1

The code of Civil Procedure, 1908

Syllabus: -
1. History of civil procedure in India.
2. Suits, doctrines of sub judice and Res judicata, summons.
3. Pleadings, amendments to pleadings, counter claim, set off.
4. Judgement and decree, power for execution of decree.
5. Suits by or against government.
6. Appeals.
7. Commissions.
8. The Indian limitation Act, 1963.

Long answer questions: -

1. State the scheme and scope of the civil procedure code, 1908. Was there any civil
procedure in India prior to British rule?
A: -
Scheme of the code: -
The civil procedure code contains two parts.
They are
1. The body of the code.
2. The schedule.
1. Body of the code: - the body of the code contains 158 sections divided into 12
parts. It lays down the general principles relating to powers of the court.
2. The schedules: - the schedules contain orders and rules. It provides for the procedure,
method, manner and mode in which the jurisdiction of the courts may be exercised. There are
so many orders which are divided into rules.
At the end of the rules, there are 8 appendices relating to forms/model formats.
A. Pleadings;
B. Process;
C. Discovery, inspection and admission;
D. Decrees;
E. Execution;
F. Supplemental proceedings;
G. Appeal, reference and review;
H. Miscellaneous.
Scope of the code: - the code is exhaustive on matter specifically dealt with by it. It is not
exhaustive on the points not specifically dealt with their in. The legislature is incapable of
contemplating all the possible circumstances which may arise in future litigation and
consequently for providing procedure for them. With regard to those matters, the court has
inherent power to act accordingly to the principles of justice, equity and good conscience. The
code specifically provides that "nothing in this code shall be deemed to limit the inherent
power of the court to make such others as may be necessary for the ends of justice or to
prevent abuse of process of the court".
 2
The code of Civil Procedure, 1908

Civil procedure during British rule: -

Before 1859, there was no uniform codified law relating to procedure of civil Courts in India.
In 1859, uniform code of civil procedure was enacted for the first time. But it did not serve the
purpose well.
In 1877, a second code was enacted replacing the coder 1859.
In 1882, a third code of civil procedure was enacted.
Ultimately, the present code of civil procedure,1908 was passed overshadowing the defects of
the code of 1882.

2. Give a detailed note on “suits of civil nature”.

A: - In order to try a suit, a civil court must have jurisdiction. The first condition which must be
satisfied is that the suit must be of a civil nature. The word ‘civil’ has not been defined in the
code. But according to the dictionary meaning, it pertains to private rights and remedies of a
citizen as distinguished from criminal, political, etc. A suit is of a civil is of a nature if the
principal question therein relates to the determination of a civil right and enforcement thereof.
Section 9 of Code of Civil Procedure, 1908 deals with the topic of 'Courts to try all civil suits
unless barred'.
The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a
civil nature excepting suits of which their cognizance is either expressly or impliedly barred.
Explanations
Explanation I: A suit in which the right to property or to an office is contested is a suit of a civil
nature, notwithstanding that such right may depend entirely on the decision of questions as to
religious rites or ceremonies.
Explanation II: For the purposes of this section, it is immaterial whether or not any fees are
attached to the office referred to in Explanation I or whether or not such office is attached to a
particular place.
A Civil Court can try suits related to civil cases provided the two conditions are satisfied:
 Suit should of civil nature
 Cognizance of such a suit should not have been expressly or impliedly barred (Ex:
Because of the constitution of a special court / tribunal to deal with such matters)
Sanker Naryan Potti v K Sreedevi ,
The Apex Court held “…it is obvious that in all types of civil disputes civil courts have inherent
jurisdiction as per Section 9 of the CPC unless a part of that jurisdiction is carved out from such
jurisdiction, expressly or by necessary implication, by any statutory provision and conferred on
any other tribunal or authority.”

Examples of suits of civil nature

 Suits relating to right to property
 Suits relating to right to worship
 Suits relating to right to share in offering
 3
The code of Civil Procedure, 1908

 Suits for damages for civil wrongs

 Suits for specific relief
 Suits for rent
 Suits for restitution of conjugal rights
 Suits for dissolution of partnership
 Suits for or on accounts
 Suits for damages for breach of contract etc.
Examples of suits not of civil nature
 Suit of declaration of a member of a caste refrained from invitation to a caste dinner
 Suit for expulsion of a member from the caste
 Suits involving purely religious rites or ceremonies
 Suits for upholding mere dignity or honor
 Suits for recovery of voluntary payments of offerings etc.
Conclusion: -
It is well settled that a civil court has inherited power to decide its own jurisdiction.
Hence it is clear that the jurisdiction of the Civil Court does not extend to all matters but might
be limited in certain cases. However it has “inherent” jurisdiction to try all suits of a civil nature
in the absence of any exclusion of the same. Civil court has jurisdiction to examine whether
tribunal and quasi- judicial bodies or statutory authority acted within their jurisdiction. But once
it is found that such authority, e.g., certificate officer had initial jurisdiction, then any erroneous
order by him is not open to collateral attack in a suit.

3. State the object of the rule of Res subjudice. What conditions must be satisfied for the
application of stay of suit and distinguish it from Res judicata.
A: - The word 'Res' means ‘a thing or matter’ and the word subjudice means
'under consideration or pending judicial enquiry'. The expression Res subjudice means 'pending
litigation or pending adjudication by a court'.
Section 10 of the code of civil procedure deals with the doctrine of res subjudice or stay of suits.
When a suit is pending before a court of competent jurisdiction, such suit between the same
parties under the same title shall not be tried by any court in India.
E.g.: -'A' sues 'B' as to title of a land in a court of competent jurisdiction. During the pendency of
the suit, if 'A', again sued 'B' on the same subject matter in another court, such Court has no
power to try except to order for staying of further proceedings.
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.
Conditions: - for the application of section 10, the following conditions are to be satisfied.
1. Two suits: - there must be two suits. One instituted earlier and the other latter. Suit included
a pending appeal also but not an application for leave appeal.
2. Same subject matter: The subject matter of the previous (first) suit and subsequent
(second) suit must be one and the same.
 4
The code of Civil Procedure, 1908

3. Same parties: Parties to previous and subsequent suits must be the same.
4. Pendency before competent court: The previously instituted suit should be pending before
the competent court.
5. Duel Competence: The court, which tried the first suit, should also be competent to try the
second suit.
Effect of contravention: A decree passed in contravention of Section 10 is not a nullity and
cannot be disregarded in execution proceeding.

Example: - 'C' a resident of Calcutta, has an agent 'N' at Madras employed to sell his goods
there. 'N' sued 'C' in Madras for balance of accounts in respect of dealings between him and ‘C’.
During the pendency of the suit in Madras Court, 'C' institutes a suit against 'N' in Calcutta for
an account and for damages caused by 'N's alleged negligence. Here the matter in issue in 'C's
suit is directly and substantially in issue in 'N's suit, both the suits are between the same
parties. Therefore, if the Court at Madras is a Court of competent jurisdiction to grant the
relief claimed in 'C's suit, the Calcutta Court must not proceed with the trial of 'C's suit and the
suit at Madras alone should proceed.
But if 'N' agent at Rangoon instead of Madras and the suit was brought by him in the Rangoon
Court, the Calcutta Court would not be precluded from proceeding with the trial of 'C's suit, the
Rangoon Court being a 'Foreign Court'.
Res judicata: -
Section 11 of the code of civil Procedure, 1908 deals with the doctrine of 'Res Judicata'.
The term 'Res' means," thing". Judicata means, "Already decided". The expression
'Res Judicata' Collectively means ' a thing already decided by a Court of justice'.
According to Section 11 of the Code of Civil Procedure, "no court shall try any suit or issue in
which the subject matter and parties are the same and had already been tried by the court of
competent jurisdiction".
Conditions: - application of the doctrine of res judicata the following conditions to be satisfied,
1. There must be two suits or issues in which subject matter is the same.
2. The previous suit must have been adjudicated by the competent court and the subsequent
suit must be pending.
3. The issue in the previous and subsequent suits must be directly and substantially the same.
4. Parties must be the same in both the suits and litigating under the same title.
5. The court which decided the previous suit must be a court competent to try the subsequent
suit also.
Illustration: 'A' sues 'B' for damages for breach of contract. The suit is dismissed. 'A' against 'B'
for damages for breach of the same contract is barred. 'A's right to claim damages from 'B' for
breach of contract having been decided in the previous suit, it becomes res judicata,
and cannot therefore be tried in the subsequent suit. 'B' cannot be vexed twice over for the
same cause (breach of contract). Moreover, public policy also requires that there should be an
end to litigation and for that reason, the previous decision must be accepted as correct,
 5
The code of Civil Procedure, 1908

otherwise every decision would be challenged on the ground that it was an erroneous decision
and there would be no finality.

4. What is summons? State the modes of service of summons.

A: - When a person wants to institute an action against another seeking some relief, he has to
present or file plaint before the court of competent jurisdiction, If the plaint satisfies all
formalities, it Is admitted by the Court. Thereafter, the Court calls for the appearance of the
defendant and witnesses before the Court on a particular date and time by issuing
the summons.
The word 'summons' has not been defined in the code of civil procedure. It means an urgent
call by the court asking the defendant or witness to attend before the court on a particular date
and time.
Order 5 provides the procedure to summon the defendant.
Order 16 provides the procedure to summon the witness.
Service of summons: - (Rules 9-30)
Summons may be served under the following ways.
A. Personal or direct service (Rules 10-16 & 18).
B. Service by Court (Rule 9).
C. Service by Plaintiff (Rule 9.A) and
D. Substituted Service (Rules 17, 19 & 20).

A. Personal or direct service (Rules 10-16 & 18): -

 as far as possible, the summons should be served to the defendant personally, if it is not
possible, it should be served to his duly authorised agent.
 If there is more than one defendant, each defendant should be served with the
summons.
 If the defendant or his agent cannot be found then the summons should be served to
elder member of his family who is residing with him.
 If the suit is with regard to any immovable property, service of summons can be made
to any agent who is in possession of the property in case the defendant cannot be
found.
B. Service by Court (Rule 9): -
 Summons can also be served by the court of competent jurisdiction through the officer
of the court or through the approved courier service or through the registered post or
any other mode of service.
C. Service by plaintiff (Rule 9.A): -
 The court may also permit service of summons by the plaintiff in addition to service of
summons by the court.
 6
The code of Civil Procedure, 1908

D. Substituted service (Rule 17, 19 & 20): -

 The ordinary method of service may be substituted by some other method. If the court
is satisfied that the defendant is avoiding the service of summons or the summons
cannot be served because of some other reasons, then the court shall order the
summons to be fixed in any conspicuous part of the house of the defendant or place of
business or work.

5. Define pleadings. What are the various forms of pleadings? Explain the procedure for
amendment of pleadings.
A: - pleadings are statements in writing filed in the court by each party to a case, Stating what
his contentious will be at the trial, and giving all such details as his opponent needs to know in
order to prepare his case in answer.
In India there are two main pleadings in a suit.
A. Plaint.
B. Written statement.
A. Plaint: - plaint is the pleading of the plaintiff. It means an accusation or charge. Through this
document the plaintiff initiates a suit in civil Court. Order 7 of the code of civil procedure deals
with plaint.
The main object of the plaint is to state the grounds upon which the assistance of the court is
sought by the plaintiff.
The plaint contains the particulars as stated below.
1. The name of the court in which the suit is brought.
2. The name, description and place of residence of the plaintiff.
3. The name, description place of residence of the defendant.
4. Whether the plaintiff or the defendant is a minor a person of unsound mind, a statement to
that effect.
5. The facts constituting the cause of action and when it arose.
6. The facts showing that the court has jurisdiction.
7. The release which the plaintiff claims.
8. Statement of the value of the subject matter of the suit for the purpose of jurisdiction and of
court fees, so far as the case admits.
Essential parts of the plaint: -
A. Part 1:- the heading and title.
B. Part 2: - the body of the plaint.
C. Part 3: - relief claimed.
D. Part 4: - signature and verification.

B. Written statement: - written statement is the pleading of the defendant. It is prepared in a

concise form to contradict the allegations made against him in the plaint. It can be filled at any
time before first hearing or within such time as the court may permit. If you need any further
particulars, he can apply for the same before filling the written statement. If he cannot make a
 7
The code of Civil Procedure, 1908

proper defence without taking inspection of any particular document, he can request the
plaintiff to give an inspection of it and to permit him to take copies.
Rachappa vs. Gurusiddappa.
The Supreme Court has stated that a written statement is a document in which the defendant
deals with every material fact alleged by the plaintiff in the plaint and also States any new fact
which tells in his favour, adding such legal objections as he wishes to take to the claim.
Essentials of written statement: - A written statement can be divided into three parts.
Part 1: - the heading and title.
Part 2: - the body of the written statement.
Part 3: - signature and verification.

6. Define decree. What are the essential elements of decree? Explain different modes of
execution of a decree.
A: - section 2(2) of the code defines decree as follows.
Decree means the formal expression of an adjudication of a court in disposing of a suit. In
Decree the court conclusively determines the rights of the parties with regard to all or any of
the matters in controversy in the suit. The decree maybe is a preliminary or final.
Essential elements: -to constitute decree the following ingredients are to be satisfied.
A. There must be adjudication.
B. Such adjudication must have been given in a suit.
C. Such adjudication must have determined the rights of the parties with regard to all or any of
the matters in controversy in the suit.
D. Search determination must be a conclusive determination.
E. There must be formal expression of such adjudication.
Modes of execution of decree: -
The code lays down various mode of execution. After the decree-holder files an application for
execution of decree, the executing court can enforce execution.
A decree may be enforced by delivery of any property specified in the decree, by attachment
and sale or by sale without attachment of the property, or by arrest and detention, or by
appointing a receiver, or by effecting partition, or any such manner which the nature of relief
requires.
Arrest and Detention: -
 One of the modes of executing a decree is arrest and detention of the judgment-debtor
in civil imprisonment. Where the decree is for payment of money, it can be executed by
arrest and detention of the judgment-debtor.
 A judgment-debtor may be arrested at any time on any day in the execution of a decree.
After this arrest, he must be brought before the court as soon as practicable.
 For the purpose of making arrest, no dwelling house may be entered after sunset or
before sunrise. Further, no outer door of a dwelling house may be broken open unless
 8
The code of Civil Procedure, 1908

such dwelling house is in the occupancy of the judgment-debtor and he refuses or

prevents access thereto.
 No order of detention of the judgment-debtor shall be made where the decretal
amount does not exceed Rs.2000.
 A decree for money cannot be executed by arrest and detention where the judgment-
debtor is a woman, or a minor, or a legal representative of a deceased judgment-
debtor.
Attachment of Property: -
 A decree may also be executed on the application of the decree-holder by attachment
and sale the only sale without attachment of property. The code recognizes the right of
the decree-holder to attach the property of the judgment debtor in execution
proceeding and lays down the procedure to effect attachment.
 Sections 60 to 64 and Rules 41 to 57 of Order 21 deals with the subject of attachment
of property. The code enumerates properties which are liable to be attached and sold in
execution of a decree. It also specifies properties which are not liable to be attached or
sold. It also prescribes the procedure where the same property is attached in execution
of decrees by more than one court. The code also declares that a private alienation of
property after attachment is void.
Percept
 Section 46– “precept” means a command, an order, a writ or a warrant. A percept is an
order or direction given by court which passed the decree to a court which would be
competent to execute the decree to attach any property belonging to the judgment-
debtor.
 Section 46 provides that court which passed a decree may, upon an application by the
decree-holder, issue a percept to that court within whose jurisdiction the property of
the judgment-debtor is lying to attach any property specified in the percept.
 A percept seeks to prevent alienation of property of the judgment-debtor not located
within the jurisdiction of the court which passed the decree so that interest of the
decree-holder is safeguarded and protected.
 It is the interim attachment of the property which lies outside the jurisdiction of the
court which has passed the order. To protect the interest of the decree holder on his
application will issue percept to the court in whose jurisdiction property is situated to
attach the property of the judgment-debtor. The interim order for attachment is valid
for the period of only 2 months.
Garnishee Order: -
It is the proceeding by which the decree-holder seeks to reach money or property of the
judgment-debtor in the hands of a third party (debtor of judgment-debtor).
Suppose A owes Rs 1000 to B and B owes Rs 1000 to c. By a garnishee order, the court may
require A not to pay money owed by him to B, but instead to pay C, since B owes the said
amount to C, who has obtained the order.
 9
The code of Civil Procedure, 1908

“Garnishee order” is an order passed by a court ordering a garnishee not to pay money to the
judgment-debtor because the latter is indebted to the garnisher.
Sale of the Property
A decree may be executed by attachment and sale or sale without attachment of any
property. Section 65 to 73 and Rules 64 to 94 of Order 21 deals with the subject relating to the
sale of movable and immovable property.
 Power of court: Rule 64-65
Rule 64: a court may sell the property, which he has taken into custody under an
attachment under Order 60.
Rule 65: appointment of officer by the court who will be charged to sell the property.
Officer will be the representative of the court and will sell the property for execution of
decree.[xv]
 Proclamation of sale: Rule 66-67
It is a kind of order or declaration. It operates as a public notice regarding the sale. It’s
said that people can participate in auction and sale. The proclamation can be in writing
or by customary mode.

7. What is temporary injunction? When may the Court pass an order of injunction?
A: - An injunction is a judicial process whereby a party is required to do, or to refrain from
doing, any particular act. It is in the nature of a preventive relief granted to a litigant because
he fears future possible injury. Its main objective is to preserve the subject matter of the suit
and maintain its status quo until the final determination of the suit.
Injunctions are of two kinds
A. Temporary injunction.
B. Permanent injunction.
Temporary injunction: - Rule 1 of order 39 refers to temporary injunctions. Temporary
injunction will continue only for a specified period or until a further order of the court.
It can be granted at any stage of the suit even before the service of summons.
The object of temporary injunction is to maintain status quo till the suit is finally decided.

While granting temporary injunction, the court must follow the following principles,
 The petitioner must have a chance of success in the suit.
 There must occur and irreparable injury which cannot be compensated in damages.

When temporary injunction is prayed for the following conditions are to be proved by affidavit.
 The property is in danger of being wasted by any party or wrongfully sold in execution.
 The defendant threatens or intended to remove his property with a view to defraud his
creditors.
 The defendant is about to commit a breach of contract or any other injury.
 10
The code of Civil Procedure, 1908

The court may by order grant a temporary injunction to restrain such act or make such other
order for the purpose of staying and preventing the wasting, damaging, alienation,
sale, removal or disposition of the property or dispossession of the plaintiff or otherwise
causing an injury to the plaintiff in relation to any property in dispute in the suit, as the court
thinks fit, until the disposition of the suit or until further orders.
In such circumstances The Court may Grant temporary injunction to prevent such act.

8. What is the power of court of execution? State the procedure for execution.
A: - Section 36 to 74 and order 21 of the code of civil procedure lays down the provisions
relating to the execution of decree and order passed by the court.
Execution is a process by which the decree and orders passed by the court are enforced. When
a plaintiff filed a suit against the defendant was claiming some relief. Then the court may pass
an order or a decree in favour of the plaintiff providing some relief against the defendant. If the
defendant does not meet the liability, then the decree or order in favour of the plaintiff
remains unexecuted. Then the plaintiff/decree holder can approach the court for execution of
such decree/order.
Procedure for execution: -
Who may apply for execution: -
Order 21 States the persons who are entitled to apply for execution. They are
1. The decree holder.
2. The transferee (if the decree has been transferred by the decree holder to the
transferee).
3. Is the decree has been passed jointly in favour of more persons than one, then any of
such persons may apply for execution.
4. Legal representatives of the decree holder (if the decree holder is dead).
Application for execution: - the decree holder or the plaintiff has to make an application duly
verified and signed to initiate the execution proceedings.
Contents of application: - an application of execution shall contain the following particulars-
A. The number of the Suit.
B. The name of the parties.
C. The date of the decree.
D. Where any Apple has been preferred for the decree.
Notice: - notice shall be issued to the decree debtor in the following cases.
1. Where the application of execution is made more than one year after the date of the
decree.
2. Where the execution is applied for against the legal representatives of the party to the
decree.
Courts competent to execute: -
Section 38: - A decree may be executed either by the court which passes it or by the court to
which it is sent for execution.
 11
The code of Civil Procedure, 1908

The court to which a decree has been sent for execution is called a transferee court. Transferee
Court is authorised to decide all objections as to executability of the decree. It has no
jurisdiction to question the validity of the decree. It has no power to correct the mistakes in the
decree. It cannot alter the decree. It should only execute the decree.
The executing Court may execute the decree in following ways.
1. By delivery of any property specifically decreed.
2. By attachment and sale or by sale without attachment.
3. By arrest and detention in prison.
4. By appointing a receiver.
5. By any other manner as the court things fit.
You can also write the modes of execution of a decree to lengthen the answer.

9. Discuss the legal provisions to be followed while instituting a suit against government.
A: - Under the principle of delegation of authority government officials discharge variety of
functions on behalf of the government. Similarly according to the principal of vicarious liability
if any wrong is committed by any official of the government the government is liable for that
wrong.
Section 79 to 82 and order 27 of the civil procedure code deals with suits by or against the
government or public officers while discharging their duties in official capacity.
Section 79 runs as follows-
In a suit by or against the government, the authority should be named as
1. "Union of India”, In case of a suit by or against central government, and
2. "The state of_______", in case of a suit by or against a state government.

Jurisdiction: - a suit against the government can only be brought in the court within the local
limits of whose jurisdiction the cause of action arose.

Competent Authority: -
Section 79 of the code lays down the provisions relating to suits by or against the government
authority will be named as
1. Secretary to that government, in case of a suit by or against the central government.
2. Secretary to that government or collector of the district in case of the state government.
3. Chief Secretary to the government in case of the state of Jammu and Kashmir.
4. General Manager in case of railways.

Notice: -
According to section 80 of the code, a notice of two months shall be served to the above stated
Authorities before filing a suit against the government. Otherwise the suit will be dismissed.
The object of such notice is to promote the administration of justice and to secure public good
by avoiding unnecessary litigations so as to provide the government with an opportunity to
settle the claim or dispute within the period 2 months.
 12
The code of Civil Procedure, 1908

However, the notice of two months may be relaxed in case of suits of an urgent and immediate
relief.

Privileges: - section 81 of the code deals with exemption from arrest and personal appearance.
It provides for certain privileges to the person authorised to act on behalf of the government.
1. He shall not be liable to be arrested.
2. His property cannot be attached except in execution of a decree.
3. He is exempted from appearing before the court in person.
Further, the government is not required to deposit any security for a suit filed against the
government official for act done is discharge of his duty or obligations imposed on him by law.
The government also shall be made as a party.

10. What are the general principles for an appeal? How appeal differs from review, revision
and reference.
A: - Orders 41, 43, 44, 45 deals with appeals.
Appeal: - before the trial court, the plaintiff files a suit against the defendant for a cause of
action. The trial court enquiry into the matter and comes to a conclusion and passes a degree in
favour of the plaintiff or in favour of the defendant depending upon the evidences produced
before it. Then the aggrieved party can appeal to higher Court against the decree. In other
words the appeal is a complaint made to higher Court by the aggrieved party.

Memorandum of appeal: - every appeal shall be preferred in the form of memorandum signed
by the appellant or his pleader and presented to the court or to such officer as it appointed in
this behalf.

Right to appeal: - a person cannot file an appeal from a decision as a matter of right. Right of
appeal is not an inherent right. Unless it is clearly provided, an appeal cannot be filed.

Who may appeal: -

A. Any party to the suit adversely affected by the decree or his legal representatives in case he
is dead.
B. Any transferee of the interest of such party.
C. an auction purchaser may appeal from an order in execution setting aside the sale on the
ground of fraud.
No person is entitled to appeal unless he is a party to the suit.

When can an appeal not be allowed: - an appeal shall not be allowed from a decree passed by
the court with the consent of parties.
 13
The code of Civil Procedure, 1908

Kinds of appeals: -
A. Appeals from original decrees.
B. Appeals from appellate decrees.
C. Appeals from orders.
D. Appeals to the Supreme Court.

Reference: - section 113, order 46 of the civil Procedure code lays down the provisions relating
to reference.
Reference means referring a case to the higher Court seeking its opinion in the matters relating
to question of doubt. Reference can be made only when an important question of arises in a
suit.
Conditions for reference-
A. There is a question of law in any suit, appeal or execution from which no appeal lies,
B. There is a reasonable doubt on such question,
C. The court expresses its own opinion on the.

Review: - section 114, order 47 of the civil Procedure code deals with the provisions relating to
review.
Review means reconsideration of a decision given by the same court. it is a judicial re
examination of the decision given by the same court under special circumstances.

Revision: - section 115 of the civil Procedure code deals with the provisions relating to revision.
The word revision means the act of revising especially critical or careful examination with a
view to correcting or improving.
1. A high court may call for the record of any case which has been decided by any of its
subordinate Courts, if the high court thinks that-
 Such Subordinate court has acted without jurisdiction,
 Such subordinate Court has failed to exercise its jurisdiction,
 Such subordinate Court has exercised within the jurisdiction but with material
irregularity.
2. Under this section, the high court shall not reverse or change the decree if an appeal lies to
any higher Court.
3. A revision shall not operate as a stay on the proceedings of the court except such stay is
given by the High Court.

11. What is limitation? Explain the general principles of limitation.

A: -
Limitation: Meaning, Definition and Object: The expression 'Limitation' refers to
stipulated period. It relates to fixation of a particular/prescribed period to institute legal actions
viz. suits, appeals, applications etc., and barring the legal actions beyond the prescribed period
 14
The code of Civil Procedure, 1908

of limitation. According to Section 2(j) of the Limitation Act, 1963, 'period of limitation' means
the period of limitation prescribed by the Schedule for filing any suit, appeal or application by
the Schedule, and 'prescribed period' means the period of limitation computed in accordance
with the provisions of the Limitation Act.
'Justice delayed is justice denied' is a well-known quotation. It means inordinate delay in
disposal of cases by court results in (leads to) denial of justice. Similarly, 'Action delayed is relief
refused'. It means inordinate delay in instituting an action (filing a suit) i.e. beyond the period
of limitation by the party gives no relief and implies refusal of relief.
General principles: -
Section 3: - bar on limitation
The general principle of limitation is that the court should dismiss any suit instituted, appeal
preferred, and application made after the prescribed period of limitation.
So according to section 3, any suit or appeal or application shall be dismissed filed beyond the
period of limitation. However, sections 4 to 24 provide certain exceptions to this general rule.
Section 4: - if the limitation period expires on the day when the court is closed due to holiday or
vacation, the suit can be filed on the day when the court reopens.
Section 5: - any appeal or an application may be admitted beyond the period of limitation if the
appellant satisfies the court that he had sufficient cause for not making the appeal or
application. So section 5 confers discretionary power on the court to waive the delay of suing if
there is a sufficient cause. The reason is that the party could not filed a suit due to the reasons
behind his control. It is the duty of the court to record the reasons for extending time under
this section and it has no power to extend the time under equitable grounds.
Section 6: - it provides for extension of limitation period on the ground of legal disability such
as minority, unsoundness of mind or having been disqualified by any law.
Section 7: -if two or more persons are entitled to file a suit and if any of them is under legal
disability, then the other can made an application without the concurrence of such disabled
person.
Section 8: - riddles with special exceptions.
Section 9: - once the time has started running, subsequent disability will not stop it.
Section 10: - suits against trustees and their representatives.
Section 11: - suits on contracts entered into outside the territories to which the act extends.
Sections 12 to 24: - deals with computation of period of limitation.
Section 18 to 20 deals with acknowledgement.
Sections 25 to 27:- deals with acquisition of ownership by possession.
Sections 28 to 32: - deals with miscellaneous provisions.

12. What are the grounds for permitting the extension of period of limitation? When does the
condonation of delay come to an end?
A: - Limitation: Meaning, Definition and Object: The expression 'Limitation' refers to stipulated
period. It relates to fixation of a particular/prescribed period to institute legal actions viz. suits,
appeals, applications etc., and barring the legal actions beyond the prescribed period of
 15
The code of Civil Procedure, 1908

limitation. According to Section 2(j) of the Limitation Act, 1963, 'period of limitation' means the
period of limitation prescribed by the Schedule for filing any suit, appeal or application by the
Schedule, and 'prescribed period' means the period of limitation computed in accordance with
the provisions of the Limitation Act.
'Justice delayed is justice denied' is a well-known quotation. lt means inordinate delay in
disposal of cases by court results in (leads to) denial of justice. Similarly, 'Action delayed is relief
refused'. It means inordinate delay in instituting an action (filing a suit) i.e. beyond the period of
limitation by the party gives no relief and implies refusal of relief.
Grounds for permitting the extension of period of limitation: - Section 4 and 5 of the limitation
act, 1963 provide certain grounds for permitting the extension of period of limitation.
Section 4: - if the limitation period expires on the day when the court is closed due to holiday or
vacation, the suit can be filed on the day when the court re-opens.
Section 5: - any appeal or an application may be admitted beyond the period of limitation if the
appellant satisfies the court that he had sufficient cause for not making the appeal or
application. So section 5 confers discretionary power on the court to waive the delay of suing if
there is a sufficient cause. The reason is that the party could not filed a suit due to the reasons
behind his control. It is the duty of the court to record the reasons for extending time under
this section and it has no power to extend the time under equitable grounds.

The sufficient cause has to be considered with pragmatism and of course with justice oriented
approach but 'any cause' cannot be construed as 'sufficient cause'. The words 'sufficient
cause' must generally receive a liberal construction so as to advance substantial justice when
no negligence or inaction or want of bona fides is imputable to appellant.
Example: Imprisonment, ilness, heavy rain,strike, bandh, wrong advice by; the advocate or his
clerk are the examples of sufficient cause.
Rajendra Nath Kar vs. Gangadas
In this case, the appellant was wrongly advised as to the legal position and hence he could not
prefer appeal in time. The Supreme Court held that appellant had sufficient cause for not filing
the appeal in time.
While condoning delay, the court takes into consideration two points:
1. The period of limitation cannot be easily extended and respondent's right cannot be easily
taken away.
2. The application for condonation of delay should not be refused if the delay is properly
explained.
State of Himachal Pradesh vs. Daulat Ram.
In this case, the court condons the delay caused due to NGOs strike.

the word sufficient cause used in the provision are wide enough and are adequately elastic to
enable the courts to apply the law in a meaningful manner, which service the ends of justice
and refusing to condone delay can result in a meritorious matter being thrown out at the very
threshold and cause of justice being defeated.
 16
The code of Civil Procedure, 1908

Section 5 shall not apply to the suits and proceedings under order 21 (executions) of the civil
Procedure code.

Short answer questions: -

1. Inter-pleader suit.
A: - An inter pleader suit is a suit in which the real dispute is not between a plaintiff and a
defendant but between the defendants, who interplead against the each other, unlike in an
ordinary suit.
Order 35 of the Code of Civil Procedure, 1908 lays down the procedure for interparty suits, and
Section 88 of the Code provides for the persons entitled to file Inter pleader suits.
Example: 'A' holds certain property X, in which he has no interest. 'B' and 'C' independently
claim the property as their (B's or C's) own. A normally sues 'B' and 'C' to find out court's
decision in favour of a real claimant 'B' or 'C. In such case, the two defendants 'B' and 'C' claim
adversely to each other. Plaintiff A' will remain silent as a spectator. The real dispute lies
between the two defendants, 'B' and 'C'.
Who may file an Inter pleader suit (Section 88): - Section 88 of the Code provides for who is
entitled to file an inter pleader suit against two or more defendants. According to this section,
any person who possesses some property of another, in which he has no interest and it
is claimed by several persons, may file Inter pleader Suit.
Conditions: Following conditions are to be satisfied in respect of an inter pleader suit:

1. The plaintiff must be in lawful possession/custody of another's property.

2. The property may be movable or immovable or money or a debt.
3. The plaintiff must not have any interest in the subject matter (property).
4. The property must be claimed by two or more defendants.
5. The plaintiff is readily prepared to deliver the property to the right climate against court
decision.

2. Affidavit.
A: -
 An affidavit is a willingly made declaration in writing, signed by the deponent (person
making the affidavit) and accompanied by an oath.
 Another way to think of an affidavit is as a sort of written court testimony.
 Where, in a court of law, you are required to place your hand on a Holy Book and swear
that you’re telling the truth and nothing but the truth, similarly on an affidavit, you do
this in writing. You’re under oath, but you’re testimony is on paper. They are important
in a way that the oral submission/evidence/testimony is only admissible before a judge
but an affidavit can be used as an alternative to this.
 The law on affidavits in India is governed by Section 139, Order XIX of the Code of Civil
Procedure and Order XI of the Supreme Court Rules. Judiciary at many instances have
 17
The code of Civil Procedure, 1908

upheld the importance of the veracity of an affidavit by the virtue of the

aforementioned rules and sections.
Contents of an affidavit
Every affidavit containing any statement of facts shall be divided into paragraphs and each
paragraph need to be numbered. It will be more convenient if each paragraph shall be confined
to a distinct portion of the subject.

3. Attachment.
A: - execution against property is to take place by the process of attachment and sale of the
property or sale without attachment of property belonging to the judgement debtor.
Sections 60 to 64 and rules 41 to 57 of order 21 of the civil Procedure Code deals with the
provisions relating to attachment of property.
Section 60: - property liable for attachment and sale in execution of decree- following
properties are liable to attachment and sale in execution of a decree.
They are lands, houses, buildings, goods, Money, banknotes, checks, bill of exchange,
promissory notes, government securities, bonds, other securities for money, shares in a
corporation, movable and immovable property belonging to the judgement debtor.
Section 61: - properties which shall not be liable to attachment or sale in execution of decree-
following properties shall not be attached or sold in the execution of decree.
Necessary wearing Apparel, Cooking vessels, bedding, tools of artisans, implements of
husbandry, houses of agriculturists, wages, salaries, pensions and gratuities, compulsory
deposits, write the future maintenance ect.
Mode of attachment: - section 63, order 21 lay down provisions relating to the procedure for
attachment of different types of movable and immovable property.

4. Foreign judgement
A: - according to section 2 (6) of civil procedure code, foreign judgement means the judgement
of the foreign Court.
Section 13 and 14 of the code also lays down the provisions relating to the foreign judgement.
Section 13: - when foreign judgement not conclusive.
A foreign judgement is said to be conclusive between two parties if it involves the same subject
matter except
A. Where the judgement has not been pronounced by a court of competent jurisdiction.
B. Where it has not been given the merits of the case.
C. Where it appears incorrect view of international law or a refusal to recognise the law of
India.
D. Where it has been obtained by fraud.
E. Where the judgement is opposed to the principles of natural justice.
 18
The code of Civil Procedure, 1908

Section 14: - presumption as to foreign judgement-

The court shall presume, upon production of any document purporting to be a certified copy of
a foreign judgement, that such judgement was pronounced by a court of competent jurisdiction
unless the contrary appears on the record.

5. Mesne profits
A: -
The expression 'Mesne Profits' literally means, "immediate Profits".
Section 2(12) of the code of civil procedure defines mesne profits as "those profits which the
person in wrongful possession of such property actually received or might with ordinary
diligence received therefrom, together with interest on such profits, but shall not include
profits due to improvements made by the person in wrongful possession".
To constitute 'mesne profits', the following conditions are to be satisfied.
1. There must exist some property, movable or immovable.
2. Such property must be in wrongful possession.
3. The person, who is in wrongful possession of such property must have received some profits
out of such property or if he has not actually received such profits, then such profits which he
might with ordinary diligence have received there from.
It is clear from the above that wrongful possession of the property by the defendant is the very
essence of a claim for mesne profits. If a person is deprived of his right to enjoy the property,
then he has two rights
i) To recover the property; and
i) To receive compensation/damages for wrongful dispossession.

6. Effect of acknowledgement of limitation.

A: -The term 'acknowledgement, simply means 'acceptance of a receipt or admitting a liability".
In Limitation Act, acknowledgement lengthens the period of limitation. The period of
limitation starts fresh from the date of the acknowledgement.
Section 18 to 20 of the Limitation Act, deal with the effect of acknowledgement.
Acknowledgement may be made by way of part payment or by mere written undertaking. If a
debtor acknowledges a liability, the period of limitation restarts from the date of
the acknowledgement.
Example: 'A' borrows Rs.5,000/- from 'B' and executes a promissory note on 1st August, 1994.
The period of limitation starts on 1st August 1994 and expires after 3 years i.e. on 31st July
1997. If 'A' acknowledges the liability on or before the expiry date, by way of a
written undertaking or a part payment, fresh period of limitation for three years re starts (re-
commences) from the date of the acknowledgement.
Section 18: - effect of acknowledgement in writing-
An acknowledgement to be effective it must be made before the expiry of the period of
limitation.
 19
The code of Civil Procedure, 1908

7. Commissions
A: - Sections 75 to 78 deal with Commissions. Commission means a person or body of persons
appointed by the Court to perform certain specific duties. Appointment of commission is at the
discretion of the Courts. Section 75 provides that the Court may issue a commissíon
a) To examine any person.
b) To make local investigations.
c) To examine or adjust accounts.
d) To make partition of immovable property.
e) To hold scientific, technical or expert investigations.
f) To conduct sale of property which is of perishable nature.
g) To perform any ministerial act.
Powers of Commissioner: - Rule 16 enacts the powers of the Commissioners.
Any Commissioner appointed under the Order 26 has the following powers:
a) The Commissioner examines the witness or witnesses referred to him.
b) He shall call for and examine the documents and other relevant things to subject of inquiry,
which is involved in the suit.
c) He shall enter at any reasonable time upon or into any land or building mentioned in the
order.

8. Counter claim.
A: -Rules 6.A to 6.G of Order 8 after civil procedure code deals with counter claim by
defendant. It is a cross action by the defendant.
Meaning: Counter-claim may be defined as "a claim made by the defendant in a suit against the
plaintiff". It is a claim independent of and separable from the plaintiffs claim, which can be
enforced by a cross action. It is a cause of action in favour of the defendant against the plaintiff.
When the defendant has an action against the plaintiff which he can bring in a separate suit,
then he can file the counter claim in the existing suit in his written statement giving the facts of
which is based.
The object of counter claim is to reduce the pendency of cases and the cause of action and
cross claims of similar nature. It reduces the expenditure, time and convenience of the parties
and courts.

9. Set off
A: - Rule 6 of order 8 deals with set off.
It is a cross claim which partly offsets the original claim. it is an extension of debts of which two
persons are reciprocally debtors to one another by the credits of which they are reciprocally
creditors to one another. Where there are mutual debts between the plaintiff and the
defendant, one debt may be settled against the other.
Example: - ’A’ entered into a contract with 'B' by which 'A' shall deliver 100 bales of cotton to
'B, 'A' stopped supply after giving 25 bales. 'B' refuses to pay for the 25 bales of cotton already
 20
The code of Civil Procedure, 1908

supplied. If 'A' files a suit for recovery of price for 25 bales, 'B' can claim damages for violating
contract from 'A' and claim to set-off it from the price. It is a set-off.