Caveat

X is the owner of the land and he wants to build a house on the same land, for which he even
got permission from the municipality. However, Mr. Y, a neighbour of X, is not happy with
his decision and claims that a part of the land where the construction is going to be done
belongs to him. Now Mr. X being a wise man anticipates that Y may file an application. Thus
he files a caveat against Y in a competent suit, praying the court to give him a notice when
any such application is made by Y. Lodging of such caveat made X entitled to be informed
by the court as well as Mr. Y about any application that is made or is about to be made and
any order passed by the court without giving such a notice would be void.

Meaning of Caveat

The caveat in Latin means “let a person be aware” and in law, it may be understood as a
notice given asking not to act in a certain manner without informing the person who gave
such a notice. Under the Civil Procedure Court, the provision of caveat is dealt with
in Section 148A.

When to lodge a Caveat?

According to Section 148A, when people apprehend that some case against them is filed or is
about to be filed in any court of law in any manner, they have a right to lodge a caveat. The
Caveat may be lodged in the form of a petition under the following circumstances:

1. During an ongoing suit or litigation and in that the application is already been
made or is expected to be made;

2. The suit is about to be instituted and in that suit, an application is expected to be

made.
Thus, firstly it is always about an application in a suit of the proceeding and secondly that suit
or proceeding can be in the present which is already instituted or it can be in the future where
a suit is not instituted yet but the same is expected. In all such situations the right to lodge a
caveat arises.

Who may lodge a caveat?

Section 148A further provides that a caveat may be filed by any person, whether a party to
the suit or not, as long as the person filing the caveat has the right to appear before the court
in regard to the suit in question. Thus caveat can be filed by a third party as well, if they in
any manner are connected to the suit in question.

Where can a caveat be lodged?

As and when the caveator anticipates some legal proceedings to be filed against him in the
near future, he can file a petition for a caveat in any Civil Court of original jurisdiction,
Appellate Court, High Court as well as Supreme Court. Civil Courts include Courts of Small
Causes, Tribunals, Forums, and Commissions.

How to file a caveat?

A caveat under Section 148A shall be signed by the caveator or his advocate. Where the
caveator is represented by an advocate, it should be accompanied by his Vakalatnama. The
caveat presented shall be registered in a caveat register maintained by the courts in the form
of a petition or any other form that may be prescribed.

What does a caveat contain?

A caveat or a notice given to the court that certain actions may not be taken without
informing the caveator should contain the following information:

1. Name of the caveator;

2. Address of the caveator where the notice would be sent;

3. The name of the court where such caveat is filed;

4. The number of the suit and the number of the appeal if applicable;

5. Brief details about suit or appeal likely to be filed;

6. Name of the probable plaintiffs or appellants and the respondents.

Notice

If subsequent to the filing of a caveat, any application is made in any suit or legal proceeding,
the court is required to give notice about such an application to the caveator. When a notice
has been served on the applicant, the applicant at the expense of the caveator is required to
provide the caveator with a copy of the application made by him along with any document
that may have been submitted with the application. If the court or applicant ignores the caveat
and does not inform the caveator, the decree or judgment passed becomes null and void

Limitation of time

As provided by the section in clause 5, the caveat stays in force for a period of 90 days. If
within these 90 days an application is filed, then the court, as well as the applicant, has to
give notice to the caveator. However, if no caveat is filed within these 90 days, then no one
has the duty to inform the caveator, i.e. if the application is filed after the expiration of such
period the caveat stands null and void. If the caveator still wants to be informed then a fresh
caveat needs to be lodged for the next 90 days

Mesne profits under the Code of Civil Procedure, 1908.

Introduction

The underlying principle based on which the Code of Civil Procedure, 1908 functions is ubi
jus ibi remedium that signifies where there is a right, there is a remedy. The concept of mesne
profits has been developed from this principle because it is the law of nature to provide the
right to compensation where there has been an infringement or breach of a legal right. Before
delving into the concept of mesne profit, it is necessary to discuss the meaning of the terms
“ownership” “possession”.

PROFIT

1. Calculation of Mesne Profit: It ought to be granted based on real benefits which the
transgressor got or which he may have been gotten with normal diligence.
  Wrongful Possession: It implies that the individual who has no option to ownership as
against the gathering asserting it is in improper belonging as against that Gathering
for specific purposes including mesne benefits yet not illegitimate for all reasons.
 Interest on mesne profit: It remembers the option to intrigue for the benefits that
returns on the hypothesis that the individual. in unjust belonging appropriating pay
from the property himself gets the advantages of the interest of such pay.
 Rate of interest: To be permitted on the mesne profit in optional as there is no
inquiries of any authoritative rate or a specific rate fixed by rule.
 Suit for recovery of mesne profit: Plaint obviously showing that offended party not
just petitioned God for mesne benefits for a period up to the choice of case. Court
beneath was legitimized in permitting mesne benefits forward-thinking of choice of
the case with a request to the offended party to offer court Expense in appreciation of
pay granted to him the past time of three years conflict that court couldn’t grant
mesne benefits past time of 3 years was repulsed in conditions.
 Mesne Profit doesn’t impact pecuniary jurisdiction: The worth of a suit for the
recuperation of ownership and mesne benefits is the worth of the unfaltering property
in addition to mesne benefit modern of suit mesne benefit after suit don’t from the
lease of the reason for activity even there be a supplication in the plaint for mesne
benefits after suit.
Mesne Profits- against whom means profits can be ordered?
Generally, Court can award Mesne Profits against the following persons under purview
of Section 2(12) of the Code of Civil Procedure,1908.
1. Tenants in a suit for recovery of possession.  (Anderson wright Vs. Amar Nath Roy)
2.  Persons against whom a decree for possession of the immovableproperty was passed.
(Gopal Krishna Pillai Vs. Meenakshi Ayal)
3.   Trespass (Sita Ram Lakshmanji Vs. Dipnarain Mandal)
4. Mortgagors in possession of mortgaged property against whom a decree for
foreclosure was passed. (Shiv Kumar Sharma Vs. Santhosh Kumari)
5. Mortgagors in possession of the property after a decree for redemption was
passed. (Prabhakaran Vs M. Azhagiri Pillai).
What are the Mesne Profits Deductions?
The Court must approve the following deductions from the gross profit of the defendant in
possession of the property:
1. The fee for collecting rent and other fees.

2. Crop cultivation and harvesting expenses, and 

3. Public charges derived from the property’s maintenance, such as government revenue.

EXECUTION

The word 'execution' is not defined in the C.P.C. It simply means the process for enforcing
the decree that is passed in favour of the decree holder.

As per Rule 2 (e) of Civil Rules of Practice “Execution Petition” means the Petition to the
court for the execution of any decree or order.

As per Rule 2 (f) of Civil Rules of Practice “Execution application” means an application to
the court made in a pending Execution Petition and includes an application for transfer, of a
decree.

Execution of a decree or an order or implementation or enforcement of such decree or orders,

these are important steps since they are concerned with realization of the fruits of the decree
or the orders as the case may be. Quite often, it is said that the difficulty for the decree-holder
would commence after obtaining decree since there would be several obstacles, the
procedural technicalities, which may come in the way, several obstructions may be created
for realization of the fruits of the decrees or the orders.

Meaning, Nature and Scope

The term “execution” is not defined in the CPC. The term “execution” means implementing
or enforcing or giving effect to an order or a  judgment passed by the court of justice. In
simple words “execution” means the process of enforcing or giving effect to the decree or
judgment of the court, by compelling the judgment-debtor to carry out the mandate of the
decree or order and enable the decree-holder to recover the thing granted to him by
judgment. 

Illustration:
X files a suit against Y for Rs 20,000 and obtains a decree against him. Here X would be
called the decree-holder,  Y is the judgment-debtor, and the amount of Rs 20,000 is the
judgment- debt. Y is bound to pay Rs 20,000 to X, as the decree is passed against him.
Suppose Y refuses to pay the decretal amount to X, X can recover the said amount by
execution through the judicial process. The principles governing the execution of a decree or
order are given in Section 36 to Section 74 (substantive law) and Order 21 of the code which
provides for procedural law.  

Execution proceedings under CrPC

In Ghan Shyam Das v. Anant Kumar Sinha, the Supreme Court dealt with the provisions of
the code relating to the execution of orders and decree and stated that the Code contains
elaborate provisions which deal with all questions regarding executability of a decree in all
aspects. 

The Court further observed that numerous provisions of Order 21 take care of various
situations providing effective remedies to judgment-debtors, decree-holders and claimant
objectors. In the cases, where provisions are not capable of giving relief inadequate measures
and appropriate time, to an aggrieved party, then filing a regular suit in the civil court is the
solution. 

The Court further explained that the judicial quality of the remedy under Civil Procedure
Code is considered to be superior as compared to other statutes therefore, the judges are
expected to do better as they are entrusted with the administration of justice.

Courts which can execute decrees

Section 38 of the Code states that a decree can be executed either by the Court of the first
instance or by the Court to which it has been sent for execution.

Section 37 of the Code further establishes the scope of the expression “court which passed a
decree” with the object of enabling a decree-holder to recover the fruits of the decree. The
courts which fall within the said expression are as follows:

1. The court of the first instance;

 2. The court which actually passed the decree in case of appellate decrees;

3. The court which has jurisdiction to try the suit at the time of execution, if the court
of first instance ceased to exist;

4. The court which at the time of execution had jurisdiction to try the suit, if the court
of first instance has ceased to have jurisdiction to execute the decree.
Explanation to the section clarifies that the court of first instance shall have jurisdiction to
execute a decree even in the case of any area being transferred from the jurisdiction of the
court of first instance to the jurisdiction of any other court. In such cases, the court to the
jurisdiction of which such area has been transferred will also have jurisdiction to execute the
decree, provided that the said court had jurisdiction to try the said suit when the application
for execution was made.

Transfer of decree for execution

Section 39 provides that when a decree-holder makes an application to the court of the first
instance to send the decree for execution to another court, the court of first instance may do
the same if any of the following grounds exist:

1. if the judgment-debtor carries on business, or resides or personally works for gain,

within the jurisdiction of such Court;

2. if the property of judgment-debtor does not come under the jurisdiction of the
Court of the first instance but it comes under the local limits of the jurisdiction of
such Court;

3. if the decree directs delivery or sale of immovable property situated outside the
jurisdiction of the Court which passed the same;

4. if the Court which had passed the decree considers that the decree should be
executed by another court, but it shall record the reasons in writing for doing the
same.
Section 39(2) states that the Court of the first instance may suo motu send it for execution to
any subordinate Court of competent jurisdiction.
The Section further states that if the execution of the decree is against a person or property
outside the territorial jurisdiction of the court passing the decree, then such Court has no
power to execute the decree.

In Mahadeo Prasad Singh v. Ram Lochan, the Supreme court held that the provisions of
Section 39 are not mandatory because the court will have discretion in the matter which can
be exercised by it, judicially. The decree-holder would not have any vested or substantive
right to get the decree transferred to another court.

Execution of foreign decrees in India

The Code lays down the procedure for execution of foreign judgments and decrees in India.
While enforcing a foreign judgment or decree in India it should be ensured that the judgment
or decree is a conclusive one, given on the merits of the case and by a court having competent
jurisdiction.

What is a foreign judgment and a foreign decree?

Section 2 (6) of the CPC defines a foreign judgment as a judgment of a foreign court. As
per section 2(5) of CPC, a foreign court implies a court which is situated outside India and
which is not established or continued by the authority of the Central Government.

A foreign decree is defined in Explanation II to section 44A of the CPC as a decree or

judgment of such court and which directs that a sum of money is payable. However, such
sum of money shall not be a sum payable in respect of taxes or other charges of a like nature
or in respect of any penalty or fine. It should not include an arbitral award, even if such an
award is enforceable as a decree or judgment.

Foreign judgment or decree needs to be conclusive

A foreign decree or judgment needs to be conclusive in nature. Section 13 of the CPC lays
down the test for conclusiveness of a foreign judgment or decree, which says that a foreign
judgment would be conclusive in all cases except the following :

 When a court of competent jurisdiction has not pronounced it;

  When it has not been pronounced on the merits of the case;

 When it has been based on a wrong view of international law or a refusal to

recognize the law of India in cases in which such law is applicable;

 When the proceedings carried out while obtaining the judgment are opposed to
natural justice;

 When such judgment has been obtained by fraud;

 When it sustains a claim that had been based on a breach of any law in force in
India.
Thus, a foreign judgement or decree shall pass the seven tests mentioned above. Otherwise,
such foreign judgment or decree cannot be enforced in India as such judgment or decree will
not be regarded as conclusive if it fails any of these tests.

Mode of enforcement of a foreign judgment or decree

Two ways in which a decree or foreign judgment can be enforced in India are as follows:

 Where the decree or judgment has been given by a court in a reciprocating

territory;

 Where decree or judgment has been given by a court in a non-reciprocating

territory.

1. Execution of foreign decree of a reciprocating territory in India

According to Section 44A of the CPC, a decree of any superior court of a reciprocating
territory shall be executed in India as that has been passed by the district court.

“Reciprocating territory“ signifies, any territory or country outside India which the Central
Government has declared to be a reciprocating territory, by notification in the Official
Gazette, and “superior courts“, with reference to any reciprocating territory, means such
courts that would be specified in the said notification.

Therefore, a judgment which has been pronounced by a court of a reciprocating territory can
be enforced in India as an Indian decree by filing an execution application. A certified copy
of a decree of any superior court of a reciprocating territory should be filed in a District
Court, once this is done, the decree shall be executed as if it had been passed by the District
Court of India and the provisions governing execution which are laid down in Order 21 of the
CPC will be applicable to the decree.

While filing the execution application the original certified copy of the decree shall be filed
along with a certificate from the superior court stating the extent to which the decree has been
satisfied or adjusted.

2. Execution in case of decrees from non-reciprocating territories

In the cases where a judgment or decree has not been pronounced by a court of a
reciprocating territory, it can be executed only when a fresh suit on that foreign judgment is
filed in a court of  India which has competent jurisdiction to entertain the same.

The Bombay High Court, in Marine Geotechnics LLC vs. Coastal Marine Construction &
Engineering Ltd., observed that when a decree has been pronounced by a court of a non-
reciprocating foreign territory, it can not be executed unless a fresh suit has been filed by the
decree-holder on that foreign decree or on the original cause of action, or both. The suit must
be filed within a period of three years from the date of the judgment or decree. The person
seeking execution shall show that the foreign decree passes the tests of Section 13. 

The court further observed that Section 13 of the Code provides substantive law and Section
44A of the Code is an enabling provision and it enables a decree-holder to put a decree
obtained from a court of a reciprocating territory into execution. Section 13 clearly expresses
the principles of private international law, that a court will not enforce a foreign judgment of
a competent court. 

Execution of Indian decrees in a foreign territory

Section 45 of the Code is related to the execution of decrees outside the territory of India. It
states that a Court has the power to send a decree for execution to a Court outside India which
has been established by the Central Government’s authority. It should be ensured that the
State has, by notification in the Official Gazette, declared the said section can apply to such
Court. A plain reading of the aforesaid  provisionyields the following features:

1. The decree which has to be executed should be of an Indian Court and it should be
for execution in a foreign territory.

2. The Central Government should have established the transferee court in such
foreign territory.

3. The State Government should have declared by notification in the Official Gazette
that this section will apply to the said foreign Court.
The provision, therefore, prescribes the prerequisite conditions for the execution of an Indian
decree outside the country. Therefore, in the absence of either of the aforesaid conditions in
Section 45, an Indian Court has no jurisdiction to send its decree for execution to a Court not
situated in India.

Property of a person to be attached

Nature, Scope and Objective

Attachment of property is one of the modes of execution of a decree in a civil suit. In a

decree, the court may require a person(defendant) to pay an amount to the decree-holder. In
cases where the defendant fails to pay the required sum, the court can, in the execution of its
decree, attach the movable and immovable property of the defendant and recover the amount
which is due by the disposal of these assets. However, there are some assets which cannot be
attached to recover the due amount.
This article goes through various modes adopted by courts in executing a decree in a suit with
special emphasis on “Attachment of property”. It also examines the various provisions
relating to attachment in the Code.

Property which can be attached

Attachment is a legal term which refers to the action of seizing property in anticipation of a
favourable ruling for a plaintiff who claims to owed money by the defendant. Decree Holder
is Dominus litis(person to whom the suit belongs) and he h.as the right to choose the mode of
execution from those available to him. Neither the Court nor the Judgement debtor can force
or persuade him to choose a particular mode of execution. This can be referred from the
case V. Dharmavenamma v. C. Subrahmanyam Mandadi.

In the process of attachment, the court at the request of the decree-holder designates specific
property owned by the debtor to be transferred to the creditor or sold for the benefit of the
creditor. Sections 60 to Section 64 and Rules 41-57 of Order 21 of CPC 1908, deals with the
matter of attachment of property.

Section 60 CPC,1908 describes the property which can and cannot be attached while
execution. Several types of property are liable for attachment and sale in execution of a
decree like lands, houses or other buildings, goods, money, banknotes, checks, bills of
exchange, hundis, government securities, bonds or other securities etc., and things on which
he has a disposing power. There is express mention of particulars which shall not be liable for
attachment or sale. The decree as mentioned in this section is only a money decree and it does
not include a mortgage decree. Therefore, it is important that the property not only belongs to
the judgement-debtor but also he has disposing power on it.

In M. Balarajan vs. M. Narasamma, it was held that the said house of the JUdgement-debtor
was liable to be sold for execution of the decree as his contention of agricultural produce was
declined. 

Section 61 grants partial exemption to agricultural produce- The state Government may by
general or special order published in the Official Gazette declare any piece of agricultural
land for the purpose until next harvest season for the due cultivation of land and support of
the Judgement-debtor and his family, exempt that property from being attached or sold in
execution of the decree.

Section 62 talks about seizure of property in case of dwelling house. No person executing
under the code will enter the premises of a dwelling house after sunset and before sunrise. No
door of such dwelling house can be broken without the knowledge of the Judgement-debtor.
Where a woman resides in such house and she is not allowed to appear in public. The person
executing has to give her a notice to be at liberty to withdraw and also reasonable time to do
the same. Once she withdraws he has the power to enter the premises.

Section 63 says that where the property attached in execution of decree is going on in several
courts then the final decision of the court of higher grade prevails and where the court are at
same grades then the court where the case of attachment came first will hold a higher value.

Property which cannot be attached

Some kind of property which cannot be attached and sold in execution of a decree is
expressly mentioned in Section 60 of the Code of Civil Procedure. Particulars like wearing
apparel, cooking vessels, beds, tools of artisans, books of accounts, any right of personal
service, wife and children, stipends and gratuities allowed to pensioners of the
Government etc. and many more.

Modes of attachment

Rule 43 to Rule 54 of Order 21 lays down a proper procedure for attachment for movable and
immovable property.

Order XXI Rule 54- The modes of procedure for attachment of immovable property initiates
or starts with issuing a prohibitory order to the debtor and the public generally, this order will
prevent the judgment-debtor from transferring the property to himself or anyone else or
charging it. The judgment debtor shall attend the court on the date decided for deciding the
terms of the proclamation of sale. Normally for immovable property, two copies of
prohibitory orders are sufficient. But where the land is such that the revenue accrued from it
is paid to the government, three copies of prohibitory order is prepared. In order to make the
attachment lawful, the particulars given in the schedule attached with the order should be
matched to be exactly the same with the details given in the schedules of the property given
in warrant.

Furthermore, the warrant and the prohibitory orders along with the copies shall be submitted
to the Nazir. The Nazir will then endorse the warrant and return it within a defined time
before the Court. Where any person delegated by the Nazir completes the above-mentioned
work of attachment of property, a separate document stating how the day and hour at which
he did such an act has to be properly attached.

Warrant of Attachment of Land.Drum Beating charges- Any customary or usual practice will
be carried out for proclamation of the order, and the copy of it will be affixed on a
conspicuous part of the property as well as on the court. After this, the reader has to record a
note stating the fact that all the required formalities dictated by law to be followed have been
complied with. The presiding officer will then take charge of ensuring its truthfulness. The
court also has the obligation to make sure that all the requirements or formalities for a legal
attachment have complied with in order to prevent any sort of material irregularity as it might
cause serious trouble and loss to the parties. The civil courts should also apply proper caution
and care in the process of service of warrants of attachment before they take any action
concerning the property.

When the property is movable property, which is not agricultural produce, then the attaching
officer can seize the property and keep it in his custody. But on the other hand if the property
seized is of a perishable nature or the cost of keeping it is likely to exceed its value the
attaching officer can sell it immediately. If the attachment officer fails to sell such property
by applying every means, he can at the instance of judgment-debtor or decree-holder or
anyone having an interest in such property leave it in the custody of a respectable person in
the village or place where it has been attached. The custodian will later be can be made liable
for the inability to produce such property before the court, or for any loss or damage caused
to it.

When the property is agricultural produce, a copy of the warrant of attachment can be affixed
on the land on which such crops are grown, or where the produce has been cut or gathered, or
on the threshing treading floor or fodder-stack.
Where the property to be attached is a negotiable interest which is not within the custody of a
public officer, or deposited in the court, the process of attachment can be carried out through
actual seizure.

Precept

The dictionary meaning of the word Precept is “ a general rule intended to regulate
behaviour”, a writ or a command.

According to Section 46 Attachment can be made under percept, under which an interim
attachment is provided to the decree-holder. The sections provided that the court which
passed the order may on the request of the decree-holder, issue a precept to the court within
whose jurisdiction the property of the judgement-debtor is lying to be attached to any
property specified in the precept.

Thus, a precept aims at preventing alienation of property of the judgement-debtor not located
within the jurisdiction of the court which passed the decree.

Garnishee order

Rule 46-A to 46-I of Order 21 outlines the procedure in case of garnishee orders. In a
Garnishee order, the decree-holder seeks to reach money or property of the Judgement-debtor
in the hands of a third party(another person). Then the third party may be ordered by the court
to pay the judgement creditor the debt from him to the judgement-debtor. This type of
exchange is valid.

A Garnishee is a person who is the debtor of judgement-debtor. He is that person who is

under an obligation to pay his debt to judgement-debtor or to deliver any movable property to
him. “Garnishor” is the one in whose favour the decree is passed i.e., decree-holder
(judgement- creditor). He is the person who brings such proceedings to reach judgement’s
debtor money or property held by a third party. A garnishee order helps the debt due by the
debtor of the judgement-debtor to be available to the decree-holder without involving him in
the suit.

Determination of attachment
Determination means the status of the attachment at a particular time. In times of cases where
the property has been attached but later on the court passes an order dismissing such an
execution, the court will direct the status of the attachment, i.e, whether the attachment will
continue or discontinue to exist. If then the court fails to give clear direction it is considered
implied that the attachment has been ceased.

Order XXI Rules 55-38 explains the circumstances under which the attachment is determined
under the Code. 

1. Where the decretal amount is paid or is satisfied;

2. Where the decree is reversed or set aside;

3. Where the court highlights an objection against the attachment and makes an order
for releasing the property; 

4. Where after the attachment the application for execution is dismissed;

5. Where the judgment holder withdraws the attachment;

6. Where the decree-holder fails to do what he was required to do under the decree;

7. Where the suit of the plaintiff is dismissed;

8. Where the attachment is ordered before the judgement and the defendant furnishes
necessary security;

9. Where there is an agreement or compromise made between the parties;

10. Where the creditor abandons the attachment.

Private alienation of property after attachment

Section 64(1) states that a private alienation of property made after the attachment is void as
against the claims enforceable under the attachment. Section 64(2) says clarifies that this
section is not applicable in case of transfer of property in pursuance of a contract entered into
before the attachment. This provision is inserted in the Code to stop any kind of fraud on
decree-holders and to keep the interests of the judgement-creditors who are entitled to be
satisfied out of the assets of the judgement-debtor. This provision in a way interferes with the
rights of the owner in alienating his property and hence is construed strictly. However, since
it is for the benefit of the creditor he can waive this benefit. A private transfer here means a
voluntary transfer like sale, lease, gift, mortgage etc. the transfer directed by the court is not
included in private transfer. Therefore a private transfer in contravention of Section 64 is not
wholly void against all other transactions bit is void only against the claims enforceable under
the attachment and only to the extent necessary to meet those claims.

.Temporary Injunction

Temporary Injunction: The temporary Injunction is been granted by the Court when the
Defendant is about to the make some injury to the property of the Plaintiff or threatens the
Plaintiff to dispossess the property or creates a thirty party interest in the property, then in
such situation, the Court may grant a temporary injunction to restrain the Defendant to do
such an act or make other order to prevent the dispossession of the plaintiff or prevent the
causing of injury to the plaintiff in relation to any property in dispute or creating any thirty
party rights in the property.
Temporary injunction is an interim remedy that is raised to reserve the subject matter in its
existing condition and which may be granted on an interlocutory application at any stay of
the suit. Its purpose is to prevent the suspension of the plaintiff’s rights. Section 94 of the
CPC provides the supplemental proceeding so that Plaintiff can prevent this right, wherein
Section 94 (c) and (e) of Code of Civil Procedure, the Court may grant a temporary
injunction or make such other interlocutory orders. These are temporary injunction because
its validity is until the further order passed by the court or until the final decree of the case.

Further the ad-interim injunction is granted during the pendency of the application and
operates till the disposal of the application. In Ramrameshwari Devi vs. Nirmala Devi and
Ors. Civil Appeal No. 49/2011[2] – the Supreme Court held that, the Court should be
extremely careful and cautious while granting ex-party ad interim injunctions or stay orders.
Ordinarily a short notice should be issued to the Defendant/Respondent and only after
hearing both the parties concerns Court can pass the appropriate orders.

Who may apply for temporary injunction and against whom injunction may be issued

An application for interim injunction along with affidavit may be made both Plaintiff or
Defendant. Order 39 Rule (1) a, any party to the suit can apply for a Temporary Injunction.
An Injunction may be issued only against a party and not against a stranger or third party.
Further, the injunction cannot be issued against the Court or Judicial Officers.

What are the basic principles of temporary injunction

Granting the temporary injunction is the exercise of the discretion which should be in judicial
manner. No hard and fast rule can be laid down for guidance of the court to that effect.
Therefore it is well settled that, before granting the Temporary Injunction, the Judge has to
consider whether the Application is falling into below-mentioned categories/ has Plaintiff
shown following points:

1. Prima Facie Case

2. Irreparable Injury

3. Balance of Inconvenience

4. Other Factor
Let us understand the meaning and how all the basic ingredients are identified in below
mentioned cases laws;

 Is it a Prima Facie case: In every application, the Applicant/Plaintiff must make

out a prima facie case in support of the right claimed by the Plaintiff. The Court
should be pleased that there is a bonafide dispute between the parties wherein the
investigation is needed. The Plaintiff is given the burden to prove and satisfy the
court by leading evidence or witness that he has a prima facie case in his favour.
The plaintiff should come to Court with clean Any material facts are suppressed by
the Plaintiff then, in that case, the Plaintiff is not liable for any relief.
In Martin Burn Ltd vs. R.N.Banerjee 1958 AIR 79 SCR 514, [4] –  The Supreme Court held
that a prima facie case does not mean a case proved to the hilt but a case which can be said to
be established if the evidence led in support of the same were believed. It does not involve
the determination of the conflict of evidence or complex questions of fact and law, which call
for detailed arguments.  

It further requires that the Plaintiff should come before the Court with clean hands. If he
suppresses material facts and evidence then he is not entitled for the relief of injunction and
further points of balance of convenience, irreparable injury need not be considered in such
case.

Is there any Irreparable Injury: Further, the applicant must satisfy the court that he will suffer
irreparable injury if the injunction is not granted. The Court is satisfied that the Plaintiff
needs to be protected from the consequences of apprehended injury. An injury will be viewed
as irreparable wherein there exists no certain monetary standard for calculating damages.
The expression irreparable injury however does not mean that there should be no possibility
of repairing the injury. It only means that the injury must be a material one. i.e. which cannot
be adequately compensated by damages. An injury will be regarded as irreparable where
there exists no certain pecuniary standard for measuring damages.

Ground for granting temporary injunction from court

Under Section 95 of CPC, it is specifically mentioned that the temporary injunction may be
granted in any suit wherein the Court is satisfied that there are sufficient grounds to grant the
temporary injunction. If the Plaintiff fails to prove the sufficient grounds in his application
then the Court may pass the suitable compensation to the defendant, in case the Defendant is
claiming in his application.

Section 95 read with Order 39 Rule 1 and 2 empowers the Court to pass the temporary
injunction:

 When there is a reasonable apprehension and danger of alienation or disposal of

property by any party to the suit or by wrongful waste of the property; or

 When there is an apprehension of alienation or disposal of the property to defraud

creditors; or

 Where Defendant threatens to dispossess the Plaintiff or otherwise causes injury to

the interest of the Plaintiff or otherwise causes injury to the interest of Plaintiff in
relation to the disputed property; or

 When the Defendant is about to commit a breach of contract; or

 Any other injury is likely to be caused or likely to be repeated; or

  Where the Court is of the opinion that for protection of interest of any party to the
suit or in the interest of justice injunction or stay is required and necessary.

Temporary Injunction when cannot be granted

 To restrain any person from prosecuting a judicial proceeding at the institution of

the suit, in which injunction is sought, unless restraint is necessary to prevent
multiplicity of proceedings.

 to restrain any person from instituting or prosecuting any proceeding in a Court

not subordinate to that, from which injunction is sought.

 to restrain any person from applying to any legislative body,

 to restrain any person from instituting or prosecuting any proceeding in a criminal

matter,

 to prevent the breach of a contract the performance of which could not be

specifically enforced.

 to prevent on the ground of nuisance, and act of which it is not reasonably clear
that it will be a nuisance.

 to prevent a continuing breach in which the plaintiff has acquiesced,

 when equally efficacious relief can be certainly be obtained by any other usual
mode of proceeding except in case of breach of trust,

 when conduct of the plaintiff or his agents has been such as to disentitle him to the
assistance of the Court.

 when the plaintiff has no personal interest in the matter

MISJOINDER OF PARTIES AND ITS EFFECT

The joinder of any person as a party to a suit contrary to the provisions of the code is called
misjoinder. Misjoinder may be misjoinder of plaintiffs; misjoinder of defendants and
misjoinder of cause of actions.
Misjoinder of Plaintiffs

Where two or more persons may have been joined as plaintiffs in one suit but the right to
relief alleged alleged to exist in each plaintiff does not arise out of the same act or transaction
(or series of acts or transaction) and if separate suits were brought by each plaintiff no
common question of fact or law would have been arisen, there is misjoinder of plaintiffs. The
objection on the ground of misjoinder of the plaintiffs, should be taken at the earliest possible
opportunity; if not, it is be deemed to have been waived. 

Misjoinder of defendents

Likewise, where two or more persons have been joined as defendants in one suit but the right
to relief alleged to exist against each defendant does not arise out of the same act or
transaction (or series of acts or transactions) and if separate suits were brought against each
defendant, no common question of fact or law would have arisen, there is misjoinder of
defendants. 

Misjoinder of cause of action

Misjoinder of causes of action may be coupled with the misjoinder of plaintiffs or misjoinder
of defendants. Thus, the subject may be considered under the following three heads-

Misjoinder of plaintiffs and cause of action

where in a suit there are two or more plaintiffs and two or more causes of action, the
plaintiffs should be jointly interested in all the causes of action. If the plaintiffs are not jointly
interest in all the cause of action, the case is one of misjoinder of plaintyiffs and cause of
action. The objection on the ground of misjoinder of plaintiffs and causes of action should be
taken at the earliest opportunity. 

Misjoinder of defendant and causes of action : Multifariousness

Where in a suit, there are two or more defendants and two or more cause of action, the suit
will be bad for misjoinder of defendants and causes of action, if different causes of action are
joined against different defendants separately.  Such a misjoinder is technically called
multifariousness. The objection on the ground of multifariousness should be taken at the
earliest opportunity.
In a suit for recovery of loan advanced on an overdraft account, the joinder of a claim against
the agent on the ground that he had acted in excess of his authority and against the managing
director on the ground that he had approved of it would render the action multifarious. 

In a case, where the plaintiff purchased the suit house in which two pesons were residing as
tenants separately and he brought a suit for eviction against both the defendant-tenents
claiming different relief against them. It was held that the suit was bad for multifariousness. 

Misjoinder of claims founded on several causes of actions

Order 2 of the code of Civil Procedure Code deals with the misjoinder of claims founded on
several claims. According to the rule, every suit must include the whole claim which the
plaintiff is entitled to make in respect of that cause of action.

The question whether or not there is misjoinder of parties has to be decided on the basis of
the averments made in the plaint and not reference either to the written statement or on the
evidence led by the parties.

Rule 9 expressly and unequivocally declares that no suit is liable to be dismissed by reason of
misjoinder of parties. In other words, misjoinder of parties is not fatal to the suit. It is mere
irregularity covered by sections 99 and 99-A of the Code. Hence the various high courts, on
the question of misjoinder of parties held that no decree shall be reversed or substantially
varied, nor shall a case be remanded in appeal inter alia on account of misjoinder of parties,
not affecting the merits of the case or the jurisdiction of the court. [18] Where there is a
misjoinder of parties, the name of the plaintiff or the defendant who has been improperly
joined may be struck out under 10 and the case may be proceed with.

In patasibai V. Ratanlal, an application for the correction of misdescription of the defendant

(in the plaint) was allowed, the correction could not be incorporated in the plaint. But, the
misdescription did not mislead any party. In fact, the written statement and the documents in
appeal carried the correct name. it was held that decree was valid.

NON-JOINDER OF THE PARTIES AND ITS EFFECT

When a person who is a necessary party to a suit has not be joined as a party to the suit, it is a
case of non-joinder. As regards the non-joinder of parties, a distinction has been drawn
between the non-joinder who ought to have been joined as a party and the non-joinder of a
person whose joinder is only a matter of convenience or expediency.

A suit is not to be dismissed only on the ground of non-joinder of parties. The court may
allow necessary parties to be joined, in at a later stage. The court may in every suit deal with
the matter in controversy so far as regards the rights and interests of the parties actually
before it.

According to the proviso of the Rule 9 of Order 1 nothing in the said rule applies to non-
joinder of a necessary party. A necessary party is that in whose absence the court cannot pass
an effective decree. If the decree cannot be effective without the absent party, the suit is liable
to be dismissed. However, where the joinder of a person is only a matter of convenience and
he has not be joined as a party, he may be added at any stage or the suit may be tried without
impleading him. The allowing of the suit depends on whether a party who has not been joined
is a necessary party or merely a proper party. If a necessary party is not joined, then, the suit
is liable to be dismissed. 

Section 99 of the Code of Civil Procedure provides that no decree shall be reversed or
substantially valid, nor shall any case be remanded, in appeal on account of any misjoinder or
non-joinder of parties or causes of action or any error, defect or irregularity in any
proceedings in the suit, not affecting the merits of the case or the jurisdiction of the court and,
however, nothing in this section shall apply to non-joinder of a necessary party. Where a
relief is sought against a party without impleading him as a party, the suit would be liable to
be dismissed.

In case of non-joinder of parties, Rule 9 provides against the dismissal of suit. The only
course open to the court under such circumstances is formally to call upon the plaintiff to
make his election and confine the suit to one set of defendants. In case of non-joinder of the
necessary party, an opportunity should be given to the plaintiff to add the necessary party.
The Calcutta High Court in the case of suit for recovery of money against LIC, it held that all
the heirs of the claimant would be necessary parties to the suit and non-joinder of some of
them would be bad. 

Rule 1 of Order 1 is subject to local, or special law, statutory provisions as also to any special
form of procedure prescribed by any law. Thus, any special law provides that a certain person
must beimpleaded as a defendant although no relief is claimed against him, then failure to
implead him will be fatal to suit notwithstanding the provision of Order 1 rule 9. 

Where a suit for possession was filed, and the defendant derived his title from the auction-
purchaser in liquidations proceedings of a company, but the plaintiff sued for declaration that
the auction proceedings and the subsequent conveyance by auction purchaser to defendant
were void in law under a certain Act, it was held by the Supreme Court in Vishnu v. Rajan
Textile Mills, that the liquidator was a necessary party and in his absence the suit for
declaration must fail.

Rule 9 applies to a mortgage suit as well as to other suits. In a suit for redemption of
mortgage property where the daughters of the mortgagee who were necessary parties were
not impleaded and objection as to non-joinder was not raised at earliest opportunity, the suit
annot be maintained on account of non-joinder.

The Supreme Court held that a candidate who had withdrawn before contesting elections was
not a necessary party and so his non-joinder was not fatal to the maintainability of the
election petition and that therefore he could be impleaded as there was nothing in the Act
which excluded their application. [23]

OBJECTIONS AS TO MISJOINDER AND NON-JOINDER OF PARTIES

All objections on the ground of non-joinder or misjoinder of parties must be taken at the
earliest opportunity, otherwise they will be deemed to have been waived. But, if the
objections as to non-joinder of necessary party has been taken by the defendant at the earliest
stage and the plaintiff declines to add the necessary party, he cannot subsequently be allowed
in appeal to rectify the error by applying the amendment. 

As per Rule 13 of Order 1 of the Code of Civil Procedure, all objections on the ground of
non-joinder or mis-joinder of parties shall be taken at the earliest possible opportunity and, in
all cases where issues are settled, at or before such settlement, unless the ground of objection
has subsequently arisen, and any such objection not so taken shall be deemed to have been
waived.

The Supreme Court in various cases held that an objection to non-joinder and misjoinder of
necessary party should be taken at the earliest opportunity before the settlement of issues. An
objection as to non-impleadment of a party, in a writ petition has to be taken at the stage of
second appeal. The Andhra Pradesh High Court held that an issue of non-joinder of a
necessary party can be raised in appelleate court. An objection as to non-impleadment of a
party, in a writ petition has to be taken at the stage of counter-affidavit and not at the belated
stage of hearing.

An issue of non-joinder of a necessary party can be raised in appellate court. An objection as

to non-impleadment of a necessary party, which was not taken in the first appeal cannot be
allowed to be taken at the stage of second appeal. 

Objection as to misjoinder, when not raised in court of first instance is no ground for
reversing a decree when they do not affect the merits of the case. The plea cannot be raised
for the first time in the second appeal. When objection to want of parties is not raised by the
defendant, it must be deemed to have been waived. But, court can add one as a party if it
thinks it necessary. Where a necessary party is not impleaded, the objection even if not taken
in the trial court, cannot be said to be waived. It can be raised even in revision. 

The words ‘unless the ground objection has subsequently arisen’ allows to object even after
the settlement of issues. In a partition suit, all coparceners must be joined as parties, even
though some of them may be born after the institution of the suit. In the same way, a woman
who is a party to a suit is married after the settlement of issues and the nature of the suit is
such that the husband is a necessary party, the plaintiff should make the husband a party and
the defendant may raise this objections even though it be after the settlement of issues.

Meaning of set off

The concept of set off, as stated hereinbefore, is a claim set up against the plaintiff which has
the effect of reduction or discharge of a party’s debt or claim. In other words, it is a cross-
claim which partly offsets the original claim. Where there are mutual debts between the
plaintiff and the defendant, one debt maybe settled against the other. It is a plea which is
available to the defendant for his defence in a suit instituted by the plaintiff.

In B. Seshaiah v. B. Veerabhadrayya, the Andhra High Court expressed the concept as “the
extinction of debts of which two persons are reciprocally debtors to one another by the credits
of which they are reciprocally creditors to one another”. The same doctrine as provided under
Order VIII Rule 6 of CPC allows the defendant to settle the reciprocal claims against the
plaintiff without the need for filing a different suit. This helps in settling the reciprocal claims
of the plaintiff and defendant in the same suit.

Legal requirements under Order VIII Rule 6

Under Order VIII Rule 6, the provision of set off has been reproduced hereinafter;

1. Where in a suit for the recovery of money the defendant claims to set off against
the plaintiff’s demand any ascertained sum of money legally recoverable by him
from the plaintiff, not exceeding the pecuniary limits of the jurisdiction of the
Court, and both parties fill the same characters they fill the plaintiff’s suit, the
defendant may, at the first hearing of the suit, but not afterwards unless permitted
by the Court, present a written statement containing the particulars of the debt
sought to be set off.
Therefore, in order for a defendant to take the plea of set off against the plaintiff, a number of
conditions are to be satisfied which are as follows: 

 The suit filed by the plaintiff must be for the purposes of recovery of money. 

 The money to be recovered must of a sum which is ascertainable. 

 The same sum must be legally recoverable by the defendant from the plaintiff. 

 The sum legally recoverable must not exceed the pecuniary jurisdiction of the
court in which the suit by the plaintiff against the defendant is filed. 

 Both the parties, i.e., the defendant and the plaintiff must fill the same character as
they fill in the plaintiff’s suit.

Types of set off

The law recognizes two types of set off, among which only one is expressly provided under
Order VIII Rule 6 CPC, which is generally termed as a legal set off. The legal requirements
as to a set off has been discussed and elaborated upon hereinbefore. Apart from that a set off
cannot travel beyond the scope and the limit of the suit under which it is filed. It cannot bring
out something which is entirely new and not present in the original petition. It is an
independent cause of action for the defendant and, both the petitioner’s and the defendant’s
claims are adjusted in favour of the person whose amount is greater.    

The set off under CPC is not exhaustive in its application and the rules of equity provides for
another type of set off available to the courts which is commonly known as equitable set off.
The concept of equitable set off is used by the courts in cases where the legal set off is not
available, as the case doesn’t fall or fulfills the legal requirements as per order VIII Rule 6.
Alternatively, in addition to legal set off, equitable set off, as allowed by the courts of equity
in England, may be claimed by the defendant in respect of even an unascertained sum of
money, provided that both the cross demands arise out of one and the same transaction or are
so connected, in the nature and circumstances, that they can be looked upon as parts of one
transaction. Therefore, in order to avoid filing of a different suit in that scenario, the equitable
set off can be granted. However, it is important to note that unlike a legal set off which is
available to the defendant under the provisions of CPC, the application of equitable set off
lies solely at the discretion of the court and is not available to the defendant as a matter of
right.

Let’s understand both the types of set off with the help of illustrations:

Legal set off—

A sues B for compensation on account of trespass. B holds a promissory note for Rs. 1000

from A and claims to set off that amount against any sum that A may recover in the
suit. B may do so. As soon as A recovers, both sums are definite pecuniary demands.

In this scenario, a set off can be claimed since all the requirements under Order VIII Rule 6
(as stated hereinbefore) for a set off are fulfilled.  

Equitable set off—

A sues B to recover Rs. 50,000 under a contract, B can claim set off towards damages
sustained by him due to breach of the same contract by A. 
In this case, the damages claimed by way of set off are not fully covered by Rule 6 Order
VIII since the set off claimed is not an ascertained sum of money. Therefore, the court has the
discretion to allow the same depending upon the facts of the matter.

Effect of set off

In a case where set off is claimed by the defendant in a suit instituted by the plaintiff, the
written statement filed by the defendant works as and has the same effect as that of a plaint in
a different suit. This written statement effectively acts as a cross suit against the plaintiff
although the requirement for filing a separate suit is not there. In other words, the court has
two suits in a case where set off is claimed, but the same are tried together as a single suit and
no separate suit number lies for the same. The same is also stated under clause (2) of Rule 6
Order VIII, CPC.

Where the plaintiff does not appear and his suit is dismissed for default, or he withdraws his
suit, or he fails to substantiate his claim at the trial and his suit is dismissed, it does not affect
the claim for a set off by the defendant and a decree may be passed in favour of the defendant
if he is able to prove his claim.

Set off and counterclaim

The counterclaim is provided under Rule 6-A of Order VIII, wherein the defendant has the
right in a suit instituted by the plaintiff to set-up any right or claim against the plaintiff, in the
same suit in respect of any cause of action accruing to the defendant against the plaintiff
either before or after the filing of the suit but before the time limited for delivering his
defence has expired.

Keeping in view both the provision under Order VIII, the major differences between the two
can be summarized as follows:

1. Set off is available as a form of statutory defence in a case, whereas counter claim
in essence is similar to a cross suit founded upon a cause of action accruing based
on the same facts or otherwise. The counterclaim can also be said to be weapon of
offence 
 2. The legal requirement for a claim of set off is strict and includes only claim for an
ascertained amount of money which must arise from the same transaction in a
money suit; whereas the same is not the case in a counterclaim and it doesn’t
necessarily have to be based on the same transaction.

3. The claim of set off must be an ascertained sum which must be recoverable legally
at the date of the filing of the suit, whereas in a counterclaim the same should be
recoverable at the date of the written statement.

the time and efforts of the courts as well as of the parties by eliminating multiplicity of
proceedings

Counter Claim

Introduction

The meaning of the term “counter claim” can be interpreted from a bare perusal of Order 8
Rule 6A of the Code of Civil Procedure, 1908 (“CPC”). This rule, along with rules 6B to 6G
of the CPC, was inserted after the enactment of the CPC (Amendment) Act of 1976. This
amendment came as a result of the 27th Law Commission Report, 1964 that emphasized
upon conferring the defendant with a right to file a counter claim. Rule 6A states that the
defendant, by means of a counter-claim can claim any form of a right or a claim with respect
to a cause of action that accrues w.r.t. to the defendant against the claim of the plaintiff. 

The Hon’ble Delhi High Court in the case of Gastech Process Engineering (India) Pvt. Ltd. v.
Saipem has observed that “counter claim is a weapon of defence and enables the defendant
to enforce a claim against the plaintiff and is allowed to be raised to avoid multiplicity of
proceedings”

When to file a counter claim?

According to the wording of Rule 6A, CPC there are three essential situations as to when the
counter-claim can be filed, which can be found listed as follows:

 “before or after filing the suit, but 

 before the defendant has delivered his defence,  or 

  before the time limited for delivering his defence has expired.”
Such a claim can have the nature of a claim for damages and otherwise as well, as can be
made out from a bare perusal of the rule. Furthermore, it was held by the Hon’ble Apex Court
in the case of Ashok Kumar Kalra v. Wing Cdr. Surendra Agnihotrithat the court shall permit
the filing of the counter claim only after the written statement is filed, but not after the issues
are formulated. Nevertheless, an exception is allowed in some extraordinary situations where
the counter claims can be filed even after the issues are framed so as to prevent the institution
of multiple proceedings.

Differences between a counter claim and a set off

It is not uncommon for a person analyzing Order 8 of the CPC for the first time to confuse
the meaning of a set off with that of the counter claim. The analysis of the following section
will be instrumental in demystifying the differences between the meaning of counter claim
and a set off. 

Order 8 Rule 6 of the CPC mentions the meaning of a set off. It states as follows:
“The written statement shall:

 have the same effect as a plaint in a cross-suit; 

 enable the Court to pronounce a final judgment; 

 in respect both of the original claim and of the set-off: 

 not affect the lien, upon the amount decreed, of any pleader in respect of the costs
payable to him under the decree.”
As can be made out from the aforementioned definition, the written statement in a set off
does not constitute a separate suit by itself rather has an effect similar to that of a plaint which
is filed in a cross suit, and is instrumental in assisting the court in arriving upon a judgment
with regard to the suit as a whole. According to the third point mentioned above, as a part of
the section, the written statement shall apply both to the claim filed originally and the set-off
in this regard. And finally, the written statement shall not affect any aspect of the suit that has
been filed with regard to the costs payable under the decree rendered by the court, such as a
lien or the amount that is decreed with regard to a pleader with regard to the costs that he is
entitled to as a result of the same. 

Counter-Claim: On the contrary, a counter claim under Order 8 Rule 6A enables the

defendant to set up a counter claim (which has an existence identical to that of a claim in
itself) against the claim filed by the plaintiff, and this is a provision that adds to his right to
plead a set off under Rule 6. 

Unlike a set off, which exists in a way similar to that of a plaint which is filed in a cross suit,
the counter-claim has the same effect as a cross suit, as can be made out from a bare perusal
of Order 8 Rule 6A(2), which states that, “Such counter-claim shall have the same effect as a
cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on
the original claim and on the counter-claim.”. 

Furthermore, it was held by the Hon’ble High Court of Kerala in the case of Sarojini Amma
v. Dakshyani Amma that “a counter claim has the same effect as a cross suit and has to be
disposed of along with the main suit in which it is filed; the only limitation is that the Court
should be competent to dispose of the counter claim and the main purpose of setting up a
counter claim is to prevent multiplicity of proceedings between the parties.”.

Measures that can be taken by the plaintiff post the filing of the counter claim 

Grounds under which a counter claim can be excluded

According to Order 8 Rule 6C, in a situation where the defendant initiates a counter claim
and the plaintiff comes up with a contention whereby it is pointed out with sufficient reasons
that the claim so raised should not be disposed of by a counter-claim but rather, by an
independent suit, the counter claim can be excluded as a result. The plaintiff has to apply for
an order for the exclusion of the counter claim before the court settles the issues in relation to
the counter claim.

In the case of Malaga Realtors Private Limited v. Vilas Pundalik Malik and Ors., the original
defendants had taken an exception to the order of the Senior Judge at Mapusa directing the
exclusion of the counter claim so filed by them. The plaintiffs in this case had moved the
application for exclusion stating that, if at all the defendants had a title over the suit property,
their claim was meant to be adjudicated upon and dealt with in an independently filed suit,
and not in the one filed by them. It was subsequently held by the Hon’ble High Court of
Bombay at Goa that no prejudice had been caused to the petitioners or the original defendants
by the exclusion of the counter claim in this regard, that no cause of action could be made out
in that regard, and hence the petition was dismissed accordingly.

Consequences of a default on the part of a plaintiff while filing the reply to the counter claim 

As per Order 8 Rule 6E, the plaintiff has to take care to ensure that there is no default which
arises on their part when it comes to putting in a reply to the counter claim filed, so as to
ensure that the court does not proceed with pronouncing a judgment against them in the
counter-claim so initiated by the defendant. In the case of Jeenat Parveen and Ors. v. The
Civil Judge, the court did not allow the petitioner to undertake the filing of the reply to the
counter claim filed by the respondents while noting that this would only delay the
proceedings further. The petitioners in the aforementioned case had not filed the reply for
more than one year and five months, hence the judgment. It must hence be ensured by the
plaintiff that no such default ever arises so as to avoid coming within the ambit of the
provision stated in Order 8 Rule 6E.

Limitation Act

Introduction

The law of limitation finds its root in the maxims “Interest Reipublicae Ut Sit Finis
Litium”  which means that in the interest of the state as a whole there should be a limit to
litigation and “vigilantibus non dormientibus Jura subveniunt” which means the law will
assist only those who are vigilant with their rights and not those who sleep upon it. The law
of limitation specifies the statutory time frame within which a person may initiate a legal
proceeding or a legal action can be brought. If a suit is filed after the expiry of the time
prescribed it will be barred by the Limitation. It means that a suit brought before the Court
after the expiry of the time within which a legal proceeding should’ve been initiated will be
restricted.
Limitation Bars Remedy

Section 3 lays down the general rule that if any suit, appeal or application is brought before
the Court after the expiry of the prescribed time then the court shall dismiss such suit, appeal
or application as time-barred. The law of limitation only bars the judicial remedy and does
not extinguish the right. In other words, It means that the statute of limitation prescribes only
the period within which legal proceedings have to be initiated. It does not restrict any period
for setting up a defence to such actions. Hence, the original right to suit is not barred.
However, Section 27 is an exception to this rule.

Plea of limitation: Duty of Court

The Court is under an obligation to dismiss a suit if it is filed beyond the time prescribed by
the Limitation Act. The provisions of Section 3 are mandatory and the Court will not proceed
with the suit if it is barred by time. Under Section 3 of the Act, it is clearly mentioned that
every suit instituted, appeal preferred and the application made after the prescribed period
shall be dismissed. Even though limitation has not been set up as a defence.

Starting point of Limitation

The time from which period of limitation begins to run depends upon the subject matter of
the case and a specific starting point of such period is provided extensively by the Schedule
in the Act. It generally starts from the date when the summons or notice is served, or the date
on which the decree or judgment is passed, or the date on which the event that forms the basis
of the suit takes place. The Supreme Court in Trustee’s Port Bombay v. The Premier
Automobile held that the starting point of limitation is the accrual of the cause of action.

Expiry Period of Limitation When Court is Closed

When a court is closed on a certain day and the period of limitation expires on that day, then
any suit, appeal or application shall be taken up to the Court on the day on which it reopens.
This means that a party is prevented not by his own fault but because of the Court being
closed on that day. Section 4 of the Limitation Act provides that when the period of limitation
is prescribed for any suit, appeal or application and such period expires on a day when the
Court is closed, such suit, appeal or application shall be instituted, preferred or made on the
day on which the Court reopens. The explanation to this section mentions that within the
meaning of this Section a Court shall be deemed to be closed on any day if during any part of
the normal working of the Court it remains closed on that day.

For instance, if a Court reopens on 1st January and the time for filing the appeal expires on
30th December (the day on which the Court remains closed) then the appeal can be preferred
on the 1st of January when the Court reopens.

Condonation of Delay

Condonation of delay means that extension of time given in certain cases provided there is
sufficient cause for such delay. Section 5 talks about the extension of the prescribed period in
certain cases. It provides that if the appellant or the applicant satisfies the court that he had
sufficient cause to not prefer the appeal or application within that period, such appeal or
application can be admitted after the prescribed time. This Section further mentions that an
application made under any of the provisions of Order XXI of the Code of Civil Procedure,
1908 (5 of 1908). The explanation states that in ascertaining or computing the period
prescribed when the applicant or appellant has been misled by any order, practice or
judgment of the High Court. It will be a sufficient cause within the meaning of this section.  

However, If a party does not show any cogent ground for delay then the application, suit or
appeal will be rejected by the court.

In the case of State of Kerala v. K. T. Shaduli Yussuff, the court held, whether or not there is
sufficient cause for condonation of delay is a question of fact dependant upon the
circumstances of a particular case.

Sufficient Cause

Sufficient cause means that there should be adequate reasons or reasonable ground for the
court to believe that the applicant was prevented from being proceeding with the application
in a Court of Law.
In State (NCT of Delhi) v. Ahmed Jaan, it was said that the expression “sufficient cause”
should receive a liberal construction. In Balwant Singh (Dead) v. Jagdish Singh & Ors,the
Supreme Court held that it is obligatory upon the applicant to show sufficient cause because
of which he was prevented from continuing to prosecute the proceeding in the suit. In this
case, there was a delay of 778 days in filing the application for bringing the legal
representatives on record. 

In Ornate Traders Private Limited v. Mumbai, the Bombay High Court ruled that where there
is sufficient cause shown and the application for condonation of delay has moved bonafidely,
the court would usually condone the delay but where the delay has not been explained at all
and there is an inordinate delay in addition to negligence and carelessness, the discretion of
the court would normally be against the applicant. 

The Bombay High Court in Brij Indar Singh v. Kansi Ramobserved that the true guide for the
Court while exercising jurisdiction under Section 5 is whether the litigant acted with sensible
and reasonable diligence in prosecuting the appeal.

Whether an applicant has given a sufficient cause or not depends upon the discretion of the
court and the circumstances of each case. For instance, a Court can condone the delay on
medical grounds.

 a pragmatic matter;

 A litigant does not stand to benefit by resorting to delay but in fact, he is at serious
risk;

 It must be understood that the judiciary is resected not because of its power to
legalize injustice on technical grounds but because it is capable of removing
injustice.

Delay by Government

Under Section 25, where a property belonging to the Government over which access and use
of light or any way or watercourse or the use of any water, have been peaceably and openly
enjoyed as an easement and as of a right by any person claiming title thereto, without any
interruption for thirty years, the right to such access and use of light or air, or way or
waterway, or use of their easement shall be absolute and indefeasible, In case of a private
property it is twenty years.   

Exclusion of Time

Section 12 to Section 15 deals with the exclusion of time under the Limitation Act. Section
12 talks about the time that has to be excluded for computing time of limitation in legal
proceedings. Sub-section (1) says that the day on which the cause of action arises that day
shall be excluded while computing the period of limitation for any suit, appeal or application,
the day from which such period is to be reckoned.

The following time has to be excluded from computing the period of limitation:

 The day on which the period of limitation for any suit, appeal or application has
been reckoned.

 In case of an appeal or an application for leave to appeal/revision/review of a

judgment:                                                    
i) The day on which the judgment complained of was pronounced.

ii) Necessary time taken for obtaining a copy of the decree, sentence, order appealed from or
sought to be revised or reviewed.

 In case of decree or order is appealed from or sought to be revised or reviewed or

an application for leave to appeal from a decree: 
i) Time requisite for obtaining a copy of the judgment

 In case of application to set aside an award: 

i) Time requisite for obtaining a copy of the award  

Explanation to this Section states that in computing the time necessary for obtaining a copy
of the decree or order the time taken by the court to prepare the decree or order before an
application for a copy of the decree or order is made shall not be excluded. 
Under Section 13, where an application for leave to sue or appeal as a pauper (indigent) has
been made and rejected, the time spent by the applicant in prosecuting in good faith shall be
excluded.

Under Section 14, if a party is proceeding in good faith in a court without jurisdiction any suit
or application the time spent by the party should be prosecuting another civil proceeding with
due diligence and that prosecution shall be in good faith shall be excluded.

Under Section 15, the following time shall be excluded:

 The day of the issuance and withdrawal of the stay order or injunction.

 In case where a previous consent or sanction of the government is required – the

time spent on obtaining the consent or sanction.

 In case of proceedings for winding up of a company- the time during which the
receiver or liquidator was appointed.

 In case of a suit for possession by a purchaser at a sale in execution of decree- the

time during which proceeding to set aside sale has been prosecuted.

 The time during which the defendant is absent from India and under territory
outside India under the administration of the Central Government.

Postponement of Limitation

Postponement of limitation means extending the period of limitation. Section 16 to 23 of the

Act deals with the postponement of limitation.

In the following cases the period of limitation will not begin to run:

 Under Section 16: Firstly, where a person having the right to sue or make an

application has died before the right accrues or right accrues only on the death of
that person- the period of limitation will be computed from the time when there is
a legal representative who is capable of instituting. Secondly, where a person
against whom the right to sue or make an application would have accrued dies or
 would have accrued on his death, limitation will start when there will be a legal
representative of the deceased.

 Under Section 17: Where the suit or application is based upon fraud, mistake or
concealment by fraud- the period of limitation will not start unless the plaintiff or
applicant has discovered the fraud, concealment or mistake.

 Under Section 18: In case of an acknowledgment of liability in respect of any

property or right-a-fresh period of limitation will be computed from the time
acknowledgment was signed.

 Under Section 19: where payment on account of a debt or of interest on legacy- a

fresh period of limitation will be computed when payment was made.

 Section 20: Section 20 is only a further explanation of section 18 and section 19. It
says that under a disability the expression ‘agent duly authorised’ will include the
lawful guardian, committee, manager or agent duly authorised by such guardian,
committee or manager. 

 Section 21: Where a new plaintiff or defendant is added or substituted after the
institution of suit- the suit will be deemed to be instituted when he was so made
the party. However, if the new plaintiff or defendant was added due to a mistake in
good faith and the Court is satisfied, the suit shall be deemed to have been
instituted on an earlier date.

 Under Section 22: Where there is a continuing breach of contract or tort – a fresh

period of limitation will start at the moment when the breach or tort continues.

 Under Section 23: In case of suits for compensation for acts not actionable without
special damage- limitation period will start from the time when the injury
occurs.      

Extinguishment of Right

General Rule that the law of limitation only bars the remedy but does not bar the right
itself. Section 27 is an exception to this rule. It talks about adverse possession. Adverse
possession means someone who is in the possession of another’s land for an extended period
of time can claim a legal title over it. In other words, the title of the property will vest with
the person who resides in or is in possession of the land or property for a long period. If the
rightful owner sleeps over his right, then the right of the owner will be extinguished and the
possessor of the property will confer a good title over it. Section 27 is not limited to physical
possession but also includes de jure possession. As per the wordings of this Section, it applies
and is limited only to suits for possession of the property.

Void Order: Limitation

An order that exceeds the jurisdiction of the court is void or voidable and can be taken up in
any proceeding in any court where the validity of the order comes into question.

In Sukhdev Raj v. State of Punjab, the court held that even for void orders if the suit is filed
then the period of limitation prescribed by the schedule appended to the Limitation Act is
applicable.

The Court in Devi Swarup v. Smt Veena Nirwani ruled that it is a well-settled proposition that
even void orders have to be challenged so that the same can be declared as void. Even a void
order continues to have effect till the same is declared non-est.

In State of Punjab and Ors v. Gurdev Singh, where the question arose whether for avoiding
an ultra vires order of dismissal, an employee is required to approach a court within the
prescribed time by the law of limitation. The argument was based upon the proposition that to
challenge a void order, there is no limitation period prescribed and the aggrieved person can
approach the Court at any time. The Apex Court held that to say that a suit is not governed by
the law of limitation runs afoul to the Limitation Act. The statute of limitations was intended
to provide a time limit for all suits conceivable.   

Case Law: Exception: Union Carbide Corporation. v. Union of India (1991)

 This case involved Union Carbide (India) Ltd (UCIL) which was a subsidiary of

the Union Carbide Corporation (UCC), New York. One of the world’s largest
disaster occurred on the fateful night of 2nd and 3rd December 1984. Methyl
Isocyanide Gas (MIC) considered the most toxic chemical in industrial use leaked
 from the tanks used for its storage in the Union Carbide Company at Bhopal
causing the death of thousands of people. 

 An Act was passed by the Central Government on 23 March 1985 named

the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985 to authorise the
Central Government to ensure that the claims arising out of or in connection to
Bhopal Gas Tragedy are dealt with effectively, swiftly and to the best advantage of
the claimant and for matters related to it. 

 The Union of India in the exercise of its power conferred by the Act instituted an
action on behalf of the victims for the award of compensation before the US
District Court, Southern District of New York.

 Justice Keenan of the Federal District Court dismissed the case as forum non
conveniens with the condition that Union Carbide shall consent to the jurisdiction
of the Indian court and shall waive the defence based upon the statute of
limitations.

 The Bhopal District Court made an order for payment of compensation of rupees
350 crores as interim compensation. This award was challenged in the High Court
and the compensation amount reduced to rupees 250 crores. Later, both the UCC
and the Union of India appealed by special leave against the order of the High
Court. The Supreme Court recorded settlement of claims in the suit for U.S. Dollar
470 million and for the termination of the civil and criminal proceeding. Soon
petitions were filed in the Supreme Court challenging the constitutional validity of
the Act. The judgment, in this case, was pronounced on 22 December 1989
upholding the validity of the Act.             

 The Bhopal Act under Section 8 provides that if a claim is registered under the
provisions of this Act then the provisions of the Limitation Act shall be excluded.
Section 8 states that in computing, under the Limitation Act,1963 or any other law
for the time being in force, the period of limitation for the purpose of instituting a
suit or other proceeding for the enforcement of the claim, any period after the date
on which such claim is registered under, and in accordance with, the provisions of
the Scheme shall be excluded. 
  Further, by virtue of Section 11, the Bhopal Act has an overriding effect over any
other law inconsistent with this Act. Section 11 states that the provisions of this
Act and of any Scheme framed thereunder shall have effect notwithstanding
anything inconsistent therewith contained in any enactment other than this Act or
any instrument having effect by virtue of any enactment other than this Act. 
Hence, the Union Carbide case serves as an exception to the Limitation Act for it excludes
the Limitation Act,1963 from the purview of the Bhopal Act, 1985.     

Conclusion

The law of limitation prescribes the time within which a person can enforce his legal right.
This Act keeps a check on the cases so that they are not dragged for over a long time. This
Act also recognizes the fact that there are situations when persons instituting a suit or
preferring an appeal for a genuine cause are unable to institute a suit within the time
prescribed in the Act and the same criteria cannot be applied to every situation.