3/3 - V Semester

Paper - I

Civil Procedure Code (CPC)

RES JUDICATA

MEANING: When a matter - whether on a question of fact or a question of law - has been
decided between two parties in one suit or proceeding by the competent Court, and the
decision is final, either because no appeal was taken to a higher Court or because the
appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or
proceeding between the same parties to . canvass the matter again.

OBJECT: The Doctrine.of Res judicata is based on the following maxims:—

 1."Nemo debet lis vexari pro una of eaden causa." (No man should be vexed twice over
for the same cause.)
2."Interest republicae ut sit finis Ilium." (It is in the interest of the State that there
should be an end to a litigation.)
3."Res judicata pro voritate occipitur." (A judicial decision must be accepted as
correct.)
4."Ex captio res judicata." (One suit and one decision is enough for any single
dispute.)
5."Actus curiae neminem gravabit." (The act of the Cowl does cause harm to no
one.)

EXAMPLE: A sued B for the partition of some ancestral property. The suit was dismissed.
A did not
file an appeal before the Appellate Court. Now A wants to file another suit against B on
the same

property. A is precluded to file another suit on the same property against the same
person. SCOPE: Section 11 of the Code of Civil Procedure, 1908 explains about the
"res judicata".

Sec. 11. Res judIcata.— No Court shall try any suit or issue in which the matter
directly and substantially in issue has been directly and substantially in issue in a
former suit between the same parties, or between parties under whom they or any of
them claim, litigating under the same title, in a Court competent to try such
subsequent suit or the suit in which such issue has been subsequently raised, • and
has been heard finally decided by such Court.

Explanation-I: The expression "former sult" shall denote a suit which has been
decided prior to the suit in question whether or not it was Instituted prior thereto.

Explanation-II: For the purposes of this section, the competence of a Court shall be
determined irrespective of any provisions as to a right of appeal from the decision of
such Court.

Explanation-Ill: The matter above referred to must in the former suit have been
alleged by one party and either denied or admitted, expressly or Impliedly, by the
other.

ExplanatIonW: Any matter which might and ought to have been made ground of
defence or attack in sucti former suit be deemed to have been a matter and
substantially in issue in such suit.

Explanation-V: Any relief claimed in the plaint, which is not expressly granted by
the decree, shall, for the purpose of this section, be deemed to have been refused.

Explanation-VI: Where persons litigate bona lido In respect of a public right or of a

private right claimed in common for themselves and others, all person interested in
 such right shall, for the purposes of this section, be deemed to claim the persons so
litigating.

Explanation-WI: The provisions of this section shall apply to a proceeding for the
execution of a decree and references in this section to any suit, Issue or former suit
shall be constructed as references, respectively, to a proceeding for the execution of
the decree, question arising in such proceeding and a former proceeding for the
execution of that decree.

Explanation-VIM An issue heard and finally decided by a Court of limited jurisdiction,

competent to decide
such issue, shall operate as res judieata in subsequent suit, notwithstanding that
such Court of limited
jurisdiction was not competent to try such subsequent suit or the suit in which such issue
has las been subsequently

raised.

CONDITIONS FOR RES JUDICATA

1. The matter must be directly and substantially is issued in two suits.

2. The prior suit should be between the same parties or persons claiming under them.

3. Parties should have litigated under the same title.

4. The Court which determined the earlier must be competent to try the later suit.
5. The question directly and substantially in issue in the later suit.

IMPORTANT POINTS ON "RES JUDICATA":

A Principles of res judicata are also applicable to writ proceeding.

B. Section-11 is not strictly applicable to consent or compromise decrees

as it applies in terms only to what has been heard and finally decided by
Court. A compromise decree entered into by a limited owner in her personal
capacity will not bind the reversioner. A compromise decree cannot be taken
to decide every point that ought to have been pleaded. Examples: (a) A rent
decree passed in a previous suit on the basis of a compromise does not
operate as res judicata in a subsequent suit on the subject of rate of rent.
 (b) A deed of compromise entered into a Revenue Court does not operated
as

a res judicata in the Civil Court.

C.The aim and object of the law is to minimise litigation, to see that Courts of
co-equivalent junsdiction avoid conflicting decisions, that precious time of the
Court is not wasted in trying the same cause of action between the same
parties again and again and finally to enable the successful party to enjoy the
fruits of the decree passed in his favour.
D.Competent Court: The principle of res judicata applies only when the
Court which decision is cited as resjudicata is competent to try the second case.
The expression "competent to try" means 'competent to try the subsequent suit of
brought at the time first suit was brought".
E.Res judicata between co-defendants; To constitute res judicata between
defendants, it is necessary there should be (1) conflict of interest between the co-
deferydants; (2) adjudication, should be necessary to give appropriate relief to
plaintiff; (3) The question must have been finally decided between the defendants.

I. CONSTRUCTIVE RES JUDICATA

SCOPE: Explanation-IV of Section 11 of the C.P.C. lays down the Rule of 'Constructive Res
judicata'.

Explanation-IV: Any matter which might and ought to have been made
ground of defence of attack in such former suit shall be deemed to have
been a matter directly and substantially in issue In such suit.

For the application of the principle of res judicata, the matter directly in issue in the
subsequent suit must be the same matter which was directly and substantially in issue
in the former suit. Explanation-IV lays down that any matter which might and ought to
have been made ground of attack or defence in the former suit shall be deemed to have
been a matter directly or substantially in issue in such suit. The Rule of
Constructive Res judicata cautions a party that cannot raise the same matter in
issue in a subsequent suit. Therefore, if a matter which might and ought to have been
raised by the plaintiff in the former suit, is not raised by him, then, he would be
estopped from raising the same question in a subsequent suit between the same parties.
Similarly, when the defendant fails to raise all the objections which he might and ought to
have raised in the former litigation in controverting the plaintiff's claim, he will be barred
from raising them in subsequent suit between the same parties if the other conditions of
Res judicata exist.

EXAMPLES:

(a) If A sues B to recover certain property belonging to the estate of C, alleging that his
father has been adopted by C's father, B, to whom the property descended on C's
death. The suit is dismissed on the ground that adoption is not proved. A then again
sues 13 to recover the same property claiming it as C's bandhu. The latter suit is barred
 by the Rule of Constructive Res judicata because A ought to have claimed property
in the former suit, in the alternative as C's bandhu.
(b) A files a suit against B to recover money on a pronble B contends that the
promissory note was obtained from him by undue influence. The objection is overruled
and suit is decreed. B cannot challenge the promissory note, on the ground of coercion or
fraud in subsequent suit, in as much as he ought to have taken that defence in the
former suit. This is Constructive Res judicata.

WRITS: The Rule of Constructive Res judicata applies to . writ proceedings, but in
the case of habeas corpus petitions it is not applicable.

EXECUTION PROCEEDINGS: The Rule of Constructive Rez judicata applies to

execution proceedings.

PLAINT

MEANING:

Plaint = an accusation; a charge.

The word "plaint" in legal phraseology comes to acquire a more limited meaning and it is a statement in
writing of the cause of action in a suit. A plaint is a document by the presentation of which in a Civil Court a suit
is instituted.

OBJECT: The object of the plaint is to state grounds upon which the assistance of the Court is sought by the
plaintiff. (The objects given in "Pleadings generally" are also applicable in case of "Plaint". The student is
advised to refer the objects of "Pleadings generally".)

SCOPE: Order-7 deals with "Plaint". Order-7 contains 18 rules.

IMPORTANT POINTS:

I. What particulars should a plaint contain? Rule-1 of Order-7 explains about the particulars to

be contained in a plaint,-

1. Particulars to be contained in plaint: The plaint shall contain the following particulars:

a. the name of the Court in which the suit is brought;

b.the name, description and place of residence of the plaintiff;
 c. the name, description and place of residence of the defence of the defendant, so far as they can be ascertained;
d.where the plaintiff or the defendant is a minor or a person of unsound mind, 6statement to that effect;
e.the facts constituting the cause of action and when it arose;
f. the facts showing that the Court has jurisdiction;
g.the relief which the plaintiff claims;
h.wheretheplaintiffhasallowedaset-offorrelinquishedaportionofhisclaim,theamountso allowedorrelinquished;and
it astatementofthevalueofthesubject-matterofthesuit for thepurposesofjurisdictionand of court-fees, so far as the case
admits.

BETWEEN:

THE COURT OF THE DISTRICT MUNSIFF MAGISTRATE, AT .....................

B. Specimen of cause title: It is the head of the plaint.

sub-

clauses (a) to (d) of Rule-1 as above stated.

A. Cause Title: 'Cause title' is the head of the plaint. It contains the particulars
narrated in sub-IMPORTANT POINTS ON RULE-1:

O.P. No. ................................/200 .

S/o............

Aged: (years),
Occupation:

R/o. ........

...Plaintiff

Versus

5/0........................................

Aged:..................(years)• Occupation:

R/o. ........................................

...Defendant

PETI TI O N SUBM I TTED UNDER SECTI O N ............ OF C.P.C.

 C. If there are more plaintiffs or defendants, all their names with their father's
names, ages, occupations and residential addresses shall be given one by one in
the cause title itself. It is the registered address.
D. Place of residence must be clearly given. It is a registered address, for all purposes,
i.e. serving summons, etc.

E. Cause of action: The plaint should contain in addition to other particulars the facts
constituting the cause of action and the time when it arose. It is the body of the plaint.
Cause of action shall be explained in concise in paragraphs. The plaint should contain
material facts only. Plaint should state the facts and not law. It should not state the
evidence.
F. An admission must be made pertaining to the jurisdiction of the Court.
G. The plaintiff has to state that the suit is filed within the period of limitation. The
plaintiff must state the grounds for the examination from the limitation.
H. Court fee must be paid. The particulars of payment of Court-fee should also be
mentioned.
I. Reliefs: In the last para, the plaintiff prays the Court to grant certain reliefs. The
plaintiff must be
cautious in submitting his'reliefs. The Court should not give the plaintiff more relief than
he prays for. The relief should not vary with the cause of action. Para of the relief is the
last para of the plaint.
J. After the last para, beneath it the plaintiff shall sign with place and date.
K. Verification: After the signature, the verification para must be embodied. (Specimen
of verification) is given in pleadings.)
L. Order-IV provides about the institution of suits. It contains only 2 rules. First Rule
provides that the suit shall be commenced by plaint. Second Rule provides that it shall
be registered by the Court.
M. After due completion of the procedure, the plaint shall be registered in the
Court Register.

PROCEDURE: Rule-9 deals with the procedure on admitting plaint. The plaintiff
should enclose the documents along with the plaint. He should slate on a
separate sheet which documents he submitted to the Court in a serial wise and
date-wise. The plaintiff shall submit to the Court the original plaint and also the

1
copies of the plaint The plaintiff must submit his suit within the time prescribed.
The Court on receipt o; the original plaint with documents and also the copies of
the plaint shc - iil give a serial number. The chief ministerial officer of the Court
shall sign such list and copies or statements if, on examination, he finds tliem to
be correct. The Court satisfies wHi all the requisities if, on examination, he finds
thetas to be con ect. The Court satisfies with all the requisites then it gives the
serial number and order for the service of copies of plaint and summons to t ie
k defendant/s.
a

RETURN OF PLAINT
 Rule-10, Rule-10-A and 10-B provide that the Court has the power to return of plaint in
certain circumstances. Rule-10 says that the plaint shall at any stage of the suit be
returned to be presented to the Court in which the suit should have been instituted. On
returning a plaint the judge shall endorse ' thereon the date of its presentation and return,
the name of the party presenting it, and a brief statement of the reasons for returning it. The
Court can return the plaint on the grounds that it has no jurisdiction, either territorial or
pecuniary or with regard to the subject matter of the suit.

EXAMPLE: Where a suit filed in a Revenue Court is not triable by that Court, the Court
should not dismiss the suit, but return the plaint to be presented to the proper Court.

The High Court of Andhra Pradesh in the case Maqbool Ahmed vs. Pear Muhammad
(1956) held that the plaint must be•returned or allow to be amended by omitting the claim
which falls outside the jurisdiction of the Court ;

On return of the plaint, the suit should be deemed to be instituted when the plaint is
presented in the proper Court. The date of representation is the date of institution for the
purpose of limitation. The Plaintiff will be entitled to the benefit of the Court-fee already paid if the
same plaint is represented, but not if it is substantially altered.

Rule 10-A provides that the Court has the power to fix a date of appearance in the Court, where
a plaint is to be filed after its return.

Rule 10-B provides that the Appellate Court has the power to transfer suit to the proper
Court. REJECTION OF PLAINT

IMPORTANT POINTS ON RULE-11 (Rejection of plaintiff):

A. If a plaint does not disclose a cause of action the only legal order then can be passed in the
circumstances of the case is one rejection of plaint and not of dismissal.
B. The provisions of the Rule-11 are mandatory.
C. A plaint can be rejected at any stage of the suit even after its registration.
D. A plaint not correctly valued and stamped can be rejected.
E. The Court an exercise its power to reject the plaint sue mote.
F. The whole plaint can only be rejected, but a part of the plaint cannot be rejected.
G. Where the relief claimed is undervalued, the Court shall reject the plaint.
H. Where the suit is barred by limitation, it can be rejected.
I. Where the plaintiff does not follow other rules to the law, the plaint can be rejected.
Example: A suit against Government can be filed only after issuing of a notice to it under
Section 83. If the plaintiff failes to give such notice, and does not mention about it, or does
not plead to condone Section 80 for urgent relief, the plaint can be rejected.

PROCEDURE ON REJECTION

Rule-12 provides the procedure on rejecting plaint. Where a plaint is rejected, the Judge shall
record an order to that effect with the reasons for such order.
 Rule-13 provides that after the rejection of the plaint on any of the grounds mentioned in it, the
plaintiff is not precluded from bringing a fresh suit on the same cause of action. The plaintiff is
entitled to bring a fresh suit, after correction of the grounds on which it is rejected. An order
rejecting a plaint is a

"decree" within the meaning of Section 2 (2) of C.P.C. and it is appealable.

WRITTEN STATEMENT

MEANING: A plaintiff files his plaint before the competent Court. A plaintiff alleges
against the defendant for recovery of certain amount or property or a right, etc.
The defendant has to answer It. The answer of the defendant to the plaint is
called "Written Statement".

OBJECT: • "Audi alteram partem." "No man should be condemned

unheard" Is the principle of natural justice. Both the sides must be heard before
passing any order or decree. This is the principle lying in the submission of
written statement.

SCOPE: Rules 1 to 5 and 7 to 10 of Order-8 deal

with written statement.
PARTICULARS OF
WRITTEN
STATEMENT

All the general rules of pleadings explained in the Order-6 "Pleadings Generally"
apply to a written statement also. Before submitting his written statement, the
defendant must go through the plaint in detail, and prepare his written statement
very strongly. The plaintiff has right to produce the evidences - oral and
documentary before the Court. Similarly the defendant also has right to produce
the evidences - the oral and documentary evidence before the Court. The written
statement does not require any court-fee.

Rules of Defence: Rule-1 of the Order-8 provides that the defendant shall, at or
before the first hearing within such time as the Court may permit present a written
statement of his defence.

New facts must be specially pleaded: Rule-2 provides that the defendant must raise by
his pleadings all matters which show the suit not to be maintainable, or that the transaction
is either void or voidable in point of law, and all such grounds of defence as, if not raised,
 would be likely to take the opposite party by surprise, or would raise issues of facts not
arising out of the plaint, as for instance fraud, limitation, release, payment, performance, or
facts showing illegality.

IMPORTNAT POINTS ON RULE Rule-2:

A. Defence should be specific and clear and not evasive.

B. Limitation should specifically be pleaded.
C. Contributory negligence and equitable estoppel have to be specifically pleaded.
D. A plea of res judicata can also be pleaded.

Denial to be specific: Rule-3 provides that the defendant must deal specifically with each
allegation of fact of which he d\ops not admit the truth, except damages. The defendant should not
deny generally the grounds alleged by the plaintiff.

IMPORTANT POINTS ON RULE-3:

A The defendant must take each fact which is alleged against him separately, and say that
the admits, it, or denies it, or does not admit it.

B. The Government is defendant in a case. It denied the receipt of a Notice under Section 80.
The plaintiff proves that he had given the notice.

C The defendant paid sortie amount towards the debt, i.e. part payment undertec: 19 of the
Limitation Act. The defendant did not mention about it in his written statement, even though
the plaintiff has mentioned about part payment in his plaint. It amounts that the defendant has
admitted the allegation

of part-payment.

Evasive Denial: Rule-4 provides that where a defendant denies an allegation of fact in the
plaint, he must not do so evasively, but answer the point of substance.

Important points on Rule-4:

A. The principle of Rule-4 is that the pleadings should be specific, but not evasive.
B. The specific allegation of the plaintiff is that the defendant took a bribe Rs. 1,000 from him on
10-5- 1999, at defendant's office. If the defendant answers: "Thedefendant did not lake a
bribe Rs. 1,000 from the plaintiff on 10-5-1999 at his office."Iii is evasive denial. It gives the
meaning that the defendant might have taken bribe Rs. 1,000 or more from the plaintiff on
another date at another place. The correct answer of the defendant must be like this: "The
defendant never took Rs. 1,000 or any um from the plaintiff on 10-5-1999 or on any
caber date, nor at his office nor al any other place."
 O FF I CE RS I N T H E I R O F F I C I A L C A P A C I T Y ‘ 4 % t ) .

SUITS BY OR AGAINST THE GOVERNMENT OR PUBLIC last,

Specific Denial: Rule-5 provides that every allegation of fact in the plaint, if hot denied specifically or

by necessary implication or stated to be not admitted in the pleading of the Jefndant, shall be taken to

be admitted except as against a person under disability.

Important points on Rule-5:

A The defendant Must deny the allegations specifically.

B.A mere omission tto file a written statement will not amount to an admission of the facts stated in
the plaint.

C.It is not sufficient that defendant denies all allegations not expressly admitted.
D.Rule-5 means specific denial.
E.Where there is no denial in written statement of a material fact, that should be taken to have been
admitted.

F. The Court must exercise its discretion when it suspects an admission made collusively or to

avoid a rule of public policy.

Separate Grounds: Rule-7 provides that the defendant can rely upon several distinct grounds of

defence or set-off or counter claim founded upon separate and distinct facts, they shall be stated as

far as separately and distinctly.

New Grounds: Rule-8 provides that any ground of defence which has /been arisen after the institution

of the suit or the presentation of a written statement to the Court within the fixed time and a copy to the

plaintiff. The plaintiff may give 'Rejoinder' to that written statement.

Procedure when party fails to present written statement: Rule-10 provides that if the defendant

fails to submit his written statement within the fixed time before the Court, the Court shall pronounce
 judgment against him, or make such order as it thinks fit.
-1=7=

REJOINDER:
Meaning: Rejoinder = a retort; a reply; a reply by rejoining.

T he d ef end ant sub mi t s t he wr i t te n st at eme nt to t he C our t wi t hi n t he f i xe d ti me and a co p y t o t he

plaintiff. The plaintiff may give "Rejoinder" to that written statement, i.e. a reply to that written statement.

On receipt of rejoinder from the plaintiff, the defendant is also entitled to give his rejoinder on those

specific points.

OFFICERS IN THEIR OFFICIAL CAPACITY

SUITS BY OR AGAINST THE GOVERNMENT OR PUBLIC last

SCOPE: Sections 79 to 82 of the C.P.C. explain about the suits by or against

the Government or
Public Officers in their official capacity. Order 27 of the Code explains about the
procedure of proceedings
by or against the Government or public officers in their official capacity. There are 8
Rules in the Order-

27.

I. Title: Suits by or against Government: Section 79 provides in a

or against the

Government, the authority to be named as plaintiff or defendant, as the case may

be, shall be,--

( a ) i n t h e c a se o f a s ui t b y , o r a g a i ns t t h e C e n t r a l G o v e r n me nt , t he Un i o n
of I nd i a,
( b ) i n t h e c a s e o f a s u i t b y o r a g a i n s t t h e S t a t e G o v e r n m e n t . t h e S t a t e.

II . Not i ce: Secti on 80 ena ct s t ha t no suit sha ll b e inst it ut e d a g a inst t he

Go v er nment or a g a inst 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.
 (a ) The Centra l Gov ernment exce pt w her e it re lat es to a railway , a
Secretary to t he Go ver nment.
(b ) In the case of a suit against the Central Government where relates
to a railway, the General Manager of that railway.
(c) In t he c a s e o f a su it a g a in st a ny o t h e r S t a t e G o v e r n me nt , a
,e c r e t a r y t o t ha t Go v er nm e n t o r the Collector of that District; or
in the case of public officer, delivered to him or left at his
o f f ic e , s t a t i n g t h e c a u s e o f a c t i o n , t h e n a m e , d e s c r i p t i o n a n d
p l a c e o f r e s i d e n c e o f t h e p la intiff and t he relie f which he
cla ims; a nd the p la int sha ll co nt ain a sta te me nt t hat such notice
has been so delivered or left.

OBJECT OF SECTION 80: The object of Section 80 is the advancement of

j u s t i c e a n d t h e s e c u r i n g o f public goo d by avoida nc e of unne ce ssar y
litiga tio n. T. its sec tion is ma nd at ory . Two mont hs' time is a sufficient time.
Within this time, the Government or p Jblic officer concerned may settle the
claim if p o s s i b l e . S e c t i o n i s e x p r e s s , e x p l i c i t a n d m a n d a t o r y a r d i t a d m i t s
no implications or exceptions.

IMPORTANT POINTS ON SECTION 80:

A Where the cause of action has not arisen at the time of the notice, the
notice is invalid.

B.Where a person who has given notice dies , his successor should give fresh
notice.
C . In computing the period of limitation for instituting the suit , the period
of notice under this section m u s t b e e x c l u d e d .
D . N o n o t ic e i s n ec es sa r y in r e sp ec t o f a n a c t fo ll o w in g f r o m a n i ll e g a l a c t o f a
p u b l ic o f fic er .
E . No notice unclad this section is necessary , if a suit is filed as per direction
while disposing of a writ petition.
F.Urgent or Immediate Relief: Sub-section (2) of Section 80 provides
that where an urgent or immediate relief is required by an applicant, he
may approach the Court and convince the Court about

his urgency. The Court may admit such case if it is convinced. But the
C o u r t s h o u l d n o t g i v e a n y r e l i e f t o t he ap p lic a nt in t he suit , unt il t he
Go v er nment or p ub lic o fficer a rea so na b le o p po r t unit y o f sho w ing c a u se i n
r e s p ec t o f t h e r e li ef p r a y ed fo r in t he su it . If t h e Co ur t i s n o t sa t is fi e d
a ft er h ea r i ng t h e p a r t i es . it ma y ret ur n t he p la int fo r pr e se nt a t io n t o it
a ft er c o mp ly ing w it h t he req uir ement s o f Sub - se ct io n (1) of

• Section 80.

G.Where after a notice under Sec. 80 , a suit is instituted, but the suit is
w it h d r a w n w i t h l i b e r t y t o f i l e a f r e s h s u i t . I t i s n o t n e c e s s a r y t h a t t h e r e
should be fresh notice before second suit is instituted.
 H.Section 80 deals with two classes of cases --- 0) suits against the
Government; and (ii) suits against public officers. In the first case, Notice
under Sec. 80 must be given in all cases. In the second ca se , not ic e u nd er
Sec. 80 is necessary only where the suit is in respect of any act
purpor ted to b e done by which public officer in his official capacity.
I . A N o t i c e u n d e r S e c t i o n 8 0 i s g iv e n f o r t h e b e n e f i t o f t h e d e f e n d a n t a nd
there is nothing to prevent
him from waiving.
J.Te chni ca l Def ect : Se ct io n 8 0 (3 ) e na cts that the s ui ts aga inst
Go ver nm en t or p ub li c o ff ice rs shall not be disMissed merely by any
technical defect or mistakes in notice or any irregularity in the service
thereof.

III. Privileges to Public Officer: Section 83 provides the privileges to

the public officer. It gives exemption from arrest and personal
appearance.

IV. Execution Decree: Section 82 provides that the Execution shah not be
i s s u e d o n a n y d e c r e e a g a inst o r b y Go v e r nme nt o r P ub lic O ffic e r , unle ss it
re ma in- unsa t isfied fo r t he per io d o r 3 mo nt hs compute d from t he date of such
decr ee.

MINORS AND PERSONS OF UNSOUND MIND

SCOPE: The procedure about the suits by or against minors and persons of
unsound mind is explained in Order-32 of C.P.C. Order 32 contains 16 rules.

PROCEDURE - SUITS BY OR AGAINST MINORS

Rule-1 provides that every suit by a minor shall be instituted in his name by a
person who is such suit shall be called "next friend of the minor". Rule-2 provides
where a suit is instituted by or on behalf of a minor without a next friend, the
defendant may apply to have the plaint taken off the file with costs to be paid by
the pleader or other person by whom it was presented. Rule 3-A provides that the
decree passed against minor shall not be set aside unless prejudice has been
attained the majority may act as next friend of a minor or as his guardian for the
suit. Rule-5 provides that in the suit the minor is represented by next friend or
guardian or an advocate through whom he is represented. Rule-6 provides that the
next friend or guardian for the suit shall not, without the leave of the Court,
receive any money or other movable property on behalf of a minor either --- (a)
by way of compromise before decree or order, or (b) under a decree or order in
favour of the minor. Rule-7 provides no next friend or guardian for the suit shall,
without the leave of the Court, expressly recorded in the proceedings, enter into
 any agreement or compromise on behalf of a minor with reference to the suit in
which he acts as next friend or guardian.

Retirement of next friend: Rule-8 provides that the next friend shall not retire without
first procuring a fit person to be put in his place and giving security for the costs already
incurred. The new person should not have adverse interest against the minor.

Removal of next friend: Rule-9 provides that the next friend can be removed on
the following grounds --- (a) where the interests of the next friend of a minor is adverse
to that of the minor; (b) where he is so connected with a defendant Whose interest is adverse
to that of the minor; (c) where he does not do his duty; (d) if he ceases to reside within India;
(e) or for any other sufficient reasons.

Stay of Proceeding: Rule-10 provides that where the next friend is removed under Rule 8 or
Rule 9, further proceedings shall be stayed until the appointment of a next friend in his place.

On Attaining Majority: Rule-12 provides that on attaining majority, the plaintiff --- (a) may
elect
whether he will proceed with the suit or application; and (b) if he elects to proceed with the suit
or

application, he shall apply for an order discharging his next friend and for leave to proceed in his own

name. The title of the suit of application in such shall be corrected in his name.

Co-plaintiff attaining majority: Rule-13 provides that where a minor co-plaintiff on

attaining majority desires to repudiate the suit, he shall apply to his name struck out as
co-plaintiff; and the Court, it if thinks that he is not a necessary party shall dismiss him
from the suit on such terms as to cost or otherwise as jt thinks fit.

'Rule-14 provides that a minor after attaining majority may, if he is a sole plaintiff, apply
that a suit instituted in his name by his next friend be dismissed on the ground that it
was unreasonable or improper.

PROCEDURE REGARDING PERSONS OF UNSOUND MIND

Rule-15 provides that Rules from 1 to 14 (except Rule 2-A) of Order 32 shall be
applicable in case of he suits for the benefit of the persons of unsound mind. The
persons of unsound mind are treated equally with the minors, because they are not in a
position to think the legal relations and consequences of their acts. The Contract Act, 1872
also declares minors and persons of unsound mind as disqualified to enter into contracts.
Therefore Order 32 is equally applicable to the persons of unsound mind and to minors.

PROBLEM: A suit against father and son, forming Joing Hindu family, having been
dismissed against son, money decree against father was levied. Whether on the father's death
the son would be liable in execution? Give reasons. (May, 99 B.U.)
SOLUTION: As a general rule, when a suit is decreed against father, but dismissed agriirs,1
his son of a joint Hindu family, the father is liable to pay the amount foi that decree. After passing
the decree, if the father dies, then also the son is not liable. However, the properties to the
extent of the share of father is liable to decree. The son cannot escape from that liability. At
the same time, the..son is not liable in person or to his share.

SCOPE: Section 96 to 100, 104 and 109 of the Code of Civil Procedure deal with the "First Appeal".
Order 41 explains the procedure about appeal. Order 41 contains 37 Rules.

WHEN CAN AN APPEAL BE ALLOWED?

I. Section 96 provides that an appeal shall lie from every decree passed by any Court
exercising original jurisdiction to the Appellate Court.

2. An appeal shall lie from an original decree passed ex parte.

3. An appeal shall lie from the following orders, such as an order under Section 35-A; an
order under Section 91 or 92 refusing leave to institute a suit of the nature referred in
Section 91 or Section 92, as the case may be; an order under Sec. 95; an order
under any of the provisions of this Code imposing a fine or directing the arrest or
detention in the civil prison of any prison of any prison of any person except where
such arrest or detention is in execution of a decree; any order made rules from
which an appeal is expressly allowed by rules. (Sec. 104).

WHEN CAN AN APPEAL NOT BE ALLOWED?

1.An appeal shall not be allowed from a decree passed by the Court with the consent cl
parties. (Sec. 96)
2.No appeal shall lie, except on a question of law, from a decree in any suit of the nature
cognizable by Courts of small Causes, when the amount of value of the Subject-matter
of the original' suit does not exceed Rs. 3,000 (Sec. 96)

3.Where any party did not appeal against the preliminary decree, he lost his right to file an
appeal after it final decree. (Sec. 97).
4.A decree which is correct on the merits, and is within the jurisdiction of the Court, but still
suffers with some small technical problems, such as misjoinder or non-joinder of parties
causes of action, or any error, defect or irregularity, etc. The decision should not be upset
merely for technical and immaterial defects. In Such occasion, no appeal shall be
allowed. (Sec. 99)
 WHEN MAY ADDITIONAL EVIDENCED BE ADDUCED
IN AN APPELLATE COURT?

As a general rule, the Appellate Court should not seek further evidence: But according to Section
107, the Appellate Court has the following powers:

a. to determine a case finally;

b. to rema nd a c a se;
c. to frame issues and refer them for trial;
d. to take additidnal evidence or to require such evidence to be taken.

Therefore, Section 107 of the C.P.C. permits an Appellate Court to take an additional evidence
adduced before it. Rules 27 to 29 of the Order 41 provide the procedure for taking additional
evidence.

Rule 27 of Order-14 provides that under three circumstances, the Appellate Court may allow
additional evidence. They are:---

1.The court from whose decree the appeal is preferred has refused to admit evidence, which
ought to have been admitted.
2.The party seeking to produce additional evidence, establishes that notwithstanding the
exercise of due diligence, such evidence was not within his knowledge or could not, after the
exercise of due diligence. be produced by him at the .time when the decree appealed
against passed.
3.The Appellate Court shall record the reason for its admission. Rule-28 of Order-41 provides
the mode of taking additional evidence. The Appellate Court may either take such evidence,
or direct the Court from whose decree the appeal is preferred, or any other Subordinate
Court to take-such

evidence and to send to it.

Rule 29 of Older-41 provides that the additior ial evidence when taken, shall be confined and record
the points specified.

FORM OF APPEAL - MEMORANDUM OF APPEAL

Rules 1 to 4 of Order 41 deal with the Form of Appeal. In dealing so, we hear to terms "Appeal" and

"Memorandum of Appeal". "The Appeal" is the judicial examination by a higher court of the decision

of a lower Court. "The Memorandum of Appeal" contains the grounds on which the judicial examination

is invited. The memorandum of appeal must contain the grounds of objections to the decree. The
 format of Memorandum of Appeal is given in the Form No. 1 APPENDIX-G of the First Schedule of the
C.P.C. The memorandum must be accompanied by a certified copy of the decree. It must be signed by the
Appellant or his pleader. It must be presented to the Court or its authorized officer. In fact, the appeal is a
continuation of the suit. The Memorandum of Appeal should be prepared after carefully considering the
pleadings, the issues, the findings thereon in the judgment and the decree. The Appellate Court will register
an appeal when the Memorandum of Appeal is filed. The Appellate Court may order stay of proceedings
under the decree or the execution of such decree, if it satisfies with the grounds submitted. (Rule-5) The Court
may also make an ex parte order for stay or execution pending the hearing of the application. But no stay shall be
granted against money decree.

Rule-11 provides that the Appellate Court has the power to.dismiss an appeal summarily. If the appeal has not been
dismissed under Rule-11, the Appellate Court shall fix a date for hearing of the appeal, and shall send the copy of the
Memorandum of Appeal to the opposite party alongwith the notice to attend the Court, and a copy to the Trial Court. The trial
Court shall send the records to the Appellate Court.

The Appellant has right to begin. After hearing the appellant, and oppoMe party, if the Court finds that there is no substance in the
case, it may dismiss the case. The appeal can also be dismissed on the grounds of default or for non-payment of process fee.' if the
Respondent does not appear, the appeal shall be heard ex parte.

REMAND: Rules 23 and 23-A deal with 'Remand". "Remand" means "to send back". The trial Court decides the suit on a
prgliminary point without recording finds on "other issues". The Appellate Court reverses the decree so passed, and send it back
to the trial Court to decide the "other issues" anc determine the suit. The trial Court according to the instructions of the
Appellate Court readmits such suit with its original number and proceeds to determine "other issues", which are left in the
previous trial and which are directed by appellate Court. This is called "Remand".

JUDGMENT: Section 98, Rules 31 to 34 of Order 41 deal with judgment. It must be in writing. It must state the points for
determination, the decision thereon, the reasons for the decision and where the appeal is allowed and the decree of the lower
Court is reversed or varied, the relief to which the appellant is entitled.

DECREE: Rules 35 to 37 of Order 41 deal with decree. The decree of the Appellate Court shall bear
the date, the day on which the judgment was pronounced. The decree should be signed and dated by
the Judge or Judges who pass il. Copies of judgment and decree shall be furnished to parties. Certified

copy of decree shall be sent to trial Court by the Appellate Court.

SECOND APPEAL

MEANING: The 'Second Appeal' means an appeal to High Court from the decisioh in a civil suit or proceedings of a
First appellate Court subordinate to the High Court. 'Second Appeal' means an 'appeal from an Appellate Court'.

SCOPE: Sections 100 to 103 and Order 42 deal with Second Appeals.
 REVISION
(6)

OBJECT: "Interest republicae, ut sit finish litium." (In the interest of the State, the litigation must come to an end.) But
at the same time, the person should not be aggrieved by the mistake of the law. A balance must be achieved in
between these two concepts. The Second Appeal provides the same.

WHEN CAN A SECOND APPEAL LIE?

The following are the principles basing upon which a second appeal can be admitted before the Appellate Court:—

1.The High Court must be satisfied that the case involves a 'substantial question of law'
2.The High Court at the time of admitting the appeal must 'formulate such question'.
3. The memorandum of a appeal must precisely state such question.
4. The appeal shall be heard only on that question.
5. The High Court is, however, empowered to hear the second appeal on any other substantial question of law, not
formulated by it, if it is satisfied that the appeal involves such question. However, the High Court has to record reasons
for doing so.

WHEN CANNOT A SECOND APPEAL LIE?

A second appeal cannot be admitted on the following grounds:---

1. There is no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, howsoever gross the
error may be.
2.The proper effect of a proved fact is a question of law, but the question whether a fact has been proved when evidence for
and against has been properly admitted is a question of fact.
3.Where the question is one of fact, it does not involve an issue of law merely because documents which were not
instruments of title or. otherwise the direct foundation of rights but were really historical materials, have to be
constructed for deciding the question.
4. Asecond appeal wil not liebecausesome portion oftheevidencemight be contained in a document and the lower Court has
made a mistake as to its meaning.
5. No tuner appeal shall lie against the decision of a single judge in a second appeal. (Sec. 100-A)
No second appeal lie from an order of abatement.

REVISION

CONDITIONS: Section 115 provides for the exercise of revisional powers of

the High Courts. The following four conditions must be satisfied before the
revisional powers of the High Court can be exercised,---
1, T he r e mu st h a v e b e en a c a s e d ec i d e d b y a su b o r d i na t e Co u r t .

2.Such a Court must be subordinate to the High Court ,

3.The decision must be one in Which no appeal lies to the High
Court.
4.The Subordinate Court must have in the decision
o f t h e c a s e , e x e r c i s e d a j u r i s d i c t i o n not vested in
it by law, 'or failed to exercise a jurisdiction vested
in it, or must have acted in the exercise of its
jurisdiction illegally or with material irregularity.

IMPORTANT POINTS ON SECTION 115:

A. "Case decided" means and includes any order made, or any order
d e c i d i n g a n i s s u e , i n t h e c o ur se o f a su it o r o t he r • p r o c e e d in g . " A n y c a s e
w h ic h h a s b e en d ec id ed " m ea ns " ea ch d ed is io n which terminates a part of
the controversy involving the question of jurisdiction".

B. "Sub-ordinate court": A subordinate court is that Court which is subject to

High Court's appellate jurisdiction. Here, a Court means a Court of civil
judicature. It does not include any person acting in an a d mi ni st r a t i v e c a p a c i t y .
A r e v en ue C o u r t i s no t a s ub o r d in a t e Co ur t . J,

C. O t he r r e me d y : Wh er e a no t h er r e me d y is o p e n t o t he p a r t y , e . g . b y a su it
o r a p p ea l o r o t h er w is e, the High Court will . notrnerally entertain an
application for revision.

D . Q uest io n o f jur isd ic t io n: The Hig h Co ur t is b o und to int er fe r e w he r e it

ap p e a r s t ha t t he Co urt in first instance has exercised a jurisdiction not vested
in it by law. Where a Court has jurisdiction to make an order but refuses to make
it on the ground that it has no jurisdiction. This is a good ground for interfering in
revision.

E. "Jurisdiction": There are two classes of cases:

(i) Court decides a question of law pertaining to jurisdiction. By ,a wrong

decision it clutches at jurisdiction or refuses to exercise jurisdiction;
(ii) Co ur t d ec id es a q u es t i o n w i t h in j u r i sd ic t io n. O nl y t he fi r s t c a t e g o r y
o f c a se s a r e o p en t o revision. Section 115 applies to jurisdiction
alone, the irregular exercise or the non-exercise of it or the illegal
assumption of it.

F. "Wrong Exercise of jurisdiction": Where a Court has acted by investing a

rule of procedure
for itself which is not warranted by the law, the High Court is not only competent to
interfere, but should

interfere in its revisional jurisdiction.

 EXAMPLE: The High Court can interfere in revision, when a civil Court has
wrongly entertained a suit cognizable by a Revenue Court.

G. "Absence of jurisdiction": The jurisdiction referred to here is the

j u r i s d i c t i o n o f t h e C o u r t a n d not the competence of any party to sue.

H. "Declining jurisdiction": If by taking a mistaken notion of his legal

p o w e r s , a j u d g e f a i l s t o exercise a jurisdiction vested in him by law, the High
Court can interfere by revision.

I. "..jurisdiction exercised illegally or with material irregularity..

in clause (c) of

Se c . 11 5 is in t e nd ed t o r e fe r t o c a se s, w he r e t he Co ur t ha s j ur is d i c t io n a nd ha s
e x e r c i se d it b u t h a s
act ed illeg ally or with material irr egula rity in the e xe rc ise of jurisd ic tion. This
phrase emp ower s t he

High Court to interfere and correct gross and palpable errors of Subordinate
Courts for the ends of justice. Example: The failure of a Court to fix a time for
payment of process amounts to a material irregularity.

J . D isc r et io n: The rev isio na l jur isd ic t io n by t he Hig h Co ur t is d iscr e t io na ry . The

Hig h Co urt ma y c a ll for records of the subordinate court sue motu or by an
application by the aggrieved party.

K. The High Court will not interfere in revision with an orde•which it is in the
discretion of the tower court to make.

L. Reasons for dismissal: The High Court when summarily dismisses a revision
p e t i t i o n , i t s h o u l d st a le t h e r ea s o n s f o r s uc h su mm a r y d i sm is sa l.

M . L i mi t a t i o n : T he p e r i o d o f li mi t a t i o n f o r p r e f e r r i ng a r e v i si o n a p p l ic a t i o n is
ni ne t y d a y s f r o m t he d ec r ee o r o rd er so ug ht to b e r ev ise d . (A r t ic le 131,
L imit a t io n Ac t 1963)

N. Substantial justice: - the object of the revision is to give substantial justice to

the aggrieved party.
The High Court may dec line to interfere in rev isio n if it is sat isfied t hat substa nt ia l
just ic e has been done.

RE VIE W
REVIEW

MEANING: The term "Review" means a judicial re-examination of a case in certain specified and prescribed circumstances.
This is the ordinary legal significance of the term. A review is practically rehearing of a case by the same judge who has decide
it.

SCOPE: Section 114 and. Order 47 of the C.P.C. deal with Review. Section 114 gives a substantive right or review and
Order 47 of the C.P.C. explains the procedure for Review. Section 114 gives a substantive right'of review and order 47
provides the procedure therefor. Order 47 contains 9 Rules.

OBJECT: It is a general rule that the judgment when one pronounced, signed and dated it should not be altered. Review is
the exception to the rule. The Judge is also human being. If any mistake or error apparent on the face of the record of such other
circumstances, occur, then the party aggrieved by the judgment, may prefer review to the same judge who delivered the
judgment. For a fault of the Court, a man should not be suffered is the object of the review.

GROUNDS: Section 114 and Rule-1 of the Order 47 provide three grounds for the aggrieved person of the judgment
to prefer a review. Any person considering himself aggrieved by any one or all of the following circumstances, may apply for a
review of judgment to the Court which passed the decree or made the order. The circumstances are,---

1.a decree or order from which no appeal is allowed, but fronj which no appeal has been preferred,
2.a decree or order from which no appeal is allowed,
3.decision on a reference from a Court of small causes, and who, from the discovery 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 order made, or on account of some mistake or error apparent on the face of

the record or for any other sufficient reason, desires to obtain a review of the decree

passed or order madeagainst him.

FORMOFAPPLICATIONFORREVIEW: Rule-3 of Order 47 provides that the form of application for review should be like that
of "memorandum of Appeal".

REJECTION/ADMISSION: Rule-4 provides that if the Court is not satisfizd that there is no sufficient

ground for a review) it shall reject the application at the preliminary stage itself: If the Court is satisfied
 that there is sufficient ground for a review, it shall admit the application, fo, review, and give a notic. to

theoppositeparty.

APPEALON REVIEW: Rule-7 provides that an order of the Court rejecting the application shall not be

appealable; but an order granting an application may be objected to at once by an appeal from the

order granting the application or in an appeal from the decree or order finally passed or made in the

suit.

REGISTRY OF APPLICATION GRANTED: Rule-8 provides when an application for review is granted,

a note thereof shall be made in the Register and the Curt may at once re-hear the case or make such

order regard 10 the re-hearing as it. thinks fit.

IMPORTANTPOINTSON REVIEW:

AThepowerofreview is notinherentpower.Itmustbeconferredbythelaweitherspecificallyorby

'necessaryimplication.

B. DiscoveryofnewandimportantMatterorevidence:Everynewandimportantmatterof

evidencediscoveredsubsequenttotheapplicationisnotacceptable.Areviewispermissibleonthe

groundofdiscoverybytheapplicantofnewandimportantmatterofevidencewhich,afterexerciseof

due diligence, wasnotwithinhisknowledgeorcouldnotbeproducedbyhimatthetimewhenthe

decreewaspassed.

EXAMPLE:InMaryJosephinevs.JamesSidney,wherethedecreeforrestitutionofconjugalright

waspassedandsubsequentlyitwasdiscoveredthatthepartieswerecousinsandthemarriagewas,

therefore, nulland void,thereviewwasgranted.

C. Mistake or error apparentonthefaceoftherecord: It is a good ground for review. The error

may be on of fact or of law.

EXAMPLES: (a) The want ofjurisdiction is apparent on the face of the record; (b) Pronouncement of

judgment without taking into consideration the fact that law was amended retrospectively; (c) The

judgment was pronounced without notice to the parties; etc.

D. "Any other sufficient reason": "Any other sufficient reason" means "a reason sufficient on

grounds; at least analogous to those specified in the rule". It depends upon the discretbn of the Court.

EXAMPLES: (a) In a suit, where a party had no notice or fair opportunity to produce his evidence; (b)

in a suit the Court had failed to consider material issue, fact or evidence, etc.

E. Power of Court to Review: The power of review is not an inherent power. It must be conferred

by the law either specifically or by necessary implication. The statute has given the power to the Civil

Court by the way of review to prevent miscarriage of justice or to correct grave and palpable errors

committed by it The Supreme Court opined: "Whatever the nature of the proceeding, it is beyond

dispute that a review proceeding cannot be equated with the original hearing of the case, and the

finality of the judgment delivered by the Cowl wil not lie reconsidered except where a glaring omission

or patent mistake or like grave error has crept in earlier by judicial falibilityr

OBJECTS AND REASONS OF THE LIMITATION ACT, 1963

1. The ma in a nd Impor tant o bject o f t he Limita tio n Act is to p ut an end to

the lit ig at ion in the int erest s
o f t he St a t e. Th e L a w o f L i mi t a t i o n p r e sc r ib e s a l im it fo r e v e r y
d i sp ut e. "I nt er est r e pu bl ic ae u t sit f ines I lt ium . " ( The int er est of the
St at e r equir es t hat a per iod should be put t o lit igat ion. )
2. If t h er e is no li mi t a t i o n , t he nu mb e r o f t h e s ui t s i n t h e c o ur t s w il l b e
in c r ea s ed t o t e n fo l d o r mo r e .
3. If there Is no limitation, it leads to Innumerable litigation, which
further imposes more financial
b urd en o n t he St a t e, d ue t o he a vy p e nd ing ca se s be fo r e t he Co ur t s.
4. If there is no limitation, it also causes hardship to the judiciary. It
consumes the most of the
 precious time of the Courts. The numerous vexatious, harassment
s u i t s w i l l b e f i l e d i n t h e Courts. The real suffer's claim will be kept in
abeyance under the heap of biased and fake suits Hence there must be
an end to litigation.
5. The death of the parties and witnesses, the loss of destruction of
documents and the fading of
memory in the course of time, render such- a limit highly expedient for
putting a limit to litigation.
6. No hindrance should be placed upon free circulation of property but
so long as the title to the
p r o p er t y r e ma in s d u b i o u s a nd un se t t le d s uc h c ir c u la t i o n c a n no t t a k e
p l a c e fr e el y o r a t a l l.
7. The law of limitation renders the peace in the Society.
8. John Voet, famous jurist says: "Controversies are limited to a fixed
period of time, lest they
should be im m or t al while m en ar e m odal"

"Vigilantibus non dormantibus Jura subvenient."

B y t he a b o v e o b jec t s a n d r ea so ns , w e u nd e r st a n d t ha t t h e L a w o f L i mi t a t i o n
sh ut s t h e w a y o f ju d i c i a l p r o c e s s t o a c l a i m a n t i n t h e i n t e r e s t s o f t h e S t a t e a n d
f o r t h e p u b l i c p e a c e . At t h e s a m e t i m e , w e h a v e to observe that for every kind
of dispute, limitation is fixed by the Limitation Act to do justice to every
claimant. There are 137 articles in the Schedule. Different topics are given in
t h e a r t i c l e s w i t h t h e periods of limitation.

REFERENCE: Section 3 defines 'Bar of Limitation'.

SECTION-3:

Sec. 3. Bar of Limitation.— (1) Subject to the provisions contained in

Sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and
application made after the prescribed period shall be dismissed
although limitation has not been set up as a defence.

(2) For the purpose of this Act--

(a) a suit is instituted,--

(1) In an ordinary case, when the plaint is presented to the proper officer;

(ii) In the case of a pauper , when his application for leave to sue as a

pauper is made: and

(iii) in the case of a claim against a company which is being wound
up by the court, when the claimant first sends in his claim to the
official liquidator;
 (b) any claim by way of a set-off a counter claim; shall be tre
separate suit and shall be deemed

to have been instituted:–

(i) in the case of a set-off, on the same date as the suit In which the set-off

is pleaded;
(ii) in the case of a counter claim, on the date on which the counter claim is

made In Court;
(c) an application by notice of motion in a High Court is made when the application
is nmsented to the proper officer of that court.

Section 5 of the Limitation Act, 1963 explains about the extension of prescribed
period in certain cases, which is simply called as 'Condonation of Delay'.

SECTION-5:

Sec. S. Extension of prescribed period in certain cases.— Any

appeal or any application, other than an application under any of the
provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908)
may be

admitted after the prescribed period, if the appellant or the applicant

satisfies the court that he had sufficient cause for not preferring the
appeal or making the application within such period.

Explanation: The fact that the appellant or the applicant was misled by any order,
practice, or judgment of the

High Court in ascertaining or computing the prescribed may be sufficient

cause within the meaning of this section.

INGREDIENTS:

1. Section 5 applies to any appeal or any application, other than application under
any of the provisions o f O r d e r X X I o f t h e C i v i l P r o c e d u r e C o d e .
2. Section 5 does not apply to fresh suit.
3. Thn appellant or applicant must satisfy the court showing the wi-nuine reasons
for the delay.
4. Th e r ea so n s sh o w n m us t ha v e su ff ic ie nt c a us e .

5. The appellant or the ap; licant wcs misled by lny order , practice judgment of the
Hioi as - r t a i n i n g or con:putt; ig the prescribed pe rad may be sufficielii cause. Court in
ThLI court s h o u l d ye satisfied as to each day's delay if it is to exercise its
discret.on in the Pet itioner's/Appellant's favour.

LEGAL DISABILITY

Legal Disability = Disability is the want to capacity of the legal qualifications to act as
1 such as have been mentioned is Section 6, of the Limitation Act, 1963, viz., minority,
.
insanity or idiocy. Legal Disability • Is a genuine cause, which extends the period of
limitation.

SCOPE: Sections 6, 7, 8 and 9 of the Limitation Act, 1963 lay down the provisions extending
the period of limitation to the persons suffering with disability, i.e., minority, insanity or idiocy.

SALIENT FEATURES OF SECTIONS 6, 7 AND 8

Section 6: Section 6 excuses minor, insane or an idiot to file a suit or make an application for
the execution of a decree of a decree and enables him to file the suit or make an application
after the disability has ceased counting the period of time the date on which the disability
ceased.

2. It does not apply to appeals. It applies only to suits and applications for execution of
decrees for which period of limitation is mentioned in the 3rd column of the
Schedule.
3. The disability is confined only to minority, insanity and idiocy. Minor includes a child in
the womb. This section does not extend to persons of inability, i.e., poverty, parda
nashin, etc.
4. A plaintiff, himself under no disability, is not entitled to the benefit of the Section merely
because the defendant is under a disability.
5. Application of Section: This section applies to suits and applicatiqns for execution of
decrees brought by and notagainst persons under disability.
6. xistence of disability: The disability must exist at the time from which the period of
limitation is to be reckoned.
7. This section applies to claims for compensation under the Motor Vehicles Act, 1939. a: Burden
of Proof: Burden of proof lies on the person who claims the benefit under disability.

9. In computing the period of limitation for a minor, the date on which he attains majority must be
excluded from calculation.
10. Section 7: Section 7 is a supplement to Section 6. It provides about the disability of one of
several persons, i.e. where one of several persons suffers disability. Where one of several persons
jointly entitled to institute a suit or make an application for the execution of decree is under any
such disability, and a discharge can be given without the concurrence of such person, time will
run against them all, but where no such discharge can be given, time will not run as against any
of them until one of them becomes capable of giving such discharge without the concurrence of
the other or until disability has ceased.
11. The Manager of Hindu undivided family governed by the Mitakshara Law shall be deemed to be
capable of giving a discharge without the concurrence of the other members of the family only if
he is in management of the joint family property.
12.Section 8: Section 8 provides special exceptions. Nothing in Section 6 or in Section 7 applies to

suits to enforce rights of pre-emption, or shall be deemed to extend, for more than three years

from cessation of the disability or the death of the person affected thereby the period of limitation

for any suit or application.

Section 9: Section 9 provides that when time begins to run no subsequent disability or inability to
institute a suit stops it.

IMPORTANT POINTS ON "MESNE PROFITS":

A Wrongful possession is the basis of a claim for mesne profits.

B. "Mesne Profits" will be accrued from immovable property only.

C. A decree for mesne profits can be passed against a trespasser , or against a
mortgagor in

possession of the mortgaged property after a decree for foreclosure has been
passed against

him, or against a tenant holding over tenancy-at-will after a notice to quit has been
served upon

him.

D. The assessment of mesne profits is on the basis of the principle that what
the defendant gained or might reasonably and with ordinary prudence
have gained by such wrongful possession, but not what the plaintiff has
lost by being out of possession.
E. The defendant is entitled to compensation for improvements spent by him in
managing the property, but not for infructuous litigation in connection with
the management.
F. Court may allow mesne profits in excess of the claim.
G. Interest may also mesne profits. The proper rate of interest is 6 % per annum.
H. The Court has discretionary power to assess the me ne profits and interest
thereon.
I. BURDEN OF PROOF: The burden of proof lies on the plaintiff or defendant
depending upon the circumstances of the case. If it is a claim for actual
 profits the defendant should prove the actual receipt. If it is for estimated
profits, the plaintiff should: prove the probable receipts.

In a suit for possession and mesne profits, the Court can grant future mesne profits even if
it is not specifically prayed for.

RES SUB JUDICE

Both the suits must be between the same parties or their representatives.

3.Such parties must be litigating in both the suits under the same title.
4."The Court" means Indian Courts only. It does not include foreign Courts.
Therefore, the pendency of a suit in a foreign court does not preclude the Courts
in India from trying a suit founded on the same cause of action.
5.Inherent power to Stay: The Civil Court has inherent power under Section 151 of
the Civil Procedure Code, 1908. Even though in the cases where Section 10 does not
apply, the Court has inherent powers and discretionary powers to stay the
proceedings. [Refer topic "Inherent Powers of Civil Courts".l
6.Special Law: If a suit is pending in a court and subsequently an application is filed
under some special law before the tahsildar regarding the same subject-matter, the
application is not barred, since the tahsildar is not a "Court".
7.Conditional Stay: The court cannot impose conditions when staying a suit.

MEANING: Where two cases are filed between the •3ame parties on same subject-
matter in two different courts, the competent Court has the power tc stay the
proceedings of another Court. This is called "res sub judice".

SCOPE: Section 10 of the Civil Procedure Code, 1')08 deals with the cases of "res sub
judice".

OBJECT: The object of Section 10 is to prevent Court of.concurrent jurisdiction from

simultaneously trying two parallel suits in respect of the same matter in issue. The aim and
object of Section 10 is to minimise litigation and to see that Courts of co-equivalent
jurisdiction avoid conflicting decisions so that precious time of the Courts is not wasted
 in trying the same cause of action between the same parties to enjoy the fruits of the
decree passed in his favour.

CONDITIONS:

1.The matter in issue must be substantially the same.

2.The previously instituted suit must be pending in the same Court or any other Court.
Such Court must be competent to grant,---

(i) the relief claimed in the suit; and

(ii) the relief claimed in the subsequent suit.

Both the suits must be between the same parties or their representatives

DISTINCTION BETWEEN "SET-OFF" AND "COUNTER-CLAIM"

SET - OFF COUNTER - CLAIM

1. Set-off is explained in Rule-6 of Order-8
of C.P.C. 1.
Counter-claim is a new provision
and the

Rules 6-A to 6-G have been inserted in

the
2. Set-off is an old provision, and is existing since
Civil Procedure Code, 1908 by
the enactment of C.P.C
C.P.C.

Amendment Act, 1976.

3. Set-off is of two kinds --- (i) Legal Set-off; and
2. Counter-claim has no such
(ii) Equitable Set-off. classification.

4. Set-off is a statutory defence of the defendant

3. Counter-claim is substantially a cross-
action.
to a plaintiff's action 4. A Counter-claim can be
made for an

ascertained sum, or even for an unascertained

5. Set-off Must be for an ascertained sum.
Counter-claim is explained in Rules from 6-A to sum.
6-G of Order-8.

6. Set-off must arise out of the same transaction.

 7. I n a s e t - o f f , t h e d e f e n d a n t d e m a n d s
i n a plaintiff's suit an amount below or upto the
suit claim.
6. In a counter-claim, the defendant
8. The amount must be recoverable at the demands
date of the suit.
fo r a lar ge amo un t. T he cl aim fo r
9. Set-off is a ground of defence to the ex cess
plaintiff's action, just like a shield.
amount is really a counter-claim.

7. The amount must be recoverable at

the date

of the written statement.

8. Counter-claim is a weapon of offence,

just like

a sword which enables the

defendant to

enforce the claim against the

plaintiff

effectually as an independent action.

9. A counter-claim is a claim
made by the

defendant in excess of the right claimed

by

the plaintiff.

IMPORTANT POINTS ON SET-OFF:

A Both the character of plaintiff and defendant should not be altered in the claim of
set-off.
 B. The suit must be for the recovery of money. The suit for the recovery of any
other property shall

not be liable to set-off.

•

C. The sum of money which is liable to be set off must be ascertained. (Example:
Illus. (c), (d) and (e).
D. The debt or money must be recoverable by the defendant's from the plaintiff/s.
(Example: Illus. (f) and (g).
E. The right of set-off exists not only in cases of 'mutual debits and credits' but
also of cross demands arising out of the same transaction.
F. A barred debt should not exceed the pecuniary limits of the jurisdiction of the
Court in which the suit is brought
G. A plea of set-off cannot be raised without filing a written statement.
H. 'Debt' in the Rule-6 means a present obligation to pay a liquidated sum of
money. "Ascertained sum" means a conclusive and indisputable amount. It
does not include unliquidated damage and mesne profits. A sum to be
ascertained on a settlement of account is not an ascertained sum.
I. Legal set-off can be claimed as of right and the Court is bound to entertain
and adjudicate upon it.
J. The a mo unt cla imed to b e set o ff must be "leg ally recov era ble"'

WHAT IS EQUITABLE SET-OFF?

Meaning: Equitable set-off means a set-off for an unascertained sum of

m o n e y a r i s i n g o u t o f cross-demands arising out of the 'same transaction'.

SCOPE: The equitable set-off is allowed by Court of Equity in England. Rule-19 (3)
of Order-20 of the Code of Civil Procedure in India recognises an equitable set-off.

IMPORTANT POINTS ON EQUITABLE SET-OFF:

A An equit able set -o ff ca n be p leade d in r esp ect of unascer taine d sum.

B. An equitable set-off may be claimed by the defendant for a claim arising out of the
same transaction as the plaintiff's claim.
C. Rule-6 is not a bar to equitable set-off.
D. Where set-off is claimed on the basis of an agreement , no set-off can be
claimed outside the terms of the agreement, which the Court finds it to be
proved.
E. An equitable set-off which is barred by limitation cannot be allowed.

Equitable set-off be claimed as of right. The Court has discretion to refuse to

adjudicate upon it.
LEGAL SET-OFF EQUITABLE SET-OFF
1 . Rule-6 of Order-8 explains about 1. Rule-19 (3) of Order 20 explains
the legal set-off. a b o u t Equitable Set-off.

2. In India, legal set-off is allowed in 2 . Equitable set-off was allowed by the

majority cases. Court of Common Law in England. Very
rarely in India too, it is allowed.

3. Legal set-off must be for an

ascertained sum or money. 3 . Equitable Set-off may be allowed even
for unascertained sum of money.

4. It can be claimed as of right. The

Court is bound to entertain and 4 . I t cannot be claimed as of right. The
adjudicate upon it. Court has a discretion to refuse to
adjudicate upon it.

5. It is not necessary in a legal set-off

that the c r o s s - d e m a n d s a r i s e o u t o f 5. Equitable set-off can be allowed
t h e s a m e transaction. only when t he cr o ss- d e ma nd s ar ise
o ut of t he sa me transaction.

6. C o u r t - f e e i s r e q u i r e d f o r a c l a i m
o f l e g a l set-off. 6. No court fee is requwed in case of
equitable.

INDIGENT PERSON

SCOPE: Order-33 explains about the suits to be filed by indigent persons,

and the procedure of filing. Order-33 contains 18 rules.

N
 DEFINITION: Explanations I & II of Rule- 1 of Order-33 define "an
Indigent person":
Explanation-I: A person isan indigent person,—

(a) if he is not posse sed of sufficient means (other than property

exempt from attachment in execution of a decree and the
subject-matter of the suit to enable him to pay the proscribed by
law for the plaint in such suit, or
(b) where no such fee is prescribed, if he is not entitled to property
worth one thousand rupees other than the property from
attachment in execution of a decree, and the subject-matter of
the suit.

Explanation-II: 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.

Rule-9 provides that the Court may withdraw the permission granted to the
indigent person, on the app licat io n of t he defenda nt or of the Gov ernme nt
plead er. Befor e withdra wing such pe rmission the C o u r t s h a l l g i v e 7 d a y s
clear notice in writing to the plaintiff. Rule-9 gives three grounds for
dispa up er ing: ---

(a)

if the indigent person is guilty of vexatious or improper conduct in

the course of the suit;

(b)if it app ear s t hat his means are suc h that he ought not t o
continue to sue a s a n ind ig ent person; or
(c)if he has entered into any agreement with reference to subject-
matter of the suit under which any person has obtained an
interest in such subject-matter.

Illustrations

(a)An indigent person agrees to pay his advocate a large sum of

money, if he wins his case. It is a good ground for
dispaupering him.
(b)An agreement with a stranger for financing the litigation and
for conveyance of the properties in consideration thereof is also
a good ground for dispaupering him.
(c)A pauper-plaintiff dies pendent. life (pending litigation) and his
heir who was added as his legal
representative was found to be possessed of sufficient means to pay court-fee.
It was held as the heir

sought to continue the suit in his own capacity and not in any representative
capacity. He could be

dispaupered.

(d)An indigent person mortgages the property in suit and executes

a mortgage-bond. It is a good ground to dispauper him.

10. Free legal service: Rule 9-A provides that where a Court grants the
application of an indigent person who is not represented by any advocate, then
the Court may give the assistance of an advocate, with the previous approval of
the State Government. Rule-18 provides that Government may provide free
legal services to indigent persons.
11. Procedure where indigent person succeed: Rule-10 enacts that where the
indigent person succeeds, the court-fee shall be recoverable by the State
Government from any party ordered by the decree to pay the same, and shall
be a first charge on the subject-matter of the suit.

Procedure where indigent person fails: Rule-11 provides that where the plaintiff fails
in the suit, or is dispaupered, or where the suit is withdrawn or dismissed, the Court shall
order the plaintiff, or any person added as a co-plaintiff to the suit, to pay the Court-fee
which would have been paid by the plaintiff if he had not been permitted to sue as an indigent
person. Where the suit abates by reason of the death of the plaintiff, the Court fee shall
be recoverable by the State Government from the estate of the deceased plaintiff.

APPEALS BY INDIGENT PERSONS

SCOPE: Order-44 enacts the appeals by indigent persons. Order 44 contains 3

rules.

Rule - 1: The indigent perso n is entitled to pr efer a n ap pea l. The app ea l sha ll be
pre se nt ed in an
:application accompanied by a memorandum of appeal. The provisions of the appeal
shall be applicable.

Rule-2: The Court may grant the time for payment of Court-fee, in case of an
application rejected under Rule-1.

Rule-3: Generally no further inquiry is required in the case of appellant-indigent But if the
Government pleader of the respondent disputes, a further inquiry shall be proceeded by
the Appellate Court regarding the pauperism of the appellant. The inquiry shall be
conducted by an officer of that Court.
AFFIDAVIT

MEANING: An affidavit is a declaration as to facts, made in writing swcm before a person

having authority to administer an oath. Ordinarily interlocutory applications such as an application
for attachment before judgment, interim injunction, appointment of receiver, etc., can be
decided on affidavits.

SCOPE: Order-19 deals with affidavits. Order 19 contains 3 Rules. Order-19 has to be read
alongwith Section 30 and 139.
 ESSENTIALS:

1. An affidavit must be in writing.

2. It must be in the first person.

3. It must be a declaration made by the deponent.

4. It must have been sworn or affirmed before an authorised officer.

5. Particular fact or facts may be proved by affidavit.

6. There must be verification at the end of an affidavit.

7. Affidavit must disclose nature and source of knowledge.

8. Oath on affidavit by whom to be administered: Section 139 provides that the

affidavit must

be made before -

(a) any Court or Magistrate; or

(aa) any Notary;

(b) any officer or other person appointed by High Court;

(c) any officer appointed by any other Court having competency to do so.

9. Power to order discovery: Section-30 provides that the Court may, at any time,
either of its own motion or on the application of any party, order any fact to be
proved by affidavit.

10. Power of Court: Rule-1 of Order-19 provides that any Court may at any time, either
of its own motion or on the application of any party, order any fact to be proved by
affidavit.

11. Rule-2 of Order-19 provides that upon any application, evidence may be given by
affidavit, but the Court may, at the instance of either party, order the attendance for
cross-examination of the deponent.

12. Matters to which affidavits shall be confined: Rule-3 provides that the affidavit shall
be confined to such facts as the deponent is able of his own knowledge to prove,
except on interlocutory applications, on which statements of his belief may be
admitted.

13. Costs: Sub-rule-2 of Rule-3 of Order-19 provides that the costs of every affidavit
which shall unnecessarily set forth matters of hearsay or argumentative matter, or
 copies of or extracts from documents, shall (unless the Court otherwise directs) be
paid by the party filing the same.

14. Before Quasi-judicial authorities: For obtaining Duplicate Certificates, etc., the
person/deponent has to submit an affidavit stating the facts of loss of such original.

STAGES OF A SUIT: The following are the most important stages of a suit:-

1. institution of a Suit: The person who wants justice from a Court has
to file a suit before the competent court. Order-1 deals with the parties to
the suit. Order-2 deals with frame of suit, Order-3 deals with recognised
agents and pleaders. Order-4 deals with institution of suits. Order-5 deals with
issue and service of summons. Order-6 deals with pleadings generally.
Order-7 deals with Plaint. Orders from 1 to 7 come into play to bring a suit
before the Court. This is the first stage.

2. Issue and Service of Summons: After the plaint has been instituted, it is
registered before the Court, and the Court Orders that summons shall be
issued to the defendant to appear and answer the claim on day and date
specified therein. (Sections 27, 28, 29 and Order 5)
3. Written Statement: The defendant has to answer the suit. His
way of answer is "written statement". Order-8 explains the procedure of
written statement. The defence of the defendant depends upon the written
statement. The defendant can produce the documents and oral evidence
for his defence.
4. Effect of Appearance and Non-appearan of Parties: The plaintiff and
the defendant have to appear before the Court either personally or th ough
his advocate/s. If the plaintiff does not appear before the Court on the dates
specified or he is not represented by his advocate, the Court may dismiss
the suit. Where the plaintiff presents, but the defendant does not present or his
advocate does not present, then the Court may proceed ex parte and pass an
ex parte order. (Order-9).
5. Discovery: Every party to a suit is entitled to know the nature of his
apparent case, so that he may be able to put forth a proper reply to it. If the
pleadings are not clear and do no disclose the real state of affairs, if there is some
ambiguity, a party is entitled to obtain further information from the other side by
serving interrogatories. 'Discovery' means to disclose all material facts which
constitute a case, and all cases necessary to support his opponent's case.
6.Settlement of Issues: After filing of written statement, the stage is "Settlement
of Issues". By the settlement of issues, the'Court comes to a position to find out
the real question is controversy between the parties. If the Court finds that the
parties are not at issue on any question,of law or fact it

.-may at once pronounce the judgment. If the Court finds that pleadings are not clear
-

on certain point, it
 may examine the parties. (Order-14).

7.Trial: The trial of a case begins with the production of evidence by the parties to the
defendant, who produces his evidence and witnesses, whpm the court examines.
After production of evidence, chief examination, cross-examination and re-
examination are the important stages in trial. After this stage, the Court concludes
the evidences. The advocate of the plaintiff first places his argument before
the court. Thereafter the advocate of the defendant places his argument
before the Court.

(Orders 10, 12, 13, and 15 to 19).

8.'Judgment: After the case has been heard, the Court shall pronounce judgment
in open Court either at once or on some further date, of which due notice shall be
given to the parties or their pleaders

(Order 20 - Rules 1 to 6-B and 20)

9.Decree: After the judgment is pronounced, the successful party applies to the
Court for the drawing up of the decree which is drawn up by an officer of the Court.
The decree shall agree with the judgment. (Order 20 Rules from 7 to 20)

Execution: It is the enforcement by the process of the Court of its own decrees and
orders. It is the final stage of the suit. The successful party.nriakes an execution
application for enforcement of the decree. (Sections 36 to 74) (Order-21).

DISTINCTION BETWEEN "REFERENCE" AND "REVISION"

REFERENCE
1. Section 113 and Order 46 deal with
reference.
2. The object of making a reference is to
enable the subordinate courts to
obtain the opinion of the High
Court in advance on a question of
law in non-appealable cases, and
thereby to a v o i d t h e
commission of an error which
cannot be remedied later on.
3. The case is referred to the High Court
by the subordinate Court to that
High Court. The party is not
entitled to make a reference.
4. The grounds of reference relate to
reasonable doubt on a 'question of
law'.
REVISION
1. Section 115 deals with
revision.
2 . Th e o b j e c t o f r e v i si o n i s t o
p r e v e n t t he subordinate courts
from acting arbitrarily,
capriciously and illegally or
irregularly in the exercise of their
jurisdiction.
3 . In revision, the jurisdiction of the
High COurt is invoked either by
the aggrieved party or by the High
Court suo motu.
4. Th e gr ou nd s for revi si on
r e l a t e t o 'jurisdictional
errors' of the subordinate court.
It is of commanding nature from High
It is of consultative nature from subordinate
Court to High Court.
DISTINCTION BETWEEN "REFERENCE" AND "APPEAL"
REFERENCE
1. Section 113 and Order 46 deal with
reference.
2. The power to seek reference is vested in
the subordinate Courts.
3. Reference is made by a subordinate Courts
to the High Court
4. Reference is always Made to the High Court.
5. The grounds of reference are narrower
than the grounds of appeal.
6.Reference is always made pending a
suit, appeal or execution proceedings.
7.The object of making a reference is to
enable
the subordinate Courts to obtain the
opinion
of the High Court in advance on a
question of
law in non-appealable cases, and
thereby
Court to its subordinate courts.
APPEAL
1. Sections 96 to 112 and Orders 41 to
45 deal with first appeals and
second appeals.
2.The right of appeal is a right conferred on the
suitor.
3. Appeal is referred by the party of the suit
4. An appeal can be filed to a superior
court which need not be necessarily be a
High Court. i.e. appeal from District
Munsiff Magistrate's Court/Subordinate
Judge's Court to the District Judge's Court,
and an appeal from the District Judge's Court
to High Court, and an appeal from High
Court to Supreme Court.
5. The grounds of appeal are wider than the
grounds of reference
6. An appeal can only be filed after the
decree is
passed or an appealable order in made.
to avoid the commission of an error
which
cannot be remedied later.
8. In a State, there is o n l y o n e
t e f e r e n c e jurisdiction, i.e. High Court.
DISTINCTION BETWEEN "REVIEW" AND "REFERENCE"
REVIEW
1. Any Court, which passed the
decree or made the order, can
review the case
2. An application for review can
only made after the decree is
passed or order is made
3 . The application is made by the
aggrieved party t o t h e s a m e C o u r t
w h i c h p a s s e d t h e d e c r e e or made
the order.
4. S e c t i o n 1 1 4 a n d O r d e r 4 7 d e a l
with review
5 . T he g r o un d s f o r r e v i ew a r e: ( a )
d is c o v er y o f n e w a n d i m p o r t a n t
m a t t e r o r e v i d e n c e : ( b ) m is t a k e o r
er r o r a p p a r en t o n t he fa c e o f t h e
record: (c) any other sufficient
reason
7. The object of appeal is based on principle
of natural justice. An appeal is a
continuation of suit in the eye of the law. It
is a creation of the law. Some times the trial
court may make some mistakes. For the
mistake of trial court, the party shall not be
penalised
REVIEW
1. Reference can be made at
any stage of p e n d i ng a
suit, appeal or execution
proceedings, but be made
before passing of • the
judgment in the case.
2. The subordinate Court
r e f e r s t h e c a s e f o r re fe r e nc e
to t he Hig h Co ur t . The pa r ty
ha s no r i g h t t o m a k e
reference.
3. Section 113 and Order 46 deal
with reference
4. The grounds for reference are:
(a) a question of law or usage
having the force of law must a r i s e
in the course of such suit, appeal
or proceeding; (h) the Court trying
t h e s u i t o r a p p e a l o r e xe c u t i ng t he
d e c r e e mu st e nt e r t a i n a r e a s o n a b l e
doubt on such question
REVIEW
1 . S e c t i o n 1 1 4 O r d er 4 7 d e a l w i t h
Review.
2 . Any court , w hich pa ssed t he
decree or ma de o r d e r , c a n
r e v i ew t h e c a s e .
3. T h e r e v i e w c a n b e m a d e
o n l y o n a n a p p lic at io n b y a n
a g gr iev ed p a rt y .
4 . The o r der gr a nt ing t he r ev iew is
a p p ea la b le.
5. Review c a n be ma d e even
w hen a n a p p ea l lies to the
High Court.
6. The grounds for review are: (a)
discovery of
new and. Important matter or
evidence: (b)
mistake or error apparent on the
face of the
r eco r d ; (c ) a ny ot her suffic ient
r ea so n.
DISTINCTION BETWEEN "REVIEW" AND "APPEAL"
REVIEW
1. S e c t i o n 1 1 4 a n d O r d e r 4 7 d e a l
with review
REVISION
1. Section 115 deals with the
Revision.
2 . The High Court can only do
revision of any ca se whic h
has been decided by any
c o u r t subordinate to it.
3 . Revisionpl powers can be
e x e r c i s e d b y t h e High Court on
an application or even sue mote
(of its own motion).
4 . An order passed in the exercise
of revisional j ur isd ic t io n is no t
ap p e a la b le .
5 . Revisional power can be
exercised by the High Court
only in a case where no
a p p e a l lies to the High Court.
6 . The Co nd it io ns: (a ) A c a se
must ha v e b e e n d e c i d e d ; ( b )
the Court which has decided
the case must be a Court
subordinate to the Hig h Co ur t ;
(c ) The o rd e r sho uld no t be
an appealable one; (d) The
subordinate court must have
- (i) exercised jurisdiction
n o t vested in it by law; or (ii)
failed to exercise jurisdiction
vested in it. or (iii) acted in
the e x e r c i s e o f i t s j u r i s d i c t i o n
i l l e g a l l y o r w i t h material
irregularity.
APPEAL
1 . Se c t io n s 96 t o 1 12 a nd O r d e r s
41 t o 4 5 d e a l with appeals.
2. A n a p p e a l l i e s t o t h e s u p e r i o r
c o u r t f r o m inferior court.

2. A r e v i e w l i e s t o t h e s a m e
Court
3. There is only one review.
S e c o n d r e v i e w application does not
lie
4. Rev iew o f jud g ment inv o lv e s
r eco nsid er a t io n of the same subject
matter by the same judge
5. The grounds of review are
narrower than the g r o u n d s o f a p p e a l
DIFFERENCE BETWEEN "FIRST APPEAL" AND "SECOND APPEAL"
FIRST APPEAL
1. The First Appeal can be admitted on the
grounds - (1) question of fact; and also (2)
question of law.
2. The First Appeal can be entertained
by subordinate Courts to District Judge's
Court and to High Courts.
Example: An appeal from the District Munsiff
Magistrate's Court or Subordinate' Judge's
Court to the District Judge.
3.Sections 96 to 99-A, 107 and Order 41 deal
with First Appeals.
The Memorandum of first appeal must set out the
grounds of objections to the decree appealed
from.
3. There are three appeals (a)
f r o m D i s t r i c t Munsiff Magistrate
Court/Subordinate Judge's C o u r t
to District Judges (First
Appeal); (b) f r o m D i st r ic t
Judge's Court to High Court
(Second Appeal); (c) from
H i g h C o u r t t o S u p r e m e Co u r t
(Third Appeal).
4. An appeal is heard by a
different judge
SECOND APPEAL
1. The Second Appeal can be admitted only on
the point of 'substantial question of law'.
2. The Second Appeal can only be entertained by
the High Court.
3. Sections 100 to 103 and Order 42 deal with
Second Appeal.
Since the second appeal is maintainable only when it
involves a substantial question of law, a
memorandum of second appeal must precisely
state such question. It need not set out the grounds of
objections to the decree appealed from
PROCEDURE: The Second Appeal shall be heard as per the provisions of "First Appeal" laid down in Order XLI.

SUBSTANTIAL QUESTION OF LAW

1. Every question of law is not a substantial question of law.

2.Example: Where the case is involved principle applicable as to binding that the nature of widow's
alienation and it was held that a substantial question of law arose.

3.Construction of Deed is not a substantial question of law.

4.Question of applicability of law of pre-emption is a substantial question of law.
5.Thequestionwhetherfraudofthemortgagorwouldvitiateregistrationanddisentitledthemortgagee
to enforce his mortgage is a substantial question of law and fit for appeal.

6.Where a secondary evidence of the contents of the deed was led without objection by the other
party, that objection cannot be raised in second appeal.

7.A point of law whichdoes not requireany questionoffact to be determined but can be decided on
the record as its stands may be allowed to be raised in second appeal for the first time.

8. A mixed question of fact and law cannot be raised on second appeal for the first time

SUITS BY OR AGAINST FIRMS

0.1. Discuss the law relating to suits by or against th9 firm.

AN S WE R:

INTRODUCTION: Registration of firms is not compulsory. It is optional. There is no

penalty for non-registration. But it is necessary for the purpose of the suits.
Section 69 of the Indian Partnership Act, 1932 provides that the partners of an
unregistered firm have no right to sue.

i.Suits between partners and firm:. A partner of an unregistered firm cannot sue
the firm or his present or past co-partners for any dispute arising out of any contract. If
 a suit is filled without registration, it is liable to be dismissed. The defect cannot be
rectified by subsequent registration.
ii.Suits between firm and third parties: An unregistered firm cannot sue any third
party for the enforcement of any right arising from contract.

SCOPE: The procedure to file the suits by or against firms and persons carrying
on business in names other than own is explained in the Order-30 of the C.P.C.
Order 30 contains 10 rules:

IMPORTANT POINTS:

A Suing of partners in name of firm: Rule-1 provides 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 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 case
apply to the Court for a statement of the' names and addresses of the persons who
were, at the time of accruing of the cause of action, partners in such firm, to be
furnished and verified by any one of the partners.

B. Disclosure of partners' names: Rule-2 states that where a suit is instituted by

partners in the name of their firm, the defendant can demand to disclose all the
partners of the firm.
C. Service:. Rule-3 provides that the summons shall be served upon any one or more
of the partners, or at the principal place ?f partnership business upon any person having
the control of management of the partnership business there.
D. Right to sue on death of partner: Rule-4 provides that where two or more
persons may sue or be sued in the name of the firm and any of such persons die,
whether before the institution or during

the pendency of any suit, it shall not be necessary to join the legal representative of
the deceased as a party to the suit.

E. Notice in what capacity served? Rule-5 provides that the notice or summons
shall be served on the person having the capacity of a partner of manager or both
capacity.

G. Appearance of partners: Rule-6 provides where persons are sued as partners

in the name of their firm. they shall appear individually in their own names. Rule-7
enacts that only the partners shall attend before the Court. The manager is not
competent to attend the Court. Rule-8 provides that any person served with summons
as a partner may enter an appearance under protest, denying that he

was a partner at any material time.

H. Suits between co-partners: Rule-9 provides that Order-30 applies also to suits
between a firm
and one or more of its partners therein and to suits between firm having one or
more partners in
common. No execution, however, can be issued in such suits except with the leave of
the Court. Rule-

10 provides that any person carrying on business is a name or style other than his
own name, or a Hindu undivided family carrying on business under any name, may
be sued in such name or style as if it were a firm name, and in so far as the nature
of such case permits, all rules under the Order-30 shall apply accordingly.

LIMITATION PRESCRIPTION
Meaning: P e r i o d o f L i m i t a t i o n m e a n s t h e Meaning: A right acquired by long undisputed possession.

period of limitation prescribed for any suit,

appeal or application by the schedule, and Prescription extinguishes the remedy.

prescribed period means the period of

3. The prescription acquires a substantive right
limitation computed in accordance with the
or extinguishes under certain conditions.
provisions of the Limitation Act.

4. Law of Prescription prescribes a period at the

2. Limitation only bars the remedy. It
does not expiry of which substantive or primary right is

destroy the right. acquired in one party and extinguished in

another party.
3. The law of limitation is adjectival or
procedural
5. The ass er ti on of a ri ght ex ting ui shed
law. by

4.The law of limitation limits the time after which prescription is barred judicially and extra-

judicially both, when a person's right is

a suit, appeal or other proceeding cannot be
extinguished by prescription, he cannot assert
maintained in a court of justice.
it either judicially or extra-judicially. The right
5.Limitation bars the judicial remedy, but it does
i s v irtua ll y tra nsf er r ed to the p er s on who
not bar the extra-judicial remedies claims it by prescription.
i.e
Prescription is positive conferring on a person
remedies available out-side the court
of right to that which he hitherto enjoyed in fact

justice. but not in right.

6.Limitation is negative in its operation Prescription is a substantive law.

depriving

a person of power which he 8. Prescription is based on usage.

possessed

before.

7.Limitation Act is embodied both substantive

and adjective law.

8. Limitation is based on public policy.

DEFINITION: Sub-section (9) of Section 2 defines "Judgment":

"'Judgment' means the statement given by the Judge on the grounds of a
decree or order"

SCOPE: Rules 1 to 5 of Order-20 deal with judgment.

Judgment when pronounced: Rule-1 provides that the Court, after the
case has been heard, shall pronounce judgment in Open Court. Some times,
the judgment may be pronounced after some future day, which the Court
shall fix a day for that purpose, and notice shall be given to the parties
thereon.

Rule-2 provides that a Judge shall pronounce a judgment written but not
pronounced by his predecessor.

ESSENTIAL OF
JUDGMENT
 1.Judgment shall be signed: Rule-3 provides that the jud gment shall
be dated and signed by the judge in open Court at the time of pronouncing
it.
2.Concise statement, etc: Rule-4 provides that the judgment of the
Courts (except a Court of Sma ll Ca use s) sha ll c o nt a in,- - -

(i)concise statement of the case;

(ii)the points for determination;
( i i i ) the decision therein; and
( i v ) t he r ea so ns fo r suc h d e c isio n.
3: Judgment of a Court of Small Causes need not contain m ire than the
points for determination and the decision thereon.

4.Court to state its decision on each issue: Rule-5 prc rides in suits
in which issues have been framed, the Court shall state its finding or decision,
with th1/4. reasons therefor, upon each separate issue, unless the finding
upon any one or more the issues is sufficient for the decision of the suit.
5.Court to inform parties as to where an appeal lies: Rule 5-A was
inserted in the Civil Procedure Code, 1908 by the C.P.C. (Amendment) Act, 1976.
Rule 5-11 provides that the Court shall inform the parties as to where an
appeal lies, if the case is subject to apr gal, and if the parties are not
represented

with their pleaders. If the parties are represented with their pleaders, this Rule
5-A does not applicable.

CAN A JUDGMENT BE MODIFIED OR

RECTIFIED BY THE

SAME JUDGE, WHO

PRONOUNCED IT?

ANSWER: No. The General Rule is that when once the judgment is signed,
dated and pronounced by

a judge in the open Court, it shall not afterwards be altered or added. (Rule-3 of
Order 20).

EXCEPTIONS: There are two exceptions for the above general rule.

Exception-1: Section 152 is the exception to the above general rule.

Section 152 of the C.P.C.
provides that clerical or arithmetical mistake in judgments, decrees or orders or
errors arising therein

from any accidental slip or omission may at any time be corrected by the Court of
its own motion or on

the application of the parties.

Exception-2: The Judge can modify or rectify or amend his own judgment,
when the same case is

presented before him for "Review" (Order-47).

SCOPE: The procedure of 'Decree' Is explained in Order 20 from Rules.6 to

20.

CeNDMONS: In order that a decision of a Court may amount to a decree, the

following five conditions must be satisfied.

1. There must be an adjudication, i.e., a judicial determination of the matter in

dispute.
2. The adjudication must have been given In a suit.
3. The adjudication must have determined the rights of the parties with regard
to all or any of the matters in - controversy in the suit.
4. Such a determination must be a conclusive determination.

6. Determination of a question within Sec. 47 or Sec. 144.

PRELIMINARY DECREE AND FINAL DECREE

PRELIMINARY DECREE: Where an adjudication decides the rights of the parties

with regard to all or any of the matter in controversy in the suit, but does not
completely dispose of the suit, it is a "preliminary decree" A preliminary decree is
passed in those cases, in which the Court has first to adjudicate upon the
rights of the parties and has then to stay its hands for the tie being, until it is in
a position to pass a final decree in the suit. In simple: a preliminary decree is
only a stage in working out of the rights of the parties which are to be finally
adjudicated by a final decree.

EXAMPLES: (a) Suits for possession and mesne profits; (b) Suit for dissolution
of partnership; (c) Suits for sale or mortgaged property; (d) Suits for
redemption of a mortgage; etc.

FINAL DECREE: A decree may be said to be final in two ways,-

 1. when within the prescribed period no appeal is filed against the decree
or the matter has been decided by the highest Court; and
2. when the decree so far as regards the Court passing it , completely
disposes of the suit. A final decree is one which completely disposes of the
suit and finally settles all the questions in controversy between the parties
and nothing further remains to be decided thereafter. EXAMPLE: In a suit for
recovery of money, the amount found due to decree holder is declared and the
manner in which the amount is to be paid has also been laid down, the
decree is a final decree. Partly Preliminary and partly Final Decree: A
decree may be partly preliminary and partly final. (Explanation to Sub-section (2) of
Section 2 Example: In a suit for possession of immovable property with mesne
profits, the Court,--

(a) decrees possession of the property: and

(b) directs and enquiry into the mesne profits.

The former part of the decree is final, while the latter part is only preliminary
because the final decree for mesne profits can be drawn only after enquiry, and
the amount due is ascertained. In such a case. even though the decree is only
one, it is partly preliminary and partly final.

REJECTION OF PLAINT: The rejection of a plaint shall be deemed to be a

decree under certain circumstances.

CONTENTS OF DECREE

Rule 6 provides that the decree shall agree with the judgment. It shall contain the
number of the suit, the names and descriptions of the parties, their registered
addresses, and particulars of the claim, and specify clearly the relief granted or other
determination of the suit. The decree shall also state the amount of costs Incurred in the
suit, and whom or out of what property and in what properties such costs are to be
paid.

Rule 6-A provides that the last paragraph of judgment shall Indicate in precise terms
the reliefs granted by such judgment.

Rule 7 provides that the decree shall bear the date and the day on which the judgment
was pronounced, and when the judge has satisfied himself that the decree has been
drawn up in accordance with the judgment, he shall sign the decree.

Rule 9 provides that decree for recovery of immovable property shall contain a
description of such property sufficient to identify the same, with boundaries, or by
number on record of settlement or survey etc.

DISTINCTION BETWEEN "JUDGEMENT" AND "DECREE"

JUDGEMENT
1. Sub-section (9) of Section 2
d e f i n e s "Judgment".
2 . Rules 1 to 5 of Order-2a:leal with
judgment.
3. Section 33: Judgment and
D e c r e e : T h e Court, after the case has
been heard, shall pronounce judgment,
and on such judgment a d e c r e e
shall follow.
4 . T h e j u d g m e n t contemplates a
stage prior to passing of a decree or
order.
5. There are no such types of judgement
DISTINCTION BETWEEN "DECREE" AND "ORDER"
DECREE
1. A decree is an adjudication which
conclusively determines the rights of the
parties with regard to any or all matters in
controversy
1. 2. A decree can only originate from a
suit, i.e. a proceeding commenced
by plaint.
2. Except in certain suits, where two
decrees (One preliminary and other
final) are passed, in every suit,
there is only one decree.
3. A first appeal always lies from a
decree, unless otherwise expressly
provided. (Sec. 96).
4.W h i l e a p p e a l a b i l i t y i s a r u l e a n d
n o n - appealability is the exception
DECREE
1. Sub-section (2 ) of Se ctio n 2
define s "Decree"
2. Rules 6 to 20 of Order-20 deal
with decree.
3. After the pronouncement of the
judgment, a decree shall follow.
There are five types of decree recognised
by the Code,--
(a)a preliminary decree;
(b)a final decree;
(c)a decree which is party preliminary
and partly final;
(d)an order rejecting a plaint;
determination of a question within Sec. 47 or
Sec. 144.
ORDER
1. An Order, on the other hand, may or
may not finally determine the rights
of the parties.
2. An Order may originate from a suit, as
well as from any other proceeding
commenced by an application.
3. There may be many Orders passed in
a suit.
4. No appeal lies from the Order unless it
is one of the appealable Orders
specified in Sec. 104 and Rule-1 of
Order 43.
5. In the case of an Order, it is just the
reverse.
6. Ii an appealable order, a person does
not have such a right.
 in the rase of a

decree, unless otherwise expressly

provided. (Sec. 96)

6. While appealability is a
rule and non-

appealability is the exception in the

case of a

decree, a person aggrieved has the

right of second appeal.

INTER-PLEADER SUIT

0.1 Explain the forms of pleading and what are infer-Pleader Sults - 7

[Also refer to Topics 'Pleadings Generally" and "Plain(' for first half
question.]

0.2 (a) Define inter-pleader Suit'. Explain the conditIons and procedure
relating to an Inter-pleader sui

(0) Who cannot Ale Inter-pleader suit/ 0.3. Inter-pleader suit

(May. 99 B.U.)(Anl. 97 G.U.X0ct. 95 Kam.U.)

(6N)( 6 pr 2002 O.U.XMay, 2000 T.N.A.U.)(1151/1. Supt. 99 K.U.)(Anl. 96 G.U.)

(3L-301, 194M98. A.U.X3L-301 M-497 A.U.)

ANSWER:
 MEANING: Generally in a suit, there shall be dispute between the plaintiff and
defendant. But in an inter-pleader suit the real dispute is between the
defendants only. The defendants inter-plead. i.e. plead against each other,
instead of pleading against the plaintiff as in an ordinary suit.

EXAMPLE: A took the loan of Rs. 10,000 from two persons B & C. Now A is
ready to pay back the loan amount to B and C. The amount is ready with A. But
between B and C, a dispute arose to take the share of the principal and interest
accrued thereon. There was personal dispute between B and C regarding the
share of interest. They interplead against each other. As soon as they settle their
dispute between them, or it is settled by the Court, A should pay the amount i.e.
principal + interest. Hence the real dispute is between the defendants B and C.
But not between the plaintiff and defendants. This is called "Inter-pleader Suit".
The primary condition for an inter-pleader suit is that there must be more than
two defendants in that suit.

SCOPE: Section 88 explains the provisions about the inter-pleder suit". Order
35 lays down the procedure of the inter-pleader suit. Order 35 contains 6 rules.

Interpleader: Section 88 provides that 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 claimant, such other
person may institute a suit of interpleader against all persons to whom the payment
or delivery shall be made and of obtaining indemnity for himself.

IMPORTANT POINTS:

A The applicant should satisfy the Court that he has no interest in the subject-
matter of the suit, except for the charges and costs, otherwise he is disentitled
to sue. (Rule-1; Order-35)

B. Where the defendants do not claim adversely to one another or where the
plaintiff admitting the title of one of the defendants is willing to pay or deliver the
property to him, the suit is not an inter-pleader suit.
C. The subject-matter may be money, or the property movable or Immovable, and
it is capable of being paid/custody of Court. (Rule-2)
D. There must be two or more defendants claiming the subject-matter of the
dispute.
E. There must be no suit pending in which the rights of the rival claimants can be
properly decided.
F. A plaint in an interpleader suit can be amended by inclusion of new properties
and joinder of new parties.
G. There shall be no collusion between plaintiff and any of the defendants.
(Rule-1: Order-35)
H. Agents and tenants are not entitled to institute inter-pleader suit. (Rule-5/Order-
35)
 I. EXAMPLES:(a) A deposits a box of jewels With B as his agent. C alleges that the
jewels are
wrongfully obtained from him by A, and claims them from B. B cannot institute an inter-
pleader suit against A & C.

(b) A deposits a box of jewels with B as his agent. He then writes to C for the purpose
of making the
jewels a security for debt due from himself to C. A afterwards alleges that C's debt is
satisfied, and C
alleges the contrary. Both claim the jewels from B. B may institute an inter-pleader suit
against A and C

DISTINCTION BETWEEN "TEMPORARY INJUNCTION" AND

"PERPETUAL INJUNCTION"

TEMPORARY INJUNCTION PERPETUAL INJUNCTION

A temporary injunction is to continue
until a
1. A permanent injunction can
only be granted
specified time, or until the further order
b y a d e c r ee ma d e a t t he he ar ing
of the
a nd up o n
Court. It is granted at any the merits of the suit.
period of suit.

Temporary injunction is regulated by 2. Permanent injunction is

Rules 1 regulated by the

to 5 of Order 39 of C.P.C. Specific Relief Act, 1963 in Sections

38 to 42.
3. It is provisional in its
nature. It cannot
3. Per ma ne nt inj unct io n fina lly
conclude the right. det ermines the

rights of the parties and forms

4. I t c a n b e g r a nt ed a t a ny part of the
s t a g e o f t h e s ui t .
5. It may be granted to the decree made at the hearing.
plaintiff on his making
4. It can only be granted at final
out a prima fade case in his stage/hearing of
support.
the suit.
6. A temporary injunction can be
granted at the 5. A perpetual injunction is
granted upon the
discretion of the Court, and
 upon certain merits of the suit.

circumstances of the case.

6. A permanent injunction can
only be granted
7. A temporary injunction is a mere
order upon the merits of the case and at final
hearing
8. The Court, which issues it, can
withdraw it, at of the suit.

any stage, until a final order or

decree is 7. A perpetual injunction is a
decree.
ordered.
The court which issues a permanent
9. A temporary injunction is temporary injunction
nature
cannot withdraw it, after its
as its name itself implies. declaration.

10. Generally a temporary injunction is 9. A perpetual injunction is

granted permanent in

after hearing from the plaintiff nature, final decree as its name itself
side only. implies.

Defendant is not heard. (Perpetual = Permanent).

Sometimes the
10. In granting a perpetual injunction
defendant is also heard. the Court

11. Acquiescence, delay or laches on must hear both the parties of the
the part of suit.

the plaintiff cannot entitle him to 11. The plaintiff may give sufficient
obtain the reasons for

temporary injunction. de la y, la c he s, ac q uie sc e nc e o n

c e r ta i n

circumstances, if it satisfies
 The work "interlocutory" as applied to ruling and orders by the trial Court,
has been variously defined.

I
t refers to all orders, rulings, and decisions made by the trial Court from the
inception of an action to its final determination. It means, not that which
decides the causes, but that which only settles some intervening matters
relating to the cause. An interlocutory order is an order entered pending a
cause, deciding some point or matter essential to

the progress of the suit and collateral to the issues formed by the pleadings
and to a.final decision or

j ud g m en t o n t h e m a t t er in is su e . A n in t e r m e d ia t e o r d e r ha s b e e n
d ef in ed a s o ne ma d e b et w ee n t h e

commencement of an action and the entry of the judgment.

SCOPE: Rules from 6 to 10 of Order-39 of the C.P.C. deal with the

Interlocutory orders.

Interlocutory Order for the Sale of Moveable Property: Rule 6 provides

that if the subject-matter

is movable property, and that property is having the nature of speedy and
natural decay, or which fOr

any other just and sufficient cause, the Court may, on the application of any
concerned party, order the

s a l e o f s u c h m o v ea b l e p r o p e r t y .

Detention, Preservation, Inspection: Rule 7 provides that the Court may,

on the application of the

concerned party, order for the detention, preservation or inspection of the

property.

Notice: Rule 8 provides that the Court may give notice to the party
before it gives the interlocutory

order in the Rules 6 and 7. If the Court thinks that the notice is not
necessary under the circumstances

o f the ca se, it ma y give inter lo cutory ord er without a ny no tice.

 Immediate Possession: Rule 9 provides that the party may be put in
immediate possession of land

the subject-matter of suit upon payment of the revenue or rent due previously to
the sale.

Deposit of Money in Court: Rule 10 provides that if the subject-matter is

money or some other

things capable of delivery, the Court may order the same to be deposited in Court or
delivered to such

another last-named party with or without security.

 POWER OF RECEIVER

Clause (d) of Rule-1 of Order-40 confers the receiver all such powers, as to
bringing and defending suits and for the realization, management,
protection, preservation and improvement of the property, the collection of the
rents and profits thereof, the application and disposal of such rents and
profits, and the execution of documents as the owner himself has, or such
of those powers as the Court thinks fit,

IMPORTANT POINTS:

A. A receiver is a servant of the Court. He acts under the instructions of the

Court. 0

B. He will have all the powers of a proprietor on the property in the suit.
C. A receiver appointed by Court is not ordinarily the representative or the agent of
either party in the administration of the trust property.
D. Receiver is not a judicial officer. The judicial power is not delegated to him.
He is not authorised to conduct any enquiry as to proceedings.
E. A receiver of an estate can maintain a suit to recover the debt due to
deceased person who was the owner of the estate without succession
certificate.
F. A receiver appointed in execution can prosecute a cause of action outside
the jurisdiction of the Court by which he was appointed as Receiver.
G. A receiver appointed to collect outstandings can file suits in that behalf.
H. A receiver cannot sue or be sued without the leave of the Court. "Grant of
leave is the run and refusal the exception."
I. Property in the custody of the receiver cannot be attached without the leave
of the Court.
J. A receiver is entitled to be indemnified for the debts incurred or contracts
entered into by him in the course of the management of the property. The
debts and the contracts must be done by the receiver in good faith for the
benefit and protection of the property for which he is appointed.
 K. REMUNERATION: Rule-2 provides the remuneration shall be fixed by the
Court for the services of the receiver. Remuneration must not exceed the
income of the estate on which the receiver is appointed.

DUTIES OF RECEIVER

Rule-3 of Order 40 deals with the duties of receiver.

Rule-3. Duties.— Every receiver so appointed shall,--

(a) furnishsuch security Of any) as the Court thinks fit, duly to account for
want he shall receive in respect of the property;
(b) submit his accounts at such periods and in the such form as the
Courts directs;
(c) pay the amount due from him as the Court directs; or
(d) be responsible for any loss occasioned to the property by his
wilful default or gross negligence.
Rule-4 provides that the Court is empowered to take action against the
Receiver, if breathes his duties.

LIABILITIES OF RECEIVER

IMPORTANT POINTS:

A. Receiver is personally liable for the breach of contract for sanction of Court has not
been obtained.
B. A receiver cannot delegate his powers to another.
C. Whether receiver is guilty of wilful default or gross negligence, his personal
property can be attached.
D. When a Receiver has to compromise an action in another Court in which he is a
party as such, he can only do so with the sanction and approval of the Court which
appointed him.
E. The receiver has no power to pledge the credit of an individual party.
F. A receiver cannot recover property acquired before his appointment from a
stranger toThe suit nor does his appoin!ment affect any right acquired by third persons,
nor has the right to recover property sold.

A receiver has no power to purchase property over which he is appointed as

receiver.

CONTENTS OF DECREE

Rule 6 provides that the decree shall agree with the judgment. It shall contain
the number of the suit. the names and descriptions of the parties, their
registered addresses, and particulars of the claim, and specify clearly the
 relief granted or other determination of the suit. The decree shall also state the
amount of costs incurred in the suit, and whom or out of what property and in
what properties such costs are to be paid.

Rule 6-A provides that the last paragraph of judgment shall indicate in precise
terms the reliefs granted by such judgment.

Rule 7 provides that the decree shall bear the date and the day on which the
judgment was pronouncr.:,.: and when the judge has satisfied himself that the
decree has been drawn up in accordance wiin judgment. he shall sign the
decree.

Rule 9 provides that decree for recovery of immovable property shall contain a
description or such property sufficient to identify the same, with boundaries,
or by number on record of settlement or survey etc

Rule 10 provides that if the decree is for immovable property, the decree shall
state the amount of money to be paid as an alternative if delivery cannot be had.

Rule 11 provides that the decree may direct the payment by instalments.

Rule 12 provides that where the suit is for the recovery of the immovable property, and for its
mesne
profits the decree must indicate the same. Decrees in particulars cases are
explained from Rule-13

?"119

C
a
n

d
e
c
r
e
e

b
e

a
m
e
n
d
e
 d
?

Answer: No A decree once signed. cannot afterwards be amended for altered.

There are two exceptions for this general rule. They are

Exception-1: Section 152 is the exception, which provides that clerical or arithmetical
mistakes in decrees or judgments or orders or errors arising therein from any accidental
slip or omission may at any time be corrected by the Court either of its own motion or on
the application of the parties.

Exception-2: The decree can be modified or rectified or amended when the same case is
presented before him for "Review". (Order-47).

Can a Court execute a decree, which had passed it, against any person or
properly outside the local limits of its jurisdiction?

Solution: No Before the 2002 Amendment, the position was not clear. This position has
been made crystal clear by the 2002 amendment. Sub-section (4) has been added to
Section 39 by the 2002 amendment, which runs as thus.-

(4) Nothing in this Section shall be deemed to authorise the Court which
passed a decree to execute such decree against any person or property
outside the local limits of its Jurisdiction."

Therefore it is clear that a Court cannot execute a decree, which had passed it, against any
person or properly outside the local limits of its jurisdiction. The Court, having local limits of its
jurisdiction, had to execute the decree against any person or property in its local
jurisdiction, whether the decree was passed by it or bYany other competent Court.

Scope: The procedure of "Decree' is explained in Order 20 from Rules 6 to 20

ONDITIONS: In order that a decision of aCourt may amount to a decree, the

following five conditions lust be satisfied.

1. There must be an adjudication, i e.. a judicial determination of the

matter in dispute

2. T h e a d j u d i c a t i o n m u s t h a v e b e e n g i v e n i n a s u i t

3. The adjudication must have determined the rights of the parties with
regard to all or any of the matters in controversy in the suit.

4. Such a determination must be a conclusive determination

5. Det er m inat ion of a quest ion wit hin Sec. 47 or Sec. 144
 PRELIMINARY DECREE AND FINAL DECREE

PRELIMINARY DECREE: Where an adjudication decides the rights of the

parties with regal - Mt° all or any of the matter in controversy in the suit, but does not
completely dispose of the suit, it is a "preliminary decree". A preliminary decree is
passed in those cases, in which the Court has first to adjudicate upon the rights of
the parties and has then to stay its hands for the tie being. until it is in a position to pass
a final decree in the suit. In simple: a preliminary decree is only a stage in working
out of the rights of the parties which are to be finally adjudicated by a final decree

EXAMPLES: (a) Suits for possession and mesne profits; (b) Suit for dissolution of
partnership. (c) Suits for sale or mortgaged property, (d) Suits for redemption of a
mortgage, etc

FINAL DECREE: A decree may be said to be final in two ways,---

1.when within the prescribed period no appeal is filed against the decree or
the matter has been decided by the highest Court; and
2.when the decree so far as regards the Court passing it , completely
disposes of the suit

A final decree is one which completely disposes of the suit and finally settles all the
questions in controversy between the parties and nothing further remains to be decided
thereafter

EXAMPLE: In a suit for recovery of money, the amount found due to decree holder is declared
and the manner in which the amount is to be paid has also' been laid down, the decree
is a final decree

Partly Preliminary and partly Final Decree: A decree may be partly preliminary and
partly final_
(Explanation to Sub-section (2) of Section 2. Example: In a suit for possession of
immovable property

with mesne profits, the Court,—

 (a)decrees possession of the property; and
(b)directs and enquiry into the mesne profits.

The former part of the decree is final, while the latter part is only preliminary because the
final decree for mesne profits can he drawn only after enquiry, and the amount due is
ascertained In such a case. even though the decree is only one, it is partly preliminary and
partly final

REJECTION OF PLAINT: The rejection of a plaint shall be deemed to be a

decree under certain circumstances.