Rule 16)
According to Order XXI Rule 10, an application has to be filed in the Court by the decree-holder if he
desires to execute it. If a party is not approaching the court, then the court has no obligation to
implement it suo motu. The decree-holder can apply for execution of a decree, before any of the
following –
1. The court passing the decree, or

2. The authority appointed in this behalf (if any), or

3. If the decree is sent to any other court, the application can be made before that court or its
proper officer.

The application for execution can be made against the following persons:

1) Judgement debtor (as defined u/s 2(10) of CPC.

2) Legal representative of Judgement debtor. (Legal representative is defined u/s 2(11)
of CPC)

Notice for Execution – Generally there is no provision that any notice should be given to the party
against whom the application for execution is made. But, the notice has to be given:-

Where the application for execution has been made-

1. After 2 years from the date of decree [Order 21, Rule 22 (1)]; or
2. Against the legal representative of the deceased (Judgement debtor); or
3. In relation to a decree passed by the court of the United Kingdom or any other
reciprocating territory; or
4. Where the decree pertains to the payment of money and the execution pertains to
personal proceedings against the Judgment debtor; or
5. Where the interest or decree holder has been transferred.

Execution of Decree

- No Statutory definition.

Generally enforcement and implementation of decree.

Substantive Provisons -Section 36-74.

Procedural Provisions -Order 21 106 rules

Purpose- decree holder gets fruits of decree

-Collateral Proceeding ( limirtations)

Delay in execution of decree- Rahul Shah vs. Jitendra Gandhi 2021 ASAP excution should take place

Part II of CPC

Section 36, 37- General

Section 36-46 Courts by which decree maybe executed.

Section 47- Questions to be determined by Court.

Section 48- Execution barred in certain case no repealed the Limitation Act, 1936

Section 49- Transferee and Leal representive defined is Section 2(3)

Section 51-54 Procedure in execution

Section 55-59- Arrest and detention

Section 60-64- Attachement

Section 65-67- Sale

Section 73- Distribution of Assets

Section 74- Resistance of Execution

Application for Execution

Who may Apply

Decree holder, Legal Representative, Transferee of Decree- holder and 3rd party has no right.

Against whom

Judgement debtor, LR of Judgement debtor

Form of Execution

Application of Execution- Form no. 6 (Appendix E)- 1st Schedule given in Rule 10

Filing of Application- Writing, Duly Signed, +Verified- given in Rule 11

Court shall ensure

- Application should fulfill requirement of rule 11-14

- Defective (court gave time) if not remedied then Reject

Rules 105 and 106 have been added by Amendment Act 1976
-Applicant not present (Dismiss), Opposite Party not present (EX-parte)

Restoration of Application in case of dismissal

Recall Application in case of Exparte under rule 106

NOTICE required

Decree holder filed an application for execution after 2 years.

Application for execution against LR

Made by a LR of deceased person.

Payment of money

U.K or reciprocating territory.

Execution of decree can be claimed Within 12 years apply for execution.

Res Judicata is applicable to execution of decree dealt under Explanation 7 of Section 11.

Section 37 Court which passed a decree.

- Of 1st instance
- When 1st instance court does not have jurisdiction or ceased to exit in this case any court passed
decree at the time of passing of decree and also had jurisdiction it will be court of passing
execution of decree.

Section 38 Courts which passed the decree, or by the Court to which it is sent for execution.

Section 39- Transfer of Decree

-on application pf decree-holder or suo moto on grounds on page number 653. CK Takwani.

Section 40- Transfer of Decree in another State.

Section 41- Result of execution proceeding to be certified.

Section 42- Power of court in transferred decree. (mostly same)

Section 43- Execution of decrees passed by courts to which CPC does not apply.

Section 44- Execution of decrees by Revenue court to which CPC does not apply. (Buy SG notification in
official Gazette in allover State if passed by Courts in that State.)

Section 44A- Execution of decrees passed by courts passed by courts in Reciprocating Territory.

Section 45- Execution of decrees outside India.

Section 47- Questions to be determined by the Court executing decree.

Court shall determine execution, discharge, satisfaction of decree. But cannot go beyond the decree.
Executing Court may Attach property, arrest of detein, transfer, orderr as to police help. As per section
42.

Executing Decree cannot rectify or modify the decree, Cannot question the validity of the decree, cannot
pass an order that decree is defensive, cannot decide whether decree is obtained by (a) fraud, (b) not
obtained by sufficient material facts.

Section 46- Precepts

Command of court, judicial direction or order of the court to attach the property of judgement order
asked by decree holder by formal application. Such command by court to another court this is precepts
validity of 2 months unless not increased.

Garnishee Order

The debtor of Judgement debtor is Garnishee. Garnishee order is the judicial order which directs
garnishee to give money to decree holder instead of Judgement debtor. This is discretionary power to
the Court.

Garnishee has to obey the law.

Rule 46A- NOTICE to Garnishee is mandatory if not followed it is void. - Surinder Nath v. UOI, 1988 SC

Garnishee order can be given on any debt except mortgage or charge.

Section 49- Transferee

Every transferee of a decree shall hold the same subject to the equities which the judgement debtor
might have enforced against the original decree-holder.

Section 51- Mode of Execution (pg no. 673) Power of Court to enforce execution

Section 51(a) -Delivery of Property read with Order 21 Rule 31

Movable property

51(b) attachment and Sale

51(c)- Arrest and Detention

Payment of money- opportunity to show cause

Jolly George Varghese v. Bank of Cochin 51(c) read with 58

Guidelines regarding arrest and detention as a mode of execution.

51(d)- Appointment of Receiver- discretion of Court; equitable execution

51(e) Any other manner- Partition specific performance of court; restitution of conjugal rights

JD obstructing or delaying the execution

a. Like to abscond or have the local limits

b. Transferred, concealed or removal part of his property
JD has means to pay the amount of decree willfully neglecting

Decree is for sum (JD was bound in fiduciary capacity)

Section 58- Detention and release

Money related matter of recoverable amount more than 5000/- then detention is not exceeding three
months.

Between 2000/- 5000/- then detention is not exceeding 6 weeks.

Order 32- Suit by or against Minors, unsound mind

Minor- ICA,1872 Section 10,11 only major person can enter into contract.

Acc. To Section 3 of the Indian Majority Act minor is who not attained age of 18 years.

Or, where next friend is appointed by court, courts of wards has superintendence of property; in this
case age of majority will be 21 years.

Object of Order 32.

- Protect the interest of minor

- Proper representation in suits on tis point next friend is appointed and guardian too
- PNJ, equity and concise.
- Interest of the Infant paramount consideration.

Law regards all acts done by either major or minor are on equal footing only then when there ia
appointment of guardian. The court will appoint a guardian.

All acts which are for benefit of infant

Ram Chandra vs. Man Singh, 1968- Guardian appointment is a necessity.

Rule 2. where suit is instituted without next friend, plaint to be taken off the file.

Suit by minor institute by plaint in his name through the guardian and next friend, their appointment is
mandatory if not fulfilled then plaint will be cancelled.

Defendant should apply for the striking off of the plaint. And NOTICE to be given to the person who
presented the plaint in case of cancellation.

Rule 2A. Security to be furnished by next friend when so ordered.

Court may at any stage of suit either on application of defendant or suo moto that plaintiff have to
furnish security for costs for defendants.

Rule 3. Gurdian to the suit to be appointed by Court for minor defendant

Guardian ad litem- Person appointed by court on behalf of the minor.

Appointed on application + affidavit: where in mentioned no adverse interest and he is fit for guardian.

He is appointed to defend if suit is instituted against minor person.

Court will give notice who court feels necessary.

Continue to Act in every proceeding against the minor whether appeal, revision, execution, etc. Unless
terminated by retirement, removal, death of guardian.

Rule 4. who may act as a next friend or be appointed guardian for the suit.

Sound mind + major person for minor’s welfare.

- Interest must not be adverse of minor

- Consent to act in writing
- Absence- court will appoint any of its officers to act as guardian.

Rule 5. Representation of minor by next friend or guardian for the suit

(1) Every application to the court on behalf of a minor, other than an application, under rule 10,
sub-rule (2), shall be made by his next friend or by his guardian for the suit.