WRITTEN STATEMENT

It is particularly answer given by defendant to the summons to reply to court

Can a third person files a written statement for another person

It is not sanctioned by the civil procedure code

ORDER 8 Rule 1 to 10

SETOFF
It is claim for debt against the plaintiff.
It is a cross action by the defendant against the plaintiff
Defendant should have a cause of action against the plaintiff

PARTICULARS OF setoff rule 6

Under rule 6 the suit for recovery of money by the defendant claiming the setoff against
the plaintiff must be of a certain amount legally recoverable from the plaintiff. The
amount which is recoverable must not exceed the pecuniary limits of the jurisdiction of
the court

POINTS OF SETOFF
1. Suit must be for recovery of money the suit for recovery of any other property
shall not be liable for setoff
2. The sum of money must be ascertain
3. Amount must be legally recoverable by the defendant from the plaintiff
4. It arises out of the same transaction
5. A plea of setoff cannot be raised without filing a written statement

The time bar debt is not legally recoverable and therefore cannot be setoff

COUNTERCLAIM
POINTS
1. Counterclaim can be made in any suit
2. Amount need not be ascertain
3. It may not arise out of the same transaction
4. Amount must be legally recoverable at the time of counterclaim
5. Counterclaim cannot be filed by amending written statement
6. The Supreme Court has held that write to counterclaim is a statutory right
7. The counterclaim of defendant will be treated as a plaint and a plaintiff has a right
to file a written statement in answer of the counterclaim of the defendant
8. Even if the suit of the plaintiff is discontinued, dismiss, withdrawn the
counterclaim will be continued and decided on merits
Counterclaim may be defined as a claim independent and separable from the plaintiffs
plaint and which can be enforced by a cross action. Counterclaim is broader than setoff
It is the cause of action in the favour of the defendant against the plaintiff

Appearance and Non Appearance of parties and their consequences

Order 9
Party who can appear in court
1. Plaintiff
2. Defendant
3. Advocate
4. Witnesses

What on the fixed date plaintiff does not appear and even defendant too effect??
Suit will be dismissed reason non appearance of party
Order 9

Plaintiff appear but defendant doesn’t appear

N number of scenarios
Ex Parte order
Matter will be adjourned
Court may direct the plaintiff to serve the summons or reissue the summons
Defendant is absent due to non service of summons
In this it is fault of plaintiff in that cases suit will be dismissed

Defendant appear and plaintiff doesn’t

Suit will dismissed

Setting aside
In this the new application has been formed
Is called as “CIVIL MISCELLANEOUS APPLICATION”

Case law
GS ramachandran v/s MM rajyadhaksha 1984 MHLJ 247

Vishwanath v/s Mahadev 1963 MHLJ 646

PLEADING

Interim order exhibit 5

EXECUTION OF A DECREE ORDER 21

A very important topic for the examination and real life

Declarative decree in this there is no need of execution

Modes of execution
1. Delivery of property
2. Attachment and sell of property
3. Arrest and Detention
4. Appointment of Receiver
5. Partition
6. Cross decree and cross claims
7. Payment of money
8. Specific Performance of Contract (employment contract) (injunction)
9. Restitution of conjugal rights
10. Attachment of rents and properties

1. Delivery off any property

a. Movable property
b. Immovable property

a. Movable property :- seizure and deliver another is detention of the judgement

debtor by attachment and detention both
b. Immovable property rule 35 and 36 :- possession of judgment debtor bound the
follow decree main thing is that lock and key and other is removing judgement
debtor and taking away all the properties document removing powers is under
executive magistrate

2. Attachment and sale of property

3.Appointment of Receiver govt cases collector or collector appoint the officers

4. Partition
In case of partition the collector is appointed only for the govt purpose for the govt
benefit and for the the private basis collector is not

5. Cross Decree
If the same amount is given by both the parties then cancellation and satisfaction of
decree
6. Payment of Money
a. By depositing amount in court

7. Specific Performance of Contract

8. Injunction

9. Restitution of Conjugal Right \

Saroj rani v/s sudarshan kumar chada AIR 1984 SC 1562

APPEAL
WHEN WE APPEAL
When there is question of law and
When there is question of law

Appeal order 41
Every decree pass by lower court can be challenged in appeal court unless until
Appeal can also for ex parte decree
In small cause court no appeal if amount not exceeding 10000Rs then it will not go in
appeal never (first was RS 3000 but now amended and now Rs 10000)
But in case of question law then the appeal is available

(NCERT 1 lakhs first and now 1 crore )

CONDITIONS FOR APPEAL

Two conditions only
a. Aggrieved party (the party against who has been order or decree has been
passed)
b. The subject matter of appeal finally decided then you can go for appeal

APPEAL WITHIN THE HIGH COURT

When there is an single judge bench then it can appeal to divisional bench then they
might be a more than that even 13 judge bench (divisional bench to constitutional
bench(3 judges bench and 5 judges bench) but sec 96 does not said about the appeal
within the high court)

PROCEDURE FOR APPEAL

Memorandum of appeal (attach certified copies only on that order or judgment which
getting challenged everything judicial claus, prayer)

SPECIFIC APPEAL
First is appea is record in the court
But first in notice to the respondent as well as to the lower court even an appeal court
can send the notice to the lower court
Deciding appeal in 60 days from the date of filing of memorandum of appeal
Publication both appellate and respondent response to it

Appearance and Non Appearance of party in appeal court

On that date appellant does not appear ??
What if the respondent is not available ?
The court will go to ex parte will start

Same as trial court no change

ACTUAL INGREDIENTS FOR WHAT ARE THE REQUIREMENT OF APPEAL

Order 46
Reference
It just give a reference for any cases nothing more than that in CPC for reference

Personal law is typically governed by the customs and tradition

There must be reasonable doubt as to the question of law for the appeal
Even though the case is pending in lower court then high court can take of this matter
sue moto also for the question of law

If the judgment passed by lower court while appeal or reference made to high court still
the lower court passed the judgment then the judgment is valid but still not executed
Order 46 rule 1,2,3

Review Order 47 Sec 114

When there is no appeal is allowed then there you can go for review
Can we add new evidence in review or for new evidence for review

Maintainability of Review
1. If there is no appeal lies then
2. If there is appeal lies but not preferred
3. Decision from reference from small cause court
4. Discovery of new evidence
5. An error appear in record
6. Or any other sufficient reason

Any Limitation period available for review

The SC given for review is 30 days from the judgement
REVISION
Section 115
Meaning is go carefully or to look over judgment or order
It is more upon correction or approach

The high court may call record of any case

1. High court itself can call for record (there is high court committee come to lower
court and see all the records of cases filed there in lower court it’s come in june
and july) even high court can sue moto take certain matters when the
subordinate court has exercise the jurisdiction not vested in it by law
2. other is that they failed to exercise there jurisdiction then the high court can take
the because the high court have jurisdiction over the state
3. When material is illegal or materiality is illegal or illegally exercise jurisdiction