Table of Contents

 Definitions (Sec. 2)
o Decree, Judgement, Order
 Decree 
 Deemed Decree 
 Kinds of Decrees 
 Preliminary Decree
 Final Decree 
 Partly preliminary and partly final Decree
 The necessity of a Decree 
 Contents of a Decree 
 Drawing up of a Decree 
 Decrees in Special cases
o Judgement 
 Pronouncement of a judgement
 Copy of the judgement
 Contents of the judgement
 Alteration of a judgement
o Foreign Court, Foreign Judgement (Sec. 13)
 Nature and Scope of Foreign Judgments
 Object of Recognizing Foreign Judgments
 Jurisdiction of Foreign Courts
 Presumption as to foreign judgments
 Conclusiveness of Foreign Judgments
 Foreign Judgment not by a competent court
 Foreign Judgments not on Merits
 Foreign Judgments against International or Indian Law
 Foreign Judgments opposed to the principle of Natural Justice
 Foreign judgment obtained by fraud
 Foreign Judgments founded on breach of Indian Law  
 Enforcement of Foreign Judgments
o Foreign Award
 Effect of Foreign Judgment
 Limitation period for Enforcement of Foreign Judgments
o Other definitions: Affidavit, Suit, Plaint, Written Statement
 Affidavits – Order 19
 Evidence on affidavit
 False affidavit
 Meaning of suit
 Plaint
 Necessary Contents of A Plaint
 Important Concepts
o Res Sub-Judice and Res Judicata (Sec. 10,11)
 Nature, Scope and Objective
  Conditions
 Where the matter in issue is same
 Test
 Suit pending in foreign court
 Inherent power to stay
 Consolidation of suits
 Effect of contravention
 Interim orders
o Res Judicata meaning
 Principle of Res Judicata
 Prerequisites for Res Judicata
 Nature and Scope of Res Judicata
 Rationale
 Failure to Apply
 Doctrine of Res Judicata
 Constructive Res Judicata
 Res Judicata and Estoppel
 Res judicata and Res Subjudice
 Res judicata and Issue Estoppel
 Res Judicata and Stare Decisis
 What is Res Judicata and Collateral Estoppel?
 Res Judicata landmark cases
 Res Judicata landmark cases in India
 Exceptions to res judicata
 Can Res Judicata be waived?
 How to defeat Res Judicata?
 Criticism to Res Judicata
o Restitution (Sec. 144)
 Doctrine of restitution
 Conditions
 Who may apply?
 Who may grant restitution?
 What remedies can the court can grant?
 Nature of proceeding
 Extent of restitution
 Inherent power to grant restitution
 Bar of Suit
o Caveat (Sec. 148A)
 Meaning of Caveat
 When to lodge a Caveat?
 Who may lodge a caveat?
 Where can a caveat be lodged?
 How to file a caveat?
 What does a caveat contain?
  Right and duties
 Rights and duties of the caveator
 Rights and duties of court
 Rights and duties of the applicant
 Limitation of time
 Common mistakes made while filing a caveat
o Inherent power of Courts (sec – 148-153B)
 Enlargement of time
 Payment of court fees
 Transfer of business
 Section 151 of CPC
 Ends of justice
 Abuse of process of the court
 Limitation
 Execution of Judgement and Decree (Order 21)
o Meaning, Nature and Scope
 Execution proceedings under CPC
 Courts which can execute decrees
 Transfer of decree for execution
 Execution of foreign decrees in India
 What is a foreign judgment and a foreign decree?
 Foreign judgment or decree needs to be conclusive
 Mode of enforcement of a foreign judgment or decree
 Execution of foreign decree of a reciprocating territory in India
 Execution in case of decrees from non-reciprocating territories
 Execution of Indian decrees in a foreign territory
 Execution of decree at more than one place
 Procedure in execution
 Section 51
 Mode of executing decree
 Execution by appointing a receiver
 Section 52
 Section 53
 Section 54
 Powers of the transferor court
 Powers of the transferee court
 Powers of executing court
 Mode of executing a decree
 Execution by appointing a receiver.
 Jurisdiction and Place of Suing (Sec. 15 to 20)
o
 Meaning of jurisdiction
 Jurisdiction of Civil Court (Section 9)
 Pecuniary jurisdiction ( Section 15)
  Territorial Jurisdiction (Section 16 to 20)
 Institution of Suit (Sec. 26)
 Pleadings: (Order 6)
o
 What are the Pleadings?
 What rules to be followed while drafting of pleadings?
 In which stage of civil suit pleading can be amended?
 Why do courts allow amendment of Pleadings?
 What can be amended in pleading?
 Can the pleadings be amended if the suit is debarred by the Limitation
Act
 Why is Order 6 Rule 17 criticized?
 What happens when an applicant fails to amend in a prescribed time?
 Plaint and Written Statement (Order 7,8)
o
 Necessary Contents of A Plaint
 Rejection of plaint
 Provisions on the Rejection of Plaint under C.P.C.
 Landmark Cases on Rejection of Plaint
 Appearance and Non-Appearance of Parties (Order 9)
o
Appearance of defendant
Does the same provision apply to the non-appearance of the plaintiff
due to death?
 Application to set aside the dismissal
 When summon is not served
 Ex parte appearance
 Remedies against an ex-parte decree
 Setting aside an ex-parte decree
 Sufficient Cause
 Commissions (Sec. 75 to 78 Order 26)
o
 Who can be appointed as a commissioner?
 What is the procedure for appointment of commissioner?
 When can a commissioner be appointed by the Court?
 Powers of the commissioner: Order 26 Rule 16-18
 Whether the commissioner will be entitled to a Remuneration?
 What are the limitations on the commissioner?
 Receiver (Order 40)
o
 What is the purpose of the appointment of a receiver?
 What is the role of a receiver?
 Who can appoint a receiver?
 How does the court decide whether to appoint a receiver or not?
  Who can apply for the appointment of the receiver?
 Who can be appointed as a receiver?
 When can a receiver be appointed?
 What is the process of appointment of a receiver?
 What are the powers of the receiver?
 What are the duties of the receiver?
 What are the liabilities of a receiver?
 Will a receiver be entitled to remuneration?  
 Temporary Injunctions (Order 39)
 Summary Procedure (Order 37)
o
 What is a bill of exchange?
 Promissory notes
 Institution of summary suits
 Contents of plaint for summary procedure
 Detailed procedures
 Can a summary suit be tried after the institution of an ordinary suit on
the same cause of action?
 Setting aside decree in summary suits
 Appeals from Original Decree ( Section 96 to 99A; Order 41)
o
 Essentials of appealing cases
 Right to appeal
 One right to appeal
 No right to appeal
o First appeal
 Who may appeal?
 Appeal by one plaintiff against another plaintiff
 Appeal by one defendant against another defendant
 Who cannot appeal?
 The appeal against ex parte decree
 No appeal against consent decree
 No appeal in petty cases
 The appeal against Preliminary Decree
 The appeal against a dead person
 Forms of appeal
 Forum of appeal
 Appeals from Appellate Decrees (Section 100; Order 42)
o Nature and Scope
 Nature of the second appeal
 Scope of the Second Appeal
 Cases Laws
 The substantial question of law
 No letters patent appeal
  Forum of the second appeal
 Appeal from order
 Appeal from Appellate decree
 Appeal to the Supreme Court
 Grounds of Appeal
 Power of High Court to decide the issue of fact
 Procedure at hearing
 After hearing the appeal the appellate court may-
 Document to be submitted with the appeal
 Pending appeals
 Cases
 General Provisions relating to Appeals (Section 107,108)
o Reference to High Court (Section 113; Order 46)
 Nature and scope
 Conditions
 Who may apply?
 Power and duty of referring court
 Power and duty of the High Court
 Article 228 and Section 113
 Procedure at hearing
 Costs
 Review (Section 114; Order 47)
o ORDER XLVII
 CONDITIONS FOR APPLICABILITY
 WHO CAN FILE A “REVIEW”
 GROUNDS FOR REVIEW:
 Revision (Section 115)
o Meaning
 Nature, Scope and Object
 Who may file?
 Conditions for Revision
 Precedents
 No appeal lies
 Jurisdictional error
 Subordinate court
 Alternative remedy
 Limitations on revisional jurisdiction
 Suo moto exercise of power
 Interlocutory Orders
 Death of Applicant
 Doctrine of Merger
 Procedure of Revision
 Recording of Reasons
 Letters Patent Appeal
  Conversion of Revision into Appeal
 Law commission’s view on Revision
 Case laws
o Brijlal Ramjidas v. Govindram Gordhandas Seksaria(Judgement)
o Neeta vs. Shiv Dayal Kapoor & Others(Res sub-judice)
o Lowe v. Haggerty(Res judicata)
o Official Trustee vs Sachindra Nath(Jurisdiction and place of suing)
o Annapoorani Ammal vs G.Thangapolam(Appeals from Appellate Decree)
o A Sreenivasa Rao and Ors v. Govt of Andra Pradesh(Reference to High
Court)

Definitions (Sec. 2)

Decree, Judgement, Order

Decree 

The term decree is defined in Section 2(2) of Code of Civil Procedure, 1908.
A decree always follows judgement and is based upon a judgement. It is
divided into five types unlike judgement which is final in itself. A decree may
be final or preliminary. It is a formal declaration or adjudication and is
conclusive in nature. A decree is of three kinds namely, preliminary decree,
final decree and partly preliminary & partly final. A decree may be delivered
with an order. The decree contains the outcome of the suit and conclusively
determines the rights of the parties with regard to the issues in dispute in
the suit. After passing the decree, the suit stands disposed of since the
rights of the parties are finally determined by the court.

Deemed Decree 

A decree shall be deemed to include the rejection of a plaint and any

question within Section 144 of Code of Civil Procedure,1908 but shall not
include:

Any such sentence(adjudication) from which it appears that an appeal lies as

an appeal from an order, or any such order of discharge(dismissal) of
default.    
Kinds of Decrees 

According to Section 2(2) of the Code of Civil Procedure,1908 decrees are

divided into three categories:

Preliminary Decree

In general sense, the word preliminary means preparation for the main
matter, initial, introductory, preparatory. In a legal sense, a preliminary
decree is a decree where further proceedings have to take place before the
suit can be completely disposed of. It decides the rights of the parties in
respect to all or any of the matters of discussion but it does not completely
dispose of the suit. In such a decree the rights and liabilities of the parties
are stated leaving the actual result or decision to be worked out in future
proceedings. A preliminary decree is passed in those cases where the
proceedings are to be carried out in two different stages. The first stage is
when the rights of the parties are adjudicated and the second stage is when
those rights are implemented or executed.

Final Decree 

In general sense, the word ‘final’ means last, ultimate, conclusive or

decisive. In legal sense, a final decree is a decree which completely disposes
of the suit and settles all the questions in discussion between the parties and
nothing is left further for deciding thereafter. It is only said to be final when
such adjudication completely disposes of the suit.

Partly preliminary and partly final Decree

A decree is said to be partly preliminary and partly final when the court
decides two questions by the same decree. For instance, if the court passes
a decree in favour of one party along with a direction of inquiry for the other
party, the former part of the decree is final while the latter part is a
preliminary decree for which further proceedings have to take place. For
example, in a suit of possession of a property with company ‘C’, if the court
passes a decree of possession of the property in favour of the plaintiff and
directs an enquiry into the company ‘C’, then the former part of the decree is
final decree while the latter part is the preliminary decree.

The necessity of a Decree 

The Code of Civil Procedure requires the passing of a decree in all the suits.
A decree is based upon judgement and it also follows a judgement which is
the reason why it is an indispensable and essential requisite. The decree is
indispensable or an absolute requisite. It is an essential part of the ultimate
outcome of the suit. An appeal can be made against a decree and not
against a judgement. If the decree is absent an appeal cannot be ‘put in
motion’.

Contents of a Decree 

A decree always follows the judgement, coincide with it and contains:

1. The suit’s number – Every suit has a particular number and it should
be mentioned in the decree. 
2.  The names, description and registered addresses of the parties –
Every decree shall have the names of all the parties of that
particular suit, the proper description of the parties of the suit, and
the registered addresses of all the parties of the suit.
3. The particulars of the parties claims or defence – Every decree shall
contain the details of the claims and the defences the parties are
claiming as an outcome of the said suit.
4. The relief or the remedy granted to the aggrieved party – The
decree should in particular mention the relief granted to the
particular party as a remedy and not a reward.
5. The total amount of cost incurred in the suit-
1.   by whom; or
2.   out of what property; and
3.   in what portions are they paid or are to be paid.
6. The judgement’s date of pronouncement or delivery date of the
judgement – The decree should mention the date on which the
judgement was delivered followed by the decree.
7. The judge’s signature on the decree – The judge’s signature is an
essential and indispensable element of any decree. The signature of
the judge delivering the judgement is an essential requisite.

Drawing up of a Decree 
Rule 6A Order XX of Code of Civil Procedure,1908 states that a decree shall
be drawn within 15 days of the judgement. An appeal can be favoured or
preferred without filing a copy of a decree if it is not drawn within 15 days of
the judgement.

Decrees in Special cases

In a lawsuit for the recovery or process of regaining or repossession of

an immovable property(real estate), the decree shall include a
description of such property so that it is sufficient to recognise or
identify it.
In a decree for movable property(personality), it must mention the
exact amount of money to be paid as an alternative in case the
delivery is not made due to any reason either it be reasonable or
appropriate.
In a decree for payment of money, the Court may order that the
payment of decretal amount i.e., the  amount mentioned in the
decree shall be:
1. postponed which is delayed to a future date; or
2. made by installments with or without interests.
In a suit for the recovery or process of regaining or repossession of
immovable property, the Court may pass a decree- for possession or
gaining of property.
for past rents or mense profits. (mesne profits are the profits of an estate
received by a tenant in wrongful possession and recoverable by the landlord)
that is a final decree in respect of rent or mesne profits in accordance with
results of such enquiry as mentioned.

Rule 12A of the Code of Civil Procedure,1908 states that a decree for specific
performance of a contract for sale or lease of an immovable property which
can also be termed as real estate shall specify the exact period within which
the amount of money or other sum is to be paid by the purchaser or lessee.

Rule 13 of the Code of Civil Procedure,1908  states that the final decree shall
be passed or delivered in accordance with the result of preliminary enquiry
i.e., in a lawsuit for an account of any property either movable or immovable
and for its due administration under the decree of Court, before passing a
final decree, the court should pass a preliminary decree ordering accounts to
be taken and enquiries to be made. 
Rule 14 of the Code of Civil Procedure,1908 states a decree in a pre-emption
suit, it is a suit where the displacement of a lower jurisdiction’s laws when
they conflict with those of a higher jurisdiction, where the purchase money
has not been paid into Court, shall specify a particular day on or before
which the purchase money has to be paid and direct that on payment to
Court, the defendant shall deliver property to the plaintiff, but if the
payment is not made on a specific day, the lawsuit shall be dismissed with
costs. In cases the Court has settled upon rival claims to pre-emption, the
decree shall direct:

The claim or defence of each pre-emptor shall take effect proportionately if

the claims decreed are equal in degree.

The claim or defence of the inferior pre-emptor will not take place till the
superior pre-emptor fails to make the payment if the claims decreed are
different in degree.

In a lawsuit for dissolving of partnership or taking of partnership accounts,

the Court can pass a preliminary decree before passing a final decree
declaring the exact shares of all the parties, fixing of a particular day on
which the partnership shall become dissolved and directing the accounts to
be taken and other necessary actions to be done. In a lawsuit for accounts
between a principal person and agent, the Court can pass a preliminary
decree before passing a final decree directing the accounts that have to be
taken and it can also provide special directions in regards to the mode of
taking accounts as well. In a decree passed in a lawsuit for partition of
property either movable or immovable or for separate possession of share in
the property, The decree shall declare the rights of several parties interested
in that property but shall direct partition or separation to be made by
collector and in other cases of immovable property in case the estate is
assessed to the payment of revenue to the government. 

The Court shall pass a preliminary decree declaring all the rights of the
parties in estate and giving necessary directions and then the final decree is
passed, if separation or partition cannot conveniently be made without
further inquiry.

 A decree where the defendant has been allowed leave or start with a 
counterclaim against the initial claim of the plaintiff shall state with what
amount is due to the plaintiff and what amount is due to the defendant
thereafter.

Judgement 

The term Judgement is defined in Section 2(9) of the Code of Civil

Procedure, 1908. A judgement contains facts of the case, the issues
involved, the evidence brought by the parties, finding on issues (based on
evidence and arguments). Every judgement shall include a summary of the
pleadings, issues, finding on each issue, ratio decidendi and the relief
granted by the court. On a daily basis, numerous judgements are
pronounced and various cases are disposed of. Judgements play a very
important role in the working of our judicial system because they act as
precedents for cases to come in the near future. A judge in the judgement
pronounced, always states the reasons for such a decision.

Pronouncement of a judgement

The word pronouncement means to make an official public announcement.

Pronouncement of a judgement means that after the hearing is completed
i.e. after the Court has heard the pleadings of the parties, the judgement
shall be announced by the Judges in an open Court, either at once or at
some future day, after providing due notice to the parties or their learned
counsels.

If a judgement is not pronounced immediately then it must be pronounced

within 30 days from the date of the conclusion of hearing. However,
sometimes it so happens that due to exceptional and some extraordinary
reasons like a bank holiday, strike or some other situation it may be
delivered within 60 days from the conclusion of the hearing. It is not
mandatory for a judge to read out the whole judgement and it would be
enough if only the final order is pronounced. The judge shall put the date on
which the judgement was pronounced along with his signature. Rule 2 Order
XX of Code of Civil Procedure, 1908 provides a judge with the right to
pronounce the judgement which is already written but is not pronounced by
his predecessor.

After the Amendment Act of 1976, the time limit was provided between the
hearing of the arguments and the pronouncement of the judgement. Prior to
this amendment no time limit was provided as such. Such a time limit was
provided because there was indefinitely continuous imposition from all over
India.

Copy of the judgement

Once the judgement is pronounced the copies of that particular judgement

should be immediately made available to the parties on payment of costs as
specified, by the party applying for such copy, of such charges as may be
specified in the rules and orders made by the High Court (H.C.) Such a rule
is specified in Order XX Rule 6-B of the Code of Civil Procedure, 1908.

Contents of the judgement

According to Rule 4 Order XX of Code of Civil Procedure, 1908:

Judgements of a Court of Small Causes are satisfactory if they contain the

points for determination and the decision thereon.

Judgments of other Courts shall contain:

Summary of the pleadings which is a concise statement of the case;

Issues which are the points for determination;
Findings on each issue and the decision thereon;
Ratio decidendi (reasons for such a decision); and
The remedy, which is the relief granted.

Alteration of a judgement

Once a judgement is dated and signed by the judge it can only be altered or
amended if:

There are arithmetical or clerical errors. (clerical errors refer to the errors
made by clerks and arithmetical errors refer to errors made in numbers such
as addition, subtraction, multiplication and division). There are errors due to
accidental slips or omissions (these errors take place when some essential
element is left unnoticed) (Section 152) on review (Section 114).

Foreign Court, Foreign Judgement (Sec. 13)

The Indian Code of Civil Procedure, 1908 (CPC) lays down the procedure for
enforcement of foreign judgments and decrees in India. CPC, 1908 had
defined the following as-

Section 2(5) “foreign Court” means a Court situated outside India and not
established or continued by the authority of the Central Government.

Section 2(6) “foreign judgment” means the judgment of a foreign Court.

Nature and Scope of Foreign Judgments

Section 13 embodies the principle of res judicata in foreign judgments. It

embodies the principle of Private International law that a judgment delivered
by a foreign court of competent jurisdiction can be executed and enforced in
India.

Object of Recognizing Foreign Judgments

The judgment of a foreign court is enforced on the principle that where a

foreign court of competent jurisdiction has adjudicated upon a claim, a legal
obligation arises to satisfy that claim in the country where the judgment
needed to be enforced. The rules of private international law of each state
differ in many respects, but by the comity of nations certain rules are
recognized as common to civilized Jurisdictions. Through part of the judicial
system of each state these common rules have been adopted to adjudicate
upon disputes involving a foreign element and to enforce judgments of
foreign courts, or as a result of International conventions. Such a recognition
is accorded not as an act of courtesy but on consideration of basic principles
of justice, equity and good conscience. An awareness of foreign law in the
parallel jurisdiction would be a useful guideline in determining our notions of
justice and public policy. We are a Sovereign Nation within our territory but “
it is not derogation of sovereignty to take accounts of foreign law”.

“We are not provincial as to say that every solution of the problem is wrong
because we deal with it otherwise at home”.Therefore, we shall not brush
aside foreign judicial processes unless doing so, “would violate some
fundamental principle of justice & deep-rooted traditions of common weal”.

Jurisdiction of Foreign Courts

In Private International Law, unless a foreign court has jurisdiction in the
international sense, a judgment delivered by that court would not be
recognized in India. But it considers only the territorial competence of the
court over the subject-matter and defendant. Its competence or jurisdiction
in any other sense is not regarded as material by the court in this country.

Presumption as to foreign judgments

Section 14 states the presumption that an Indian court takes when a

document supposing to be a certified copy of a foreign judgment is
presented before it. The Indian Courts presume that a foreign Court of
competent jurisdiction pronounced the judgment unless the contrary
appears on the record, but by proving want of jurisdiction may overrule such
presumption.

Section 14. Presumption as to foreign judgments – The Court shall presume,

upon the production of any document purporting to be a certified copy of a
foreign judgment, that such judgment was pronounced by a Court to
competent jurisdiction, unless the contrary appears on the record; but such
presumption may be displaced by proving want of jurisdiction[6].

Conclusiveness of Foreign Judgments

Section 13 lays down the fundamental rules which should not be violated by
any foreign court in passing a decree or judgment. The decree or judgment
of foreign court will be conclusive except where it comes under any of the
clauses (a) to (f) of Section 13.

When foreign judgment is not conclusive-A foreign judgment shall be

conclusive as to any matter thereby directly adjudicated upon between the
same parties or between parties under whom they or any of them claim
litigating under the same title except,—

(a) Where it has not been pronounced by a Court of competent jurisdiction;

(b) Where it has not been given on the merits of the case;

(c) Where it appears on the face of the proceedings to be founded on an

incorrect view of international law or a refusal to recognize the law of India
in cases in which such law is applicable
(d) Where the proceedings in which the judgment was obtained are opposed
to natural justice;

(e) Where it has been obtained by fraud;

(f) Were it sustains a claim founded on a breach of any law in force in India.

Foreign Judgments when cannot be Enforced in India

Before enforcing a foreign judgment or decree, the party enforcing it must

ensure that the foreign judgment or decree must not fall under these 6
cases. If the foreign judgment or decree falls under any of these tests, it will
not be regarded as conclusive and hence not enforceable in India. Under
Section 13, there are six cases when a foreign judgment shall not be
conclusive. Six tests are discussed below.

Foreign Judgment not by a competent court

It is a basic fundamental principle of law that the judgment or order passed

by the court which has no jurisdiction is void. Thus, a judgment of a foreign
court to be conclusive between the parties must be a judgment pronounced
by a court of competent jurisdiction. Such judgment must be by a court
competent both by law of the state which has constituted it and in an
international sense and it must have directly adjudicated upon the matter
which is pleaded as Res judicata.

In the case of R.M.V. Vellachi Achi v. R.M.A. Ramanathan Chettiar, it was

alleged by the respondent that since he was not a subject of the foreign
country, and that he had not submitted to the jurisdiction of the Foreign
Court (Singapore Court), the decree could not be executed in India. The
Appellant, in defense of this argument, stated that the Respondent was a
partner of a firm which was doing business in Singapore and had instituted
various suits in the Singapore Courts. Therefore, the Respondent had
accepted the Singapore Courts jurisdiction. The Court held that it was the
firm which had accepted the jurisdiction of the foreign Court and the
Respondent, in an individual capacity, had not accepted the jurisdiction.
Thus, the High Court held that the decree against the Respondent was not
executable.
PROPOSITION

Under Section 13(a) of CPC, the following proposition may be laid

In case of actions-in-personam, a foreign court may pass an order or

judgment against an Indian defendant, who is served with the
summons but he remains ex parte. But it may be enforceable
against such Indian defendants, by fulfilling any of the following
conditions.
If the person is a subject of the foreign country in which the judgment
or decree has been obtained against him on prior occasions.
If the person is a resident in foreign country when the action is
commenced.
If a person selects the foreign Court for taking action in the capacity of
a plaintiff, in which he is sued later
If the party on being summoned voluntarily appears before the foreign
court
If by an agreement a person has contracted to submit himself to the
Court in which the judgment is obtained.

Foreign Judgments not on Merits

In order for a foreign judgment to operate as Res Judicata, it must have

been given on merits of the case. A judgment is said to have been given on
merits when after taking evidence and after applying his mind regarding the
truth or falsity of the case.

The Actual test for deciding whether the judgment has been given on merits
or not is to see whether it was merely passed as a matter of course, or by
way of penalty of any conduct of the defendant, or is based upon a
consideration of the truth or falsity of the plaintiff”s claim.

In the case of Gurdas Mann v. Mohinder Singh Brar,he Punjab & Haryana
High Court held that an ex parte judgment and decree which did not show
that the plaintiff had led evidence to prove his claim before the Court, was
not executable under Section 13(b) of the CPC since it was not passed on
the merits of the claim.

PROPOSITION
Under Section 13(b) of CPC the following proposition may be laid

A judgment or decree passed by a Foreign Court against an Indian

defendant, who has remained ex-parte, may not be enforceable against him,
unless it can be shown that the said judgment was passed after investigation
into the plaintiff’s claim.

Foreign Judgments against International or Indian Law

A Judgment which is contrary to the basic fundamental rules of International

law or a refusal to recognize the law of India where such law is applicable is
not conclusive. Where a suit instituted in England on the basis of contract
made in India, the English court erroneously applied English law, thus, the
judgment of the court is covered by this clause as the general principle of
Private International Law is that the rights and liabilities of parties to a
contract are governed by the place where the contract is made (lex loci
contractus).[12]

In the case of I & G Investment Trust v. Raja of Khalikote, a suit was filed
under the English Jurisdiction to avoid the consequences of the Orissa Money
Lenders Act. The Court held that the judgment was passed on an incorrect
view of the international law. The Court further observed that, although the
judgment was based on the averment in the plaint that the Indian law did
not apply, however, there was no “refusal” to recognise the local laws by the
Court.

PROPOSITION

Under Section 13(c) of CPC, the following proposition may be laid

A judgment passed by a foreign Court upon a claim for immovable property,

situated in the Indian territory may not be enforceable since it violates
International Law. A judgment passed by the foreign Court, where before a
contrary Indian law had been shown, but the Court had refused to recognize
such law, then that Judgment or decree may not be enforceable, except
where the proper law of contract is the foreign law.

Foreign Judgments opposed to the principle of Natural Justice

It is the essence of a judgment of court that it must be obtained after due
observance of the judicial procedure i.e., the court rendering the judgment
must observe the minimum requirements of natural justice. It must be
composed of impartial persons, who must act in a fair and justified manner,
without bias, and in good faith, it must give reasonable notice to the parties
to the dispute and each party should be given equal opportunity to present
their case. A judgment which suffers from such infirmities on the part of a
judge will be regarded as a nullity and the trial “coram non judice”

In the case of Lalji Raja & Sons v. Firm Hansraj Nathuram, the Supreme
Court held that just because the suit was decreed ex-parte, although the
defendants were served with the summons, does not mean that the
judgment was opposed to natural justice.

PROPOSITION

Under Section 13(d) of CPC, the following proposition may be laid The
foreign court must follow the principle of natural justice while delivering the
judgment. Judgement must be impartial, given fairly, moreover, the parties
to the dispute should be given appropriate notice of the initiation of legal
proceedings. Equal opportunity of presenting their case, in order to avoid
any allegation of not fulfilling the principles of natural justice in case the
judgment or decree comes to the Indian court for enforcement. Unless this
is done the judgment or decree passed by a foreign Court may violate the
Principles of Natural Justice.

Foreign judgment obtained by fraud

It is a well settled principle of Private International Law that if foreign

judgments are obtained by fraud, it will not operate as res judicata.

It has been said “Fraud and Justice never Dwell together” (fraus et jus
nunquam cohabitant); or “ Fraud and deceit ought to benefit none” (fraus et
dolus nemini patrocinari debent).

In the case of Satya v. Teja SingH, the Supreme Court held that since the
plaintiff had misled the foreign court as to its having jurisdiction over the
matter, although it could not have had the jurisdiction, the judgment and
decree was obtained by fraud and hence inconclusive.
In S.P. Chengalvaraya Naidu v. Jagannath, Supreme Court held that it is a
well settled proposition of law that a judgment or decree obtained by playing
fraud on the court is a nullity and non est in the eyes of law.

PROPOSITION

Under Section 13(e) of CPC, the following proposition may be laid -Where
the plaintiff misleads the Foreign court and the judgment or decree is
obtained on that basis, the said Judgment may not be enforceable, however,
if there is some error in the judgment then the Indian courts will not sit as a
Court of appeal to rectify the mistake or error.

Foreign Judgments founded on breach of Indian Law 

When a law in force in India is wrongly construed so as to form the

reasoning behind a judgment delivered by a foreign court, in such cases the
enforceability of the foreign judgment in Indian courts will be under
question.

China Shipping Development Co. Limited v. Lanyard Foods Limited, wherein

the High Court held that a petition for winding up of an Indian company
would be maintainable on the basis of judgment of foreign Court. In this
case, the foreign company delivered cargo to the Indian company in
compliance with requests made by the Indian company and in the process
the foreign company had incurred certain liabilities towards third parties and
it had to pay certain amount in legal proceedings and therefore, in terms of
the letter of indemnity issued by the respondent Indian company, the
foreign company claimed the amount from the respondent Indian company,
which denied its liability and therefore the foreign petitioner company
initiated legal proceedings against the Indian company in the English Courts
as provided in the Letter of Indemnity. 

The respondent Indian company did not file defence and therefore the
English Court passed an ex-parte order awarding a certain amount in favor
of the petitioner foreign company on consideration of evidence and on the
merits of the claim filed by the foreign company. By a notice issued under
sections 433 and 434 of the Companies Act, 1956, the petitioner foreign
company called upon the respondent Indian company to pay the amount due
under the order of the English Court.
After the respondent Indian company failed to honour the amount, the
petitioner Foreign Company filed a petition for winding up of the Indian
company. In the above circumstances since the records of the case
manifestly revealed that the respondent Indian company was unable to pay
its debts, the petition for winding up was admitted vide order dated
4.4.2007 under sections 433 and 434 of the Companies Act, 1956.

PROPOSITION

Under Section 13(f) of CPC, the following proposition may be laid -A

judgment passed by a foreign court, which breaches any law in force in India
may not be enforceable, except where it is based on a contract having a
different “proper law of the contract”.

Enforcement of Foreign Judgments

A foreign Judgment which is conclusive and does not fall within section 13
(a) to (f), may be enforced in India in either of the following ways.

By instituting execution proceedings

A foreign Judgment may be enforced by proceedings in execution in certain

specified cases mentioned in Section 44-A of the CPC.

Section 44A – Execution of decrees passed by Courts in reciprocating

territory[20].-(1) Where a certified copy of a decree of any of the superior
courts of any reciprocating territory has been filed in a District Court, the
decree may be executed in India as if it had been passed by the District
Court.

(2) Together with the certified copy of the decree shall be filed a certificate
from such superior court stating the extent, if any, to which the decree has
been satisfied or adjusted and such certificate shall, for the purposes of
proceedings under this section, be conclusive proof of the extent of such
satisfaction or adjustment.

(3) The provisions of section 47 shall as from the filing of the certified copy
of the decree apply to the proceedings of a District Court executing a decree
under this section, and the District Court shall refuse execution of any such
decree, if it is shown to the satisfaction of the Court that the decree falls
within any of the exceptions specified in clauses (a) to (f) of section 13.

Explanation I: “Reciprocating territory” means any country or territory

outside India which the Central Government may, by notification in the
Official Gazette, declare to be a reciprocating territory for the purposes of
this section, and “Superior Courts”, with reference to any such territory,
means such courts as may be specified in the said notification.

Explanation II: “Decree” with reference to a superior Court means any

decree or judgment of such court under which a sum of money is payable,
not being a sum payable in respect of taxes or other charges of a like nature
or in respect of a fine or other penalties, but shall in no case include an
arbitration award, even if such an award is enforceable as a decree or
judgment.

Moloji Nar Singh Rao vs Shankar Saran, Supreme Court held that a foreign
judgment which does not arise from the order of a superior court of a
reciprocating territory cannot be executed in India. It ruled that a fresh suit
will have to be filed in India on the basis of the foreign judgment.”

Therefore Under Section 44A of the CPC, a decree or judgment of any of the
Superior Courts of any reciprocating territory are executable as a decree or
judgment passed by the domestic Court. The judgment, once declared, will
be executed in accordance with section 51 of the Code. Thereafter, the court
may order measures such as attachment and sale of property or attachment
without sale, and in some cases arrest (if needed) in enforcement of a
decree. This is done by the methods discussed below.

By instituting a suit on such foreign judgment

Where a judgment or decree is not of a superior court of a reciprocating

territory, a suit has to be filed in a court of competent jurisdiction in India on
such foreign judgment. The general principle of law is that any decision of a
foreign court, tribunal or any other quasi-judicial authority is not enforceable
in a country unless such decision is embodied in a decree of a court of that
country. In such a suit, the court cannot go into the merits of the original
claim and it shall be conclusive as to any matter thereby directly adjudicated
between the same parties. Such a suit must be filed within a period of 3
years from the date of judgment[23].

In Marine Geotechnics LLC v/s Coastal Marine Construction & Engineering

Ltd, the Bombay High Court observed that in case of a decree from a non-
reciprocating foreign territory, the decree-holder should file, in a domestic
Indian court of competent jurisdiction, a suit on that foreign decree or on the
original, underlying cause of action, or both.

However, in both the cases, the decree has to pass the test of Section 13
CPC which specifies certain exceptions under which the foreign judgment
becomes inconclusive and is therefore not executable or enforceable in
India.

Foreign Award

An award passed by foreign arbitrator is enforceable in a country where it

was made and can also be enforced in India. Courts may refer to CPC or any
other statute while considering the procedure to be followed for enforcement
of foreign awards under Foreign Awards (Recognition and Enforcement) Act
(45 of 1961)

Effect of Foreign Judgment

A foreign judgment is conclusive for any matter adjudicated between the

parties. Such judgment is conclusive and would create Res judicata between
the same parties or between parties under whom they or any of the claims.

Limitation period for Enforcement of Foreign Judgments

As per the provisions of the Code, foreign judgments from reciprocating

territories are enforceable in India in the same manner as the decrees
passed by Indian courts. The Limitation Act, 1963 prescribes the time limit
for execution of a foreign decree and for filing of a suit in the case of
judgment passed by foreign court.

Three years, commencing from the date of the decree or where a date
is fixed for performance; in case of a decree granting a mandatory
injunction; and
 Twelve years for execution of any other decree commencing from the
date when the decree becomes enforceable or where the decree
directs any payment of money or the delivery of any property to be
made at a certain date, when default in making the payment or
delivery in respect of which execution is sought, takes place.
A judgment obtained from a non-reciprocating territory can be enforced by
filing a new suit in an Indian court for which a limitation period of 3 years
has been specified under the Limitation Act, 1963 commencing from the
date of the said judgment passed by foreign court.

Other definitions: Affidavit, Suit, Plaint, Written Statement

Affidavits – Order 19

Affidavits are dealt under Order 19 of the Code. It is a sworn statement

made by the person who is aware of the facts and circumstances which have
taken place. The person who makes and signs is known as ‘Deponent’. The
deponent makes sure that the contents are correct and true as per his
knowledge and he thereby concealed no material therefrom. After signing
the document, the affidavit must be duly attested by the Oath Commissioner
or Notary appointed by the court of law.

The person who gives attestation to the affidavit shall make sure that the
sign of the deponent is not forged. The affidavit shall be drafted as per the
provisions of the code. It must be paragraphed and numbered properly.

Even though the “affidavit” has not been defined in the code, it basically
means “a sworn statement in writing made specifically under oath or
affirmation before an authorized officer or Magistrate.”

Essentials

There are some basic essentials which are required to be fulfilled while
submitting the affidavit in the court:

It must be a declaration by a person.

It shall not have any inferences, it shall contain facts only.
It must be in the first person.
It must be in writing.
 It must be statements which are taken under oath or affirmed before
any other authorized officer or a Magistrate.
Contents of affidavit

As per Rule 3, an affidavit shall contain only those facts to which the
deponent is aware of as true to his personal knowledge. However,
interlocutory applications can be filed wherein he can admit his belief.

Evidence on affidavit

As per section 3 of the Evidence Act, affidavits are not considered as

evidence. When there is a need to prove the facts, oral evidence is normally
taken into consideration by the court. However, Rule 1 Order 19 is invoked
by the Court when it finds that it is necessary to make an order for any
particular fact which may be proved by affidavit. If a person provides
evidence under the affidavit then the opposing counsel has the right to
cross-examine or reply-in-affidavit.

Further, the person who is making an affidavit shall put on those facts only
to which he has true personal knowledge. If he gives a statement, not to his
personal knowledge then in such case he shall mention the true source. The
counsel shall advise the deponent to make sure that he puts facts which he
knows rather than what he believes.

The court can reject the affidavit if it is not properly verified and not in
conformity with the rules of the code. At the same time the court can also
give an opportunity to the party to file the affidavit properly.

In the interlocutory applications like interim injunctions, the appointment of

receiver, attachment of property wherein the rights of the parties are not
determined conclusively, can be decided on the basis of the affidavit.

False affidavit

Under Section 191, 193, 195, 199 of IPC,1860, filing a false affidavit is an
offence. Giving a lenient view will undermine the value of the document and
it will harm the proceedings and will provide no justice to the parties.
Criminal contempt of court proceedings can be initiated by the court against
the person who files false affidavits in the court of law. Strict actions are
taken against public officials who files false affidavits.

As per section 193 of the IPC:

a person who intentionally gives false evidence or fabricates false

evidence during a judicial proceeding, he shall be punished with
seven years of imprisonment and fine;
and whoever intentionally gives or fabricates false evidence in any
other case, shall be punished with imprisonment of either description
for a term which may extend to three years, and shall also be liable
to fine.

Meaning of suit

The word suit has not been defined anywhere in the Code, but it is a
proceeding which is commenced by presentation of a plaint. In Hansraj
Gupta and Ors. vs. Official Liquidators of the DehraDun-Mussoorie Electric
Tramway Co.Ltd., the Privy Council has defined the expression “suit” as a
civil proceeding instituted by presentation of a suit.

In Pandurang Ramchandra vs. Shantibai Ramchandra, the Supreme Court

has stated suit is to be understood to apply on any proceeding in a court of
justice by which an individual pursues that remedy which the law affords.

Plaint

A Plaint is a legal document that contains the content of any civil suit which
shows the Plaintiff’s claim after filing suit. The plaintiff is the first step of the
Plaintiff in the form of a legal document for the commencement of suit and it
shows what a Plaintiff wants from that suit. The concept of a plaintiff is
mentioned in the Civil Procedure Code. Through the help of the plaintiff, the
plaintiff narrates or describes the cause of action and related information
which is considered as essential from the viewpoint of the suit.

In the case of the plaintiff, the cause of action consists of two divisions, first
is the legal theory (the factual situation based on which the plaintiff claims
to have suffered) and second is the legal remedy that the plaintiff seeks
from the court. A plaint is considered an important concept because it is the
foremost and initial stage to initiate any lawsuit and helps to find a civil court
of appropriate jurisdiction.

Order VII of the Code of Civil Procedure deals, particularly with plaint. In
Order VII of CPC, there are many different rules which deal with different
constituents of plaint. Rules 1 to 8 deal with the particulars of the plaint.
Rule 9 of CPC deals with how the plaint will be admitted and after that Rule
10 to 10-B talks about the return of the plaint and the appearance of
parties. And the main Rules i.e 11 to 13 deal with the rejection of the plaint
and in which circumstances the plaint can be rejected.

Section 26 of the Code of Civil Procedure states “Every suit shall be

instituted by the presentation of a plaint or in such other manner as may be
prescribed.” This section clearly shows that plaint is very much necessary for
the establishment of a suit before the civil or commercial court.  

Necessary Contents of A Plaint

A plaint is a legal document that contains a lot of necessary contents in the

absence of which, it cannot be considered as a plaint. The contents
necessary for a plaint are mentioned in Rules 1 to 8 of Order VII of CPC.
These are mentioned below:

Plaint should contain the name of the commercial or civil court where a
suit will be initiated.
Plaint should contain details of the plaintiff such as the name, address,
and description.
Plaint should contain the name, residence, and description of the
defendant.
When a plaintiff has some defects or problems in health or any type of
disability, the Plaint should contain a statement of these effects.
Plaint should contain the facts due to which cause of action arises and
where the cause of action arises it should also be mentioned.
Plaint should not only mention facts due to which cause of action
arises but also those facts which help in recognizing the jurisdiction.
Plaint should also contain about that relief which the plaintiff seeks
from the court.
When the plaintiff is ready to set off a portion of his claim, the Plaint
should contain that amount which has been so allowed.  
 Plaint should contain a statement of the value of the subject-matter of
suit not only for the purpose of jurisdiction but also for the purpose
of court-fees.At last, the content that should be on plaint is the
plaintiff verification on oath.
This shows that the plaint is a necessary component for the successful
initiation of suits in commercial or civil courts and plays a very important
role throughout the suit. Some additional particulars which were not
mentioned above include the following: Plaintiff shall state the exact amount
of money to be obtained from the defendant as given under Rule 2 of order
VII whereas Rule 3 of order VII of CPC states that when the plaint contains
subject matter of immovable property, then the property must be duly
described.

Important Concepts

Res Sub-Judice and Res Judicata (Sec. 10,11)

Nature, Scope and Objective

The principle of res sub-judice prevents the court from proceeding with the
trial of any suit in which the matter in issue is directly or substantially the
same with the previously instituted suit between the same parties and the
court where the issue is previously instituted is pending has the power to
grant the relief sought.

This rule is applicable to the trial of the suit and not the institution. It does
not restrict the court from passing interim orders like injunction or stay.
However, it applies to revisions and appeals.

The purpose behind this rule is to prevent multiplicity of cases in courts. It is

also sought to prevent the plaintiff from getting two separate decisions from
different courts in his favour or two contradictory judgements. It also
ensures to protect the litigant from unnecessary harassment. The policy of
law is to restrict the plaintiff to one legislation, thus obviating the possibility
of two conflicting verdicts by one and the same court in respect of the same
relief.

Conditions
Section 10 of the Civil Procedural Code, 1908 deals with the conditions
required to apply the principle of res sub judice. The conditions in the
process of application of res sub-judice are:

Where the matter in issue is same

Section 10 clearly states that the matter in issue in both the suits must be
directly or substantially be the same.In other words there must be two suits
one that is previously instituted and another that is subsequently
substituted. The issues of both the suits should be the same to get the
benefit of this principle, it is not sufficient if only one or two issues are
common. In the circumstances where the entire issues are not the same, the
court may exercise its power under Section 151 and stay the trial in a
subsequent suit or the trial of the suit may be consolidated. The power of
courts to stay the trial under Section 151 is discretionary in nature and can
be exercised only when there is an abuse of process of court and if it defeats
the ends of justice.

According to Indian Evidence Act, 1872 “matter in issue” are of two kinds:

Matter directly and substantially in issue– Here “directly” means immediately

i.e. without any intervention. The word “substantially” implies essentially or
materially.

Matter collaterally and incidentally in issue– It is just contrary to the matter

directly or substantially in issue.

Where the parties in suits are same

The two suits should have the same parties or their representatives.

Where the title of the suit is same

The title of both the suits for which the parties are litigating should also be
same.

Where the suit must be pending

The former suit must be pending in the court while the latter suit is
instituted. The word pending is for the previously instituted suit, where the
final decision has not been arrived at.
 In a competent court
Section 10 also specifies that the former suit must be pending before a court
which is competent to carry out the trial. If the former suit is pending before
an incompetent court, no legal effects can flow from it.

Illustrations:

‘X’ and ‘Y’ decide to enter into a contract for the sale of machines. ‘X’ is the
seller and ‘Y’ is the purchaser. Y defaulted in paying the amount of the sale
to X. X first filed a suit for recovery of the entire amount in Bangalore.
Subsequent to this, X filed another suit at Bombay High Court demanding
Rs. 20,000 as outstanding balance. In X’s suit Y took the defence that X’s
suit should be stayed since both the suits are on similar issue. However, the
Bombay court held that since X’s first suit and the second suit have similar
issues similar to the first suit, the subsequent suit is liable to be stayed.

‘P’ was an agent in Patna who agreed to sell goods in Odisha to ‘M’. ‘P’ the
agent then filed a suit for balance of accounts in Patna. ‘M’ sues the agent ‘P’
for accounts and his negligence in Odisha; while the case was pending in
Patna. In this case, Patna court is precluded from conducting trial and can
petition Odisha Court to direct a stay of proceedings in Patna Court.

The moment the above conditions are satisfied, a court cannot proceed with
the subsequently instituted suit since the provisions contained in Section 10
are mandatory and the court cannot exercise its discretion. The order of stay
can be made at any stage of the proceedings.

However, Section 10 takes away the power of the court to examine the
merits of the case thoroughly. If the court is satisfied with the fact that the
subsequent suit can be decided purely on legal point, it is open for the court
to decide in such a suit.

Test

The test of applicability for Section 10 is whether the decision in a former

given suit would operate as res judicata(decided case) in the subsequent
suit. It this happens, then the latter suit must be stayed. This can also be
inferred from S.P.A Annamalay Chetty vs. B.A Thornbill.
Suit pending in foreign court

The explanation clause of Section 10 clearly provides that there is no

limitation on the power of an Indian court to try a subsequent instituted suit
if the previously instituted suit is pending in a foreign suit. This also means
that the cases can be carried on simultaneously in two courts.

Inherent power to stay

The word inherent has very wide meaning which includes an inseparable part
of something or an attribute or quality which is permanent and essential. It
is something which is intrinsic and attached to a person or object. Therefore,
inherent powers are the powers of the courts which are inalienable i.e.,
something which can be separated or taken away from the courts and they
exercise it in order to provide complete justice to the parties.

Even where the provisions of Section 10 do not strictly apply, a civil court
has inherent power under Section 151 to stay a suit to achieve justice.
Additionally courts can also consolidate different suits between the same
parties in which the matter of issue is substantially the same. In Bokaro and
Ramgarh Ltd. vs. State of Bihar and Another(1962) the matter in issue was
regarding the ownership of a property. The court in this case used its power
and consolidated different issues having the same matter.

Consolidation of suits

The objective behind Section 10 is to avoid two contradictory decisions in the

same matter by different courts. To overcome this the courts can pass an
order of consolidation of both the suits. In the case of Anurag and Co. and
Anr. vs. Additional District Judge and Others, it was explained that
consolidation of suits is ordered under Section 151 for meeting the ends of
justice as it saves the party from a multiplicity of cases, delays and
expenses. The parties are also relieved from producing the same evidence at
two different places.

Effect of contravention

Any decree passed in contravention of Section 10 is not null and therefore

cannot be disregarded completely. It is to be clearly understood here that it
is only the trial and not the institution of the subsequent suit which is barred
under this section. But this right which is given in favour of parties can be
waived by them. Hence, if the parties in a suit decides to waive their rights
and ask the court to proceed with the subsequent suit, they cannot
afterwards challenge the validity of the subsequent proceedings.

Interim orders

Interim orders are the temporary orders which are passed for a limited
duration just before the final order. An order of stay under Section 10 does
not take away the power of the court to pass interim orders. Therefore, the
courts can pass such interim orders as it thinks fit like attachment of
property, injunction etc.

Res Judicata meaning

Res means “subject matter” and judicata means “adjudged” or decided and
together it means “a matter adjudged”.

In simpler words, the thing has been judged by the court, the issue before a
court has already been decided by another court and between the same
parties. Hence, the court will dismiss the case as it has been decided by
another court. Res judicata applies to both civil and criminal legal systems.
No suit which has been directly or indirectly tried in a former suit can be
tried again.

Res Judicata example

‘A’ sued ‘B’ as he didn’t pay rent. ‘B’ pleaded for the lessening of rent on the
ground as the area of the land was less than the mentioned on the lease.
The Court found that the area was greater than shown in the lease. The area
was excess and the principles of res judicata will not be applied.

In a case, ‘A’ new lawsuit was filed in which the defendants requested that
the Court dismiss the lawsuit with a plea of res judicata. She was barred
from bringing a claim of res judicata because her previous claim was
dismissed for fraud. The Court said that the defence of res judicata must be
proved by evidence.

Principle of Res Judicata

The principle of res judicata seeks to promote the fair administration of
justice and honesty and to prevent the law from abuse. The principle of res
judicata applies when a litigant attempts to file a subsequent lawsuit on the
same matter, after having received a judgment in a previous case involving
the same parties. In many jurisdictions, this applies not only to the specific
claims made in the first case but also to claims that could have been made
during the same case.

Prerequisites for Res Judicata

A judicial decision by proficient court or tribunal,

Final and binding and
Any decision made on the merits
A fair hearing
Earlier decisions right or wrong are not relevant.  

Nature and Scope of Res Judicata

Res judicata includes two concepts of claim preclusion and issue preclusion.
Issue preclusion is also known as collateral estoppel. Parties cannot sue each
other again after the final judgment on the basis of merits has reached in
civil litigation. For example, if a plaintiff wins or loses a case against the
defendant in the case say A, he cannot probably sue the defendant again in
case B based on the same facts and events. Not even in a different court
with the same facts and events. Whereas in issue preclusion it prohibits the
relitigation of issues of law that have already been determined by the judge
as part of an earlier case.

The scope has been decided in the case of Gulam Abbas v. State of Uttar
Pradesh. In this case the court incorporated the rules as evidence as a plea
of an issue already tried in an earlier case. Judgment of this case was
difficult as the judges should apply res judicata. It was decided that res
judicata is not exhaustive and even if the matter is not directly covered
under the provisions of the section it will be considered as a case of res
judicata on general principles.   

Rationale

The principle of res judicata is founded upon the principles of justice, equity,
and good conscience and it applies to various civil suits and criminal
proceedings. The purpose of this principle was to inculcate finality into
litigation.

Failure to Apply

When a  court fails to apply Res Judicata and renders a divergent verdict on
the same claim or issue and if the third court faces the same issue, it will
apply a “last in time” rule. It gives effect to the later judgment and it does
not matter about the result that came differently the second time. This
situation is typically the responsibility of the parties to the suit to bring the
earlier case to the judge’s attention, and the judge must decide how to apply
it, whether to recognize it in the first place.

Doctrine of Res Judicata

The double jeopardy provision of the Fifth Amendment to the U.S.

Constitution protects people from being put on a second trial after the case
has been judged. So the doctrine of res judicata addresses this issue and it
bars any party to retry a judgment once it has been decided.

Section 11 of the Civil Procedure Court incorporates the doctrine of res

judicata also known as “ rule of conclusiveness of judgment”. The doctrine of
res judicata has been explained in the case of Satyadhyan Ghosal v. Deorjin
Debi. The judgment of the court was delivered by Das Gupta, J. An appeal
was made by landlords who attained a decree for ejectment against the
tenants who were Deorajin Debi and her minor son. However, they have not
been yet able to get possession in execution soon after the decree was
made. An application was made by the tenant under Section 28 of the
Calcutta Thika Tenancy Act and alleged that they were the Thika tenants.
This application was resisted by the landlords saying they were not Thika
Tenants within the meaning of the Act.

The tenants moved to the High Court of Calcutta under the Civil Procedure
Code. The court applied the principle of res judicata to achieve the finality in
litigation. The result came that the original court, as well as the higher court,
can proceed for any future litigation on the basis that the previous decision
was correct.

The doctrine of res judicata says –

 That no person should be disputed twice for the same reason.
It is the State that decides there should be an end to a litigation
A judicial decision must be accepted as the correct decision.

Constructive Res Judicata

The rule of constructive res judicata in Section 11 of the Civil Procedure

Code is an artificial form of res judicata. It provides that if a plea has been
taken by a party in a proceeding between him and the defendant he will not
be permitted to take pleas against the same party in the following
proceeding with reference to the same matter.  It is opposed to public
policies on which the principle of res judicata is based. It would mean
harassment and hardship to the defendant. The rule of constructive res
judicata helps in raising the bar. Hence this rule is known as the rule of
constructive res judicata which in reality is an aspect of augmentation of the
general principles of res judicata.

In the case of State of Uttar Pradesh v. Nawab Hussain, M was a sub-

inspector and was dismissed from the service of D.I.G. he challenged the
order of dismissal by filing a writ petition in the High Court. He said that he
did not get a reasonable opportunity of being heard before the passing of
the order. However, the argument was negative and the petition was
dismissed. He again filed a petition on the ground that he was appointed by
the I.G.P. and had no power to dismiss him. The defendant argued that the
suit was barred by constructive res judicata. However, the trial court, the
first appellate court as well as the High Court held that the suit was not
barred by the doctrine of res judicata. The Supreme Court held that the suit
was barred by constructive res judicata as the plea was within the
knowledge of the plaintiff, M and he could have taken this argument in his
earlier suit.

Res Judicata and Estoppel

Estoppel means the principle which prevents a person from asserting

something that is contrary to what is implied by a previous action. It deals in
Section 115 to Section 117 of the Indian Evidence act. The rule of
constructive res judicata is the rule of estoppel. In some areas the doctrine
of res judicata differs from the doctrine of estoppel –
 Estoppel flows from the act of parties whereas res judicata is the result
of the decision of the court.
Estoppel proceeds upon the doctrine of equity, a person who has
induced another to alter his position to his disadvantage can not turn
around and take advantage of such alteration. In other words, res
judicata bars multiplicity of suits and estoppel precludes multiplicity
of representation of cases.
Estoppel is a rule of evidence and is enough for the party whereas res
judicata expels the jurisdiction of a court to try a case and prevents
an enquiry at the threshold (in limine).
Res judicata forbids a person averring the same thing twice in the
litigations and estoppel prevents the person from saying two
opposite things at a time.
According to the principle of res judicata, it presumes the truth of
decision in the former suit while the rule of estoppel precludes the
party ton deny what he or she has once called truth.

Res judicata and Res Subjudice

The doctrine of res judicata and res subjudice varies in some factors –

Res sub judice applies to a matter that is pending trial whereas res
judicata applies to a matter adjudicated or arbitrated.
Res subjudice prohibits the trial of a suit that is pending decision in a
previous suit whereas res judicata prohibits the trial of a suit that
has been decided in a former suit.

Res judicata and Issue Estoppel

A person who has once been tried by a court of proficient jurisdiction for an
offence and convicted of that offence cannot be tried again for the same
offence as long as acquittal operates. This is given under Section 300(1) of
the Civil Procedure Court. A party cannot proceed to reopen the case if the
matter is finally decided by a competent or proficient court. This principle
applies to criminal proceedings and it is not allowed in the stage of the same
proceedings to try a person for an offence for which he has been acquitted.

Res Judicata and Stare Decisis

Res judicata means a case that has already been decided or a matter settled
by a decision or judgment. Res judicata and stare decisis both are related to
matters of adjudication (arbitration). Stare decisis rests on legal principles
whereas res judicata is based on the conclusiveness of judgment. Res
judicata binds the parties while stare decisis operates between strangers and
bins the courts to take a contrary view on the law already decided. Stare
decisis is mostly about legal principle while res judicata relates to
controversy.

What is Res Judicata and Collateral Estoppel?

The doctrine of collateral estoppel says that an issue or case that has been
litigated cannot be litigated again. For collateral estoppel to apply, the
following requirements are required.

The issue in the first and second case is the same; The party against whom
the doctrine is invoked had the full opportunity to litigate the issue; That
party actually litigated the issue; The issue litigated must have been
necessary to the final judgment.

The doctrine of res judicata bars the re-litigation of a claim that has already
been litigated. There are four factors that must be satisfied for res judicata
to apply:

A previous case in which the same claim was raised or could have
been raised;
The judgment in the prior case involved the same parties or their
privies;
The previous case was resolved by a final judgment on the merits;
The parties should have a fair opportunity to be heard.
For example, Abela sued John who is a supervisor for sexually harassing her
and due to that, she had to quit her job. Abela provided the evidence by
producing emails written by him. But John argued that the emails were not
real but the judge said that the emails were real and could be submitted as
evidence. After a few months after the trial, Abela filed a lawsuit against her
employer as he did not take any action about the complaint. If the emails
that were submitted by Abela, were not genuine the issue would fall under
collateral estoppel. The issue of authenticity of the emails was already
decided in the previous case and hence the court cannot redecide the issue.
Res Judicata landmark cases

Brobston v. Darby Borough

In the case of Brobston v. Darby Borough,  Brobston was the plaintiff who
was injured while driving a vehicle on a public highway in the Borough of
Darby. Due to a transit company that was occupying the street, the steering
wheel of the machine was pulled by the driver’s hand. This resulted in injury
to the complainant.

 A suit was filed against the street railway in the Court of Philadelphia to
recover damages. It was proved that negligence was there on the part of
both the parties also known as contributory negligence. The judgment was
passed in favour of the defendant. Later action was again brought against
the same defendant based on the same cause of action and against the
same transit company. The judgment in the first proceeding was brought to
the attention of the court. The plaintiff admitted that Brobston was the same
person who was the plaintiff in the action brought earlier in Philadelphia.

The action was brought for injuries occurring at the same place and the
verdict of the court was in favour of the defendant. The facts and cause of
action were the same but the only difference was the name of the
defendant. The legal question involved was what are the rights of the
plaintiff in this case. The court refused the facts which were proven by the
counsel. Hence a nonsuit was entered because of the earlier judgment. The
plaintiff should have been permitted to call the witness but no merit was
seen.

These conditions were entered in the record to enable the Court to pass the
legal question involved. The plaintiff had the right to recover under the
circumstances. The counsel made an offer to prove the facts which the court
had refused to do. A complaint was made that the plaintiff must have been
permitted to call the witness to establish the matters. The facts were
essential for the legal determination of liability before the court and consent
of both the parties were needed.

Henderson v. Henderson
Henderson v Henderson was a case in which the English Court confirmed
that a party can not raise a claim in litigation which was raised in the
previous suit. In 1808, two brothers Bethel and Jordan Henderson became
business partners and they operated in both Bristol and Newfoundland. In
1817, their father died on a date that was not recorded. The wife of Jordan
Henderson was appointed as the administrator and she brought legal
proceedings in the Court. She also brought separate proceedings and
claimed that he had failed to provide an account as executor of the will. The
Court of Appeal held that there was no estoppel by convention and that the
proceedings were an abuse under the rule in Henderson v Henderson. The
Court of Appeal held that just one of Mr Johnson’s claims should be struck
out for a reflective loss.

Johnson v. Gore Wood and Company

Johnson v Gore Wood and Company is a leading UK case in which the House
of Lords decided the case relating to litigating issues that had already been
determined in the previous litigation.  Mr Johnson was a director and
majority shareholder in a lot of companies, including Westway Homes
Limited and Gore Wood & Co were a firm of lawyers who acted for the
companies and also occasionally worked for Mr Johnson in his personal
capacity.

In 1998, Gore Wood was acting for the company and served notice to
acquire land from a third party upon the lawyers for that third party. The
third-party alleged that this was not service, and refused to convey the land.
Legal proceedings followed and ultimately the company succeeded.
However, because the third party was penurious and was funded by legal
aid, the wood company was unable to regain the full amount of its losses
and legal costs.

Accordingly, the wood company issued proceedings against Gore Wood for
negligence and alleged that their losses would have been entirely prevented
if Gore Wood had properly served the original notice on the third party
instead of the third party’s lawyers.

Gore Wood ultimately settled those claims, and the settlement agreement
included two provisions that were later proved that they were important.
Firstly, it included a clause stating that any amount which Mr Johnson
wished to subsequently claim against Gore Wood in his personal capacity
would be limited to an amount, excluding interest and costs. The
confidentiality clause contained an exception which permitted the settlement
agreement to be referred which Mr Johnson brought against Gore Wood.

Mr Johnson then issued proceedings against Gore Wood in his personal

name, and Gore Wood made applications to dismiss some or all of the claims
on the basis that it was an abuse of process to seek to litigate again the
issues which had already been compromised in the agreement.

Res Judicata landmark cases in India

Daryao v. State of Uttar Pradesh

In the historic case of Daryao v. State of Uttar Pradesh, the doctrine of res
judicata is of universal application. The Supreme Court of India placed the
doctrine of res judicata on a still broader foundation. In this case, petitioners
filed a writ petition in the High Court of Allahabad under Article 226 of the
Constitution. But the suit was dismissed. Then they filed independent
petitions in the Supreme Court under the writ jurisdiction of Article 32 of the
Constitution. The defendants raised an objection regarding the petition by
asserting that the prior decision of the High Court would be operated as res
judicata to a petition under Article 32. The Supreme Court dismissed and
disagreed with the petitions.

The court held that the rule of res judicata applies to a petition under Article
32 of the Constitution. If a petition is filed by the petitioner in the High Court
under Article 226  of the Constitution and it is dismissed on the basis of
merits, it would be operated as res judicata to bar a similar petition in the
Supreme Court under Article 32 of the Constitution.

Devilal Modi vs. Sales Tax Officer

In the leading case of Devilal Modi vs. STO, B challenged the validity of an
order of assessment under Article 226. The petition was dismissed on the
basis of merits. The Supreme Court also dismissed the appeal that was
made against the order on the basis of merits. B again filed another writ
petition in the same High Court against the same order of assessment. This
time the petition was dismissed by the High Court. The Supreme Court held
that the petition was barred by the principle of res judicata.

Avtar Singh v. Jagjit Singh

A peculiar problem arose in the case of Avtar Singh v. Jagjit Singh. A filed a
civil suit, a contention regarding the arbitration of the Court was taken by B.
The objection was sustained and the plaint was returned to the plaintiff for
the presentation. The Revenue Court did not have any jurisdiction when A
approached the Revenue Court so he returned the petition. Once again A
filed a suit in the Civil Court. B contended that the suit was barred by the
doctrine of res judicata.

Mathura Prasad v. Dossabai N.B. Jeejeebhoy

In the case of  Mathura Prasad v. Dossibai N.B. Jeejeebhoy, it was held that
res judicata constitutes between the parties to the previous case and cannot
move again in collateral proceedings. Generally, a decision by a competent
court operates as res judicata even on point of law. However, a question of
law which is not related to facts that gives rise to the right, will not operate
as res judicata. When the cause of action is different or the law is different,
the decision has been already altered by an authority. The decision made
will be declared as valid and res judicata will not operate in the subsequent
proceeding.

Exceptions to res judicata

Cases where Res Judicata does not apply-

The principle of res judicata does not apply in the Writ of Habeas Corpus as
far as High Courts are concerned. Article 32 gives power to the Supreme
Court to issue writs and some power is given to High Courts under Article
226. The Courts need to give proper reasoning while applying the doctrine of
res judicata. There are some exceptions to res judicata which allow the party
to challenge the validity of the original judgment even outside the appeals.
These exceptions are usually known as collateral attacks and are based on
jurisdictional issues. It is not based on the wisdom of the earlier decision of
the court but the authority to issue it. Res judicata may not be applicable
when cases appear that they need relitigation.
Instalment Supply private limited vs. Union of India

In cases of income tax or sales tax, the doctrine of res judicata does not
apply. It was discussed in the case of Instalment Supply private limited vs.
Union of India where the Supreme Court held that assessment of each year
is final for that year and it will not govern in the subsequent years. As it
determines the tax only for that particular period.

Bandhopadhya and others v. Union of India and others

In the case of P. Bandhopadhya and others v. Union of India and others, The
appeal was made in the Bombay High Court and the appellants asserted that
they will be entitled to receive an amount as damages. The Supreme Court
bench held that the appellants were not entitled to receive damages which
were pensionary benefits under the Pension Rules 1972. They were entitled
to receive benefits as the case was barred by the principle of res judicata.

In the case of Public Interest Litigation, the doctrine of res judicata does not
apply. As the primary object of res judicata is to bring an end to litigation so
there is no reason to extend the principle of public interest litigation.

Dismissal of special leave petition in limine does not operate as res judicata
between the parties. A fresh petition will not be filed either under Article 32
or under Article 226 of the Constitution.  

Beliram and Brothers v. Chaudhari Mohammed Afzal

In the case of Beliram and Brothers v. Chaudhari Mohammed Afzal, it was

held that a minors suit cannot be brought by the guardian of the minors.
However, it was brought in collaboration with the defendants and the decree
obtained was by fraud within the Indian Evidence Act, 1872 and it will not
operate res judicata.

Jallur Venkata Seshayya v. Thadviconda Koteswara Rao

In the case of Jallur Venkata Seshayya vs. Thadviconda Koteswara Rao, a

suit was filed in the Court so that certain temples are called public temples.
A similar suit was dismissed by the Court two years ago and the plaintiff
contended that it was negligence on the part of the plaintiffs (of the previous
suit) and therefore the doctrine of res judicata can not be applied. However,
the privy council said that the documents were suppressed which means that
the plaintiff in the earlier suit had bona fide intention( something that is
genuine and there is no intention to deceive).

Can Res Judicata be waived?

In the case of P.C. Ray and Company Private Limited v. Union of India it was
held that the plea of res judicata may be waived by a party to a proceeding.
If a defendant does not raise the defence of res judicata then it will be
waived. The principle of res judicata belongs to the procedure and either
party can waive the plea of res judicata. The court can decline the question
of res judicata on the ground that it has not been raised in the proceedings.

How to defeat Res Judicata?

The doctrine of res judicata would not apply to the case until the conditions
are met. The essential condition for the applicability is that the succeeding
suit or proceeding is founded on the same cause of action on which the
former suit was founded. The principle of res judicata can be defeated when
the party has filed the suit on a reasonable ground for example in case a
public interest litigation has been filed there is no reason not to extend the
doctrine of res judicata. The PIL has been filed with a bona fide intention and
the litigation cannot end.

Criticism to Res Judicata

Res judicata can also be applied to judgment that may be contrary to law.
The doctrine of res judicata has been used for a long time and it encloses
the general effect of one judgement upon another trial or proceeding. It
includes matters not only those of bar but also those matters which should
be litigated. For example, if a case has been dismissed on a specific ground
by a court of law or equity and it is not deemed as a final judgment and
technically res judicata will apply but it is not justified. If the chancellor has
denied equitable relief on a principle but it was held by the court that the
plaintiff is barred from proceeding as a legal remedy. Most of the equity
cases involve res judicata and do not get beyond collateral estoppel. As it
raises the difficulty of overlapping more than the failure to litigate issues.
The title to real estate and the right to collect rent depended upon one and
the same construction of a will. In an interpleader over the rents, A got the
decree. B appealed, without supersedeas, and secured a reversal, but,
before his appeal was decided, A had sued him in ejectment, invoking the
decree, and recovered a judgment for the real estate. B did not appeal from
this judgment, but, after the reversal of the decree, he sued A in ejectment
for the land, relying upon the reversal.

Restitution (Sec. 144)

Doctrine of restitution

The doctrine of restitution implies to brings the aggrieved party to the

original position where the benefit of the erroneous judgment of the court is
received by the other party who was not entitled to such benefit.  Restitution
is not a new concept and Section 144 merely gives statutory recognition to
this principle. Section 144 of CPC deals with the application for restitution.

Section 144 states that:

When a decree or order of the Court has been:

varied/reversed in any appeal, revision or other proceedings;

is set aside/ modified in any suit instituted for that purpose.

The Court that passed the decree/order will grant restitution on receiving an
application of the party entitled to the benefit

The court in the case of Mahjibhai Mohanbhai Barot vs Patel Manibhai

Gokalbhai held that an application for restitution is an application for
execution of a decree.

The Supreme Court in the case of Lal Bhagwant Singh vs Rai Sahib Lala Sri
Kishen Das held that the party who received the benefit of the erroneous
judgment is by law under an obligation to make restitution to the other party
for his loss.   
The same view was reiterated by the court in the case of Binayak Swain vs
Ramesh Chandra Panigrahi, the doctrine of restitution means that, on
reversal of a decree or order, an obligation is imposed by law on the party
who has received the benefit of the erroneous decree to make restitution to
the other party for his loss. This obligation automatically arises when the
decree or order is reversed or modified by the Court. It necessarily carries
with it the right of restitution for all the things that have been done under
the erroneous decree. The Court while making restitution is under a duty to
restore the parties, as far as possible, at the time when the erroneous action
of the Court displaced them.

The Apex Court in the case of Union Carbide Corporation v. Union of

India held that restitution is a principle of equity and is subject to the
Court’s discretion. Section 144 of CPC doesn’t grant any new substantive
right to the party not already obtained under the general law. The Court is
obliged to ensure that no one goes back with a feeling that he was impaired
by an act which he did on the faith of the Court’s order.

Actus curiae neminem gravabit

The Latin maxim actus curiae neminem gravabit means the act of court
should not affect anyone and is founded upon the principle of equity. The
Court is obliged to ensure that no one is endured by its order and it should
not pass any order to the prejudice of any person. The apex court reiterated
the maxim of actus curiae neminem gravabit in the case of Odisha Forest
Development Corporation v. M/s Anupam Traders.    

Conditions

In applying for restitution, the following conditions must be fulfilled:

The decree/order must have been varied or reversed in any appeal, revision
or is set aside or modified. The party in respect of the reversed or modified
decree/order must be entitled to benefit by way of restitution or otherwise.
The relief claimed by the party must be properly consequential of the
variation, reversal, setting aside or modification of the decree/order.

The Orissa High Court in Banchhanidhi Das vs Bhanu Sahuani laid down

certain principles to be followed for the application of restitution:
There should be an erroneous judgment passed by the court. The party to
the record must have received the benefit of the erroneous judgment. The
party applying for restitution must show that as a consequence of the
erroneous judgment or decree, a party received the benefit.

The erroneous judgment or decree must have been reversed in appeal.

Who may apply?

A person may apply for restitution who:

Was a party to the order or decree being varied, reversed, set aside, or
modified. Is entitled to any benefit by way of restitution or otherwise in
respect of the order or decree being varied, reversed, set aside, or
modified.    

Against whom restitution may be granted?

The court may grant restitution against the party who has wrongly received
the benefit under the erroneous decree or order of the court. The party
receiving the benefit is under an obligation to make restitution to the party
for what he has lost.

Who may grant restitution?

The court which has passed the original decree or order may grant
restitution on an application being made to it by the party who is entitled to
benefit from such reversed or varied decree or order.

What remedies can the court can grant?

The court under Section 144 can make any orders as a consequence of a
decree or order being varied, reversed, modified, set aside for the refund of
costs and for payment of interest, damages, compensation, and mesne
profit.

Nature of proceeding

The nature of proceeding under Section 144 is execution proceedings. The

process to get an order or decree into effect is called execution proceedings.
Extent of restitution

Section 144 is not exhaustive but inclusive. Even if a matter does not fall
within the scope of Section 144, the court has the power to grant restitution
on its discretion.   

Inherent power to grant restitution

Under Section 151, a court has an inherent power to make such order as
may be necessary for meeting the ends of justice or to prevent the abuse of
the process of Court other than the power to grant restitution under Section
144. The power of the court to grant restitution is not confined only to
Section 144, the court has an inherent power to grant the remedy of
restitution where Section 144 does not apply. There are different
circumstances in which the court can order to restore the status quo ante
(previously existing state of affairs) to meet the ends of justice.

It was held in K.N. Krishnappa vs T.R. Gopalkrishna Setty that under Section

151 C.P.C, the inherent powers of the Court can be invoked for restoring the
parties to the position in which they were, prior to the execution.

Bar of Suit

Section 144(2) bars a separate suit instituted for obtaining any remedy if
restitution or other relief could be obtained by making an application under
Section 144(1).

Caveat (Sec. 148A)

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. Even Though
CPC does not define caveat in the case of Nirmal Chand v. Girindra
Narayan, the court defined caveat as a warning given by an individual to the
court that no order or judgment shall be passed without giving notice or
without hearing the caveator. The person who files a caveat is called the
Caveator and the person who has instituted a suit or is likely to do so is
called caveatee. The main object of caveat is to ensure that the court does
not pass ex parte orders and that the interests of the caveator are
protected. Caveat also reduces the burden of court and brings an end to the
litigation as it reduces the multiplicity of proceedings. As the purpose of the
caveat was to save the cost and convenience of the court, in Kattil Vayalil
Parkkum Koiloth v. Mannil Paadikayil Kadeesa Umma, the court held that no
caveat can be lodged by a total stranger to the suit.

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:

During an ongoing suit or litigation and in that the application is already

been made or is expected to be made; 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. However, as it is already discussed that a
caveat cannot be lodged by a person who is a total stranger to the case and
the same principle was laid down in Kattil Vayalil Parkkum Koiloth v. Mannil
Paadikayil Kadeesa Umma. To conclude, this clause is substantive in nature
and caveat may be filed by any person claiming a right to appear before the
Court.

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. However, in Deepak Khosla v. Union of India & Ors, the court
held that Section 148A of the code applies to civil proceedings only and
caveat cannot be made against petitions made under the Criminal Procedure
Code or petition made under Article 226 of the Constitution of India.

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. The register of caveat contains the date
of caveat, name, and address of caveator, name of the plaintiff, the name of
the defendant and date and a number of proceedings filed as anticipated by
the caveator. A caveat is always filed with a copy, the postal proof and an
application explaining to the court that a copy of the caveat has been sent to
all the parties and thus the court need not do the same. Even though the
court fees of filing a caveat varies for different courts, it is generally a
nominal amount of less than INR 100. The rules and format of the caveat
are similar for most of the courts.

While filing a petition of caveat in Delhi High Court, follow the below-
mentioned steps:

Support the caveat petition with an affidavit. Both petition and the affidavit
should be signed by the caveator; Apart from this, a vakalatnama, impugned
order (if any), and proof of service of notice of caveat is also to be submitted
to the Court.

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:

Name of the caveator;

Address of the caveator where the notice would be sent;
 The name of the court where such caveat is filed;
The number of the suit and the number of the appeal if applicable;
Brief details about suit or appeal likely to be filed;
Name of the probable plaintiffs or appellants and the respondents.
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.

The Reserve Bank of India Employees association & anr. V. The Reserve

Bank of India & Ors, a caveat petition was filed by the appellants
apprehending an injunction order by the respondent. For the caveat filed,
the plaintiffs were served with a notice and all other relevant papers or
documents. They were also informed that the application will be moved on
28-10-1980. However, the application was not heard on the said date,
rather heard later on 30-10-1980. The petitioners argued that as the court
failed to provide the plaintiff with the notice of the order, the judgment
would be void and null, in accordance with clause (3) of Section 148A. The
court disagreed with the appellants and held that caveat gives the right to
be informed about hearing of the case and not takes away the right of a
court to deliver a judgment or order on the merits of the case. Mere lodging
of caveat does not deprive the court of its power to deliver orders or
judgments.

However, the precedent set in the above case was overruled in C.G.C
Slddalingappa v. G.C Veeranna, wherein the applicant on filing a caveat was
served with a notice. However, the case was decided on a later date without
giving notice to the appellant about the same. The court held that the
provision regarding notice under Section 148A(3) is mandatory and non-
compliance of the same defeats the very object of 148A, thus the order
passed is void and null.

Right and duties

When a caveat is filed, it gives certain rights and duties to the caveator,
applicant as well as the court. Let’s consider all these rights and duties
separately:

Rights and duties of the caveator

Clause (2) of the section provides that when a caveat has been lodged under
sub-section (1), the caveator shall serve a notice of the caveat to the person
by whom the application has been made or is expected to be made under
sub-section (1). The caveator at the time of lodging the suit says that either
there is a suit in the present and in which I expect an application is going to
be made or there is an application existing in the suit and I want to be
represented, or he says that a suit is going to be filed in the future and in
that suit an application will be made and in that application I want to be
represented. So whenever such an application comes, the caveator has the
right to be informed. However, before he becomes entitled to notice, he has
to give a notice saying that I have lodged a caveat to the person from whom
he is expecting such an application to be made. In other words, the caveator
has to serve notice by registered post, on the applicant who is going to file
this application or who has already filed an application, saying that whenever
you file an application, you are bound to give notice.

Rights and duties of court

The duty of the court arises, once the caveat is lodged and notice is served
upon the applicant. Clause (3) of the Section provides that after a caveat
has been lodged and thereafter any application is filed in any suit or
proceeding, the court has to serve a notice to the caveator. This means that
once the caveator has filed the caveat saying I want to be represented and
after that, an actual application has been filed within the next 90 days, in
that case, the court will serve a notice to the caveator, informing him that
the application that was expected by him has been filed and the caveator
thereby has the right to be heard before the court.

Rights and duties of the applicant

In addition to the court giving notice, the applicant is also required to serve
a notice to the caveator, informing that an application in regard to the
caveat filed has been made. Clause (4) of the section, directs the applicant
to provide a copy of the application made by him along with any other
document or paper that may have been fled by him in support of his
application to the caveator. The Court will not move forward with the
application unless an affidavit is submitted by the applicant that a notice has
been served to the caveator.

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.

Common mistakes made while filing a caveat

Some of the common mistakes made while filing caveat are as follows:

The caveat is often filed in support of an application, it is important to

remember that caveat can be made only against an application; Caveator
forgets to serve a notice to the applicant, which is mandatory under Section
148A of CPC. Caveators often claim that the order or judgment was incorrect
because the notice was given, even after the expiration period. It is
important to remember that after 90 days, a fresh caveat needs to be filed.

Inherent power of Courts (sec – 148-153B)

Meaning of ‘inherent’ is existing in something as a permanent, absolute,

inseparable, essential or characteristic attribute. Inherent powers of courts
are those powers which may be applied by the court to perform full and
complete justice between the parties before it. It is the duty of the Courts to
serve justice in every case, whether given in this code or not, brings with it
the important power to do justice in the absence of a definite or separate
provision. This power is said to be the inherent power that is maintained by
the court, though not conferred. Section 151 of the Civil Procedure Code
deals with the inherent powers of the court.

Provisions of Section 148 to 153B of CPC

The law relating to inherent powers of Court is mentioned in Section 148 to
Section 153A of the Civil Procedure Code, which deals with the exercise of
powers in different situations. Following are the provisions of Inherent
powers of Courts:

Section 148 and Section 149 deals with grant or enlargement of time;
Section 150 deals with the transfer of business;
Section 151 protects the inherent powers of the courts; and
Section 152, 153 and Section 153A deals with amendments in
judgments, decrees or orders or in separate proceedings.

Enlargement of time

Section 148 of the CPC states that where any term is fixed or awarded by
the Court for the doing of any act provided by CPC, it is the discretionary
power of the Court that the Court may enlarge such period from time to
time, even though the term originally fixed or awarded may have departed.

In simple words, when a term is fixed by provision for the doing of any act,
the Court has the power to extend such period up to 30 days. This power is
exercisable in the deficiency of any specific provision to the contrary which
reduces or rejects or withholds the period. The power is limited to the
extension of the time fixed by it and is of a discretionary nature.

Payment of court fees

According to Section 149 of CPC, “Where the entire or a portion of any fee
commanded for any certificate by the law for the time being in force relating
to court-fees has not been met, the Court may, in its discretion, at any step,
permit the person by whom such fee is payable, to pay the whole or part as
the case may be, of such court-fee; and upon such payment, the document,
in regard of which such fee is payable, shall have the same force and result
as if such fee had been paid in the initial situation.”

It permits the court to allow a party to make up for the lack of court fees
due on a complaint or notice of appeal etc., even after the expiry of the
limitation period for filing of the lawsuit or appeal, etc. Payment of the
expected court fee is compulsory for any document imputable with court-fee
to be presented in the court. If the necessary court fee is paid within the
time set by the court, it cannot be negotiated as time-barred. Such payment
made within the time fixed by the court retrospectively validates a faulty
document. The power of the court is discretionary and must be exercised
only in the importance of justice.

Transfer of business

According to Section 150 of CPC, “Save as otherwise granted, where the

business of any Court is assigned to any other Court, the Court to which the
business is so assigned shall have the same authority and shall make the
same duties as those sequentially presented and forced by or under this
Code upon the Court from which the business was so assigned.”

For example- When the business of a court A is transferred to any other

court B, the court B will exercise the same power or perform the same duties
given or commanded by CPC upon the transfer court.

Section 151 of CPC

Section 151 deals with “Saving of inherent powers of Court.” This Section
states that ‘Nothing in CPC shall be considered to restrict or otherwise affect
the inherent power of the Court to make such orders as may be important
for the ends of justice or to limit abuse of the method of the Court.’ It is not
obligatory for the court to wait for the law made by parliament or order from
the higher judiciary. Court has discretionary or inherent power to make such
an order which is not given in terms of laws for the security of justice or to
check misuse of the method of the Court.

The scope of exercising of Section 151 of CPC can be represented by some

cases as follows:

The court may recheck its orders and resolve errors;

Issuance of provisional sanctions when the case is not included by
order 39 or to place alongside an ‘ex parte’ order;
Illegal orders or orders passed without jurisdiction can be set-aside;
Subsequent events in the case can be taken into consideration by the
court;
Power of Court to continue trial ‘in camera’ or prevent disclosure of its
proceedings;
The court can erase remarks made against a Judge; and
 The court can improve the suit and re-hear on merit or re-examine its
order.

Ends of justice

In the case of Debendranath v Satya Bala Dass, the meaning of “ends of

justice” was explained. It was held that “ends of justice” are solemn words,
also there’s words that are not merely a polite expression as per juristic
methodology. These words also indicate that Justice is the pursuit and end of
all law. However, this expression is not vague and indeterminate notion of
justice according to laws of the land and statutes.

The Court is allowed to exercise these inherent powers in cases like- to

recheck its own order and correct its error, to pass injunction in case not
included by Order 39, and an ex parte order against the party, etc.

Abuse of process of the court

Section 151 of the CPC provides for the exercise of inherent powers to check
the infringement of the process of the court. Abuse of the powers of the
court which happens in unfairness to the party needs to get relief on the
ground that the act of a court shall not prejudice anyone. When a party
practices fraud on the court or on a party to a proceeding, the remedies
have to be provided on the basis of inherent power.

The word ‘abuse’ is said to occur when a Court uses a method in doing
something that it is never expected to do is the perpetrator of the said abuse
and there is a failure of justice. The injustice done to the party must be
given relief on the basis of the doctrine of actus curiae neminem gravabit
(an act of the court shall prejudice no one). A party to a case will become
the perpetrator of the abuse in cases when the said party does acts like
obtaining benefits by functioning fraud on the Court or a party to the
proceedings, prompting the multiplicity of proceedings, etc.

Section 152 of CPC deals with the “Amendment of judgements, decrees, and
order.” According to Section 152 of CPC, the Court has the power to change
(either by own actions or on the application of any of the parties) written or
arithmetical mistakes in judgments, decrees or orders or faults arising from
an unexpected lapse or imperfection.
Section 153 deals with the “General authority to amend.” This Section
empowers the court to amend any fault and error in any proceedings in suits
and all required improvements shall be made for the purpose of arranging
raised issues or depending on such proceeding.

Section 152 and 153 of the CPC makes it clear that the court may set correct
any blunders in their experiences at any time.

Power to amend decree or order where an appeal is summarily dismissed

and place of the trial to be deemed to be open Court are defined under
Section 153A and 153B of CPC,1908.

Limitation

The exercise of inherent powers carries with it certain barriers such as:

They can be applied only in the deficiency of particular provisions in the

Code; They cannot be applied in dispute with what has been expressly given
in the code;

They can be applied in rare or exceptional cases; While operating the

powers, the court has to follow the method shown by the legislature; Courts
can neither exercise jurisdiction nor entrust in them by law; To abide by the
principle of Res Judicata i.e., not to open the issues which have already been
decided finally; To pick a mediator to make an award afresh; Substantive
rights of the parties shall not be taken away; To limit a party from taking
proceedings in a court of law; and To set apart an order which was valid at
the moment of its issuance.

Execution of Judgement and Decree (Order 21)

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 CPC

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:

The court of the first instance;

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

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

If the judgment-debtor carries on business, or resides or personally works

for gain, within the jurisdiction of such Court; 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;

If the decree directs delivery or sale of immovable property situated outside

the jurisdiction of the Court which passed the same; 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.

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.

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  provision yields the following
features:

The decree which has to be executed should be of an Indian Court and it

should be for execution in a foreign territory.

The Central Government should have established the transferee court in

such foreign territory. 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.

Execution of decree at more than one place

There is no provision in the Code which prevents a decree-holder from

executing a decree simultaneously at more than one place against the
property of the judgment-debtor.

In Prem Lata Agarwal vs Lakshman Prasad Gupta & Ors, Supreme Court
observed that “simultaneous execution proceeding in more than one place is
possible but the power shall be used in a restricted manner, in exceptional
cases by imposing proper terms so that the judgment debtors do not face
any hardship because of several executions are being allowed to be
proceeded with at the same time.” Therefore, simultaneous execution
proceedings are not without jurisdiction or illegal.

Moreover, as per Section 39 of the Code, simultaneous execution of a decree

is permissive in nature as it provides for execution of a decree either by the
Court of first instance or by the Court to which it is sent for execution.

Procedure in execution

Section 51 to 54 of the Code talks about the procedure in execution.

Section 51
The section states the jurisdiction and power of the court in executing a
decree. An application for execution of the decree can either be oral or
written. The court may execute decree as per the mode of implementation
prayed by the decree-holder or as the court deems fit.

Mode of executing decree

By delivery of any property (movable or immovable) specifically

decreed.
By sale of the property with or without the attachment of the property.
If the property is situated within the jurisdiction of the court then it
has the power to attach the property.
By arrest and detention. However, this mode should not be exercised
without giving a reasonable opportunity to the judgment-debtor, in
the form of a show-cause notice as to why he should not be
imprisoned.

Execution by appointing a receiver

If any other mode apart from the ones mentioned in clause(a) to (c) needs
to be used in the execution of a decree then clause(e) comes into play.

Section 52

This section deals with the cases where the decree is passed against the
legal representative of the judgment-debtor (deceased). So long as the
property of the deceased remains in the hands of a legal representative, a
decree can be executed against the property, if it is for the payment of
money out of the property of the deceased and if the decree has been
passed against the party as the legal representative of the deceased person.

In a situation where the property which is in the possession of the

judgement-debtor came in the hands of the legal representative and it has
not been duly applied by him, the court will enforce the execution of the
decree against him as if the decree was to the extent passed against him
personally.

Section 53
The Section states that when a property is liable for payment of a debt of a
deceased ancestor and it is in the hands of a son and descendant, then the
property will be deemed to be of the deceased which has as his legal
representative come into the hands of the son or other descendants.

Section 54

When a decree has been passed for partition or for the separate possession
of a share of an undivided estate for the payment of revenue to the
government, this section comes into play. The partition of the estate or
share needs to be made by the collector,  but if the collector denies making
the partition of the revenue paying property, then the civil court can do so.
To attract the provisions of this section, the plaintiff asking for the division of
government revenue is not deemed as an essential condition.

Powers of the transferor court

Once a court which has passed a decree and transferred it to another court
of competent jurisdiction, it would cease to have jurisdiction over that
decree and it cannot execute the decree. Then, only the transferee court can
entertain an application for execution.

Powers of the transferee court

Under Order 21 Rule 8 of the Code, if a decree under the provisions of

section 39 has been sent for execution to another district, it may be
executed by either the district court to which it was sent or by a subordinate
court which has competent jurisdiction, to which the district court may refer
it.

Section 42 provides for the powers of the transferee court and states that
the Court to which a decree has been sent for execution shall have the same
powers in execution of such decree as if it had been passed by itself.

The Court has the power to punish the persons who cause obstructions in
the execution of the decree and the power shall be exercised by the court as
if the decree has been passed by it. The main object of giving such powers
to the transferee court is to ensure that the judgment-debtor pays the
money or gives such other thing to the decree-holder as would be directed
by the decree.
The Court will have the following powers, namely:—

To send the decree for execution to another Court under section 39.
To enforce execution of a decree against the legal representative of
the deceased judgment-debtor under section 50.
To order attachment of a decree.
However, the court to which a decree is sent for execution will not have the
power to order execution at the instance of the transferee of the decree and
the power to grant leave to execute a decree passed against a firm against
any person, other than a person referred to in Rule 50 of Order XXI.

Powers of executing court

The section states the jurisdiction and power of the court in executing a
decree. An application for execution of the decree can either be oral or
written. The court may execute decree as per the mode of implementation
prayed by the decree-holder or as the court deems fit.

Mode of executing a decree

By delivery of any property (movable or immovable) specifically decreed.

By sale of the property with or without the attachment of the property. If the
property is situated within the jurisdiction of the court then it has the power
to attach the property.

By arrest and detention. However, this mode should not be exercised

without giving a reasonable opportunity to the judgment-debtor, in the form
of a show-cause notice as to why he should not be imprisoned.

Execution by appointing a receiver.

If any other mode apart from the ones mentioned in clause(a) to (c) needs
to be used in the execution of a decree then clause(e) comes into play.

Jurisdiction and Place of Suing (Sec. 15 to 20)

Meaning of jurisdiction
In general meaning, Jurisdiction is the power of the Court to take the
cognizance of an offence and to determine the cause of action.

According to Black’s Law dictionary Jurisdiction means “A court’s power to

decide on a case or issue a decree.”

The jurisdiction was defined in the case of Hirday Nath vs  Ram Chandra.
The High Court of Calcutta stated that jurisdiction may be defined as judicial
power of Court to hear and determine the cause and adjudicate upon it.

Jurisdiction is decided mainly on the basis of:-

Pecuniary value
Local limits of Court
The subject matter of Court
So the Court before taking the cognizance of offence, the following points
needs to be taken into consideration:-

The pecuniary value of the suit

The nature of the case
The territorial limits of the court
It is not only sufficient that forum must have an authority to deal with the
matter or that the court has a pecuniary jurisdiction or the court has a local
jurisdiction but the court must be competent enough to grant the relief in
such matter.

Jurisdiction of Civil Court (Section 9)

The word civil is not defined in section 9 itself. According to Dictionary “civil
rights is private rights and remedies that are different from the criminal and
political”. The word “nature”  indicates the identity or essential character of a
person or thing. So, we can draw the definition of suits of civil nature means
that the suit in a dispute relating to private rights and the suit must not be
related to a political or criminal matter.

The civil court shall have jurisdiction to try all the suits except the suit which
is impliedly or expressly barred.
A suit which is related to the right to property or suit in which office is
contested is of civil nature suit, notwithstanding that such right may depend
entirely on the decisions of questions as to religious ceremonies or rites. It is
immaterial whether the fees to the office are attached or not, or whether
such an office is attached to a particular place or not.

The suit which is expressly barred means the suit which is barred by any
statute or any other law for the time being in force. The legislature has an
option to bar the jurisdiction of the civil court with respect to a particular
class of suit keeping itself with the ambit of the power conferred on the
Constitution of India. The establishment of the tribunal has taken away the
jurisdiction of the civil court with regard to the subject matter that is allotted
to the tribunal on the first instance, however, if any questions related to law
raised, or any provision of the act so created the tribunal can be looked into
by the civil court.  The civil court has no jurisdiction over the matter in which
court under the Code of Criminal Procedure, Revenue Court has exclusive
jurisdiction, or matter is dealt with special tribunal dealt under special
statutes. example Motor Accidents Claims Tribunal, Cooperative Tribunal.

A suit is impliedly barred when it is barred by either the general principle of

law or general conduct of law. The basic purpose of barred impliedly is that
the court should not deal with the matter which causes injurious to the
public or which is against the public will.

In the case of P.M.A Metropolitan vs Moran Mar Marthoma [2],

The Supreme Court observed that:-

The phrases used in section 9 has a positive and negative meaning

The earlier part has a wider sense as it covers all the matter of civil
nature; on the other hand, the latter part has a wider sense as it
excludes the matter which is impliedly or expressly barred.
The two explanations mentioned in Section 9 expresses the legislative
intentions.
It cast an obligation on the court to exercise the jurisdiction for the
enforcement of private rights
No court is at discretion to refuse the matter which falls under this
section
 It is mandatory to take the cognizance of matter because the word
“shall” is used which means that it is a mandatory section.
In the case of  Shankar Narayanan Potti vs K. Sreedevi

The Supreme Court held that the ‘Civil Court has inherent jurisdiction in all
types of civil matter as per Section 9 of CPC unless the suit is expressly or
impliedly barred.”

This means that Legislature can exclude the jurisdiction of the civil court by
inserting a provision or clause in any Act itself.

In the case of State of A.P VS Manjeti Laxmikanth Rao, the court held that
for the purpose of constructing the test to determine the exclusion of civil
court it is necessary to look into the intent of the legislature to exclude the
jurisdiction. It means that the test is done to determine whether there is any
reason for the exclusion of jurisdiction and if there is any reason, to further
find out whether the just reason is justified or not. Although justification is
not subjected to judicial review. Once the court satisfies itself of the reason,
then it needs to determine whether the Act which excludes the jurisdiction
provides an alternative remedy for the same or not. An alternative remedy
must be in regard to such function which civil court must exercise in absence
of such exclusion and would be empowered to pass any order which the civil
court in similar circumstances would have passed.

In the case of Bar Council of West Bengal vs A. Austin. The High Court of

Calcutta states that when the statute which bars the jurisdiction does not
provide an alternative remedy then the jurisdiction of the civil court cannot
be excluded.

In the case of Balawwa vs Hasanabi

If a part of the suit is excluded from the jurisdiction of civil court then it is
not necessary that the entire suit cannot be instituted in the civil court.

In the case of Shri Panch Nagar Parak vs Purushottam Das. If there are no
express provisions in any statute the court needs to look into the purpose,
scheme and relevant provisions of the Act in order to determine implied
exclusion of the jurisdiction of a civil court. Section 15 to 20 deals with the
place of suing.
There are three kinds of jurisdiction to determine the place of suing:-

Territorial
jurisdictions
Pecuniary jurisdictions
Subject matter jurisdiction
Whenever the suit is brought before the court the first question is to
determine whether the court has jurisdiction to deal with the matter. If the
court has all these (territorial, pecuniary, or subject matter jurisdiction then
only the court has the power to deal with the case. In the case, if the court
does not have any of the above-mentioned factors then it will be considered
as lack of jurisdiction or the irregular exercise of jurisdiction. when the court
who does not have jurisdiction decide the case and give a decision then such
decision will be considered as void or voidable depending upon the different
circumstances.

Pecuniary jurisdiction ( Section 15)

Every suit shall be instituted in the court of lowest grade competent to try it.
The word competent denotes that the court must have the power to hear the
case with regards to pecuniary jurisdiction. The court of lowest grade who
has a jurisdiction with regards to pecuniary value shall deal with the case at
first instance.

The issue arises:- who will determine the value of the suit?

Ordinarily, the plaintiff makes the valuation of the suit for the purpose of
determining the pecuniary jurisdiction of the court unless it prima facie
appears to the court that the valuation was not done correctly.  When the
court finds that the valuation was either done overvalued or undervalued,
then the valuation will be done by the Court and the court will direct the
party to approach the appropriate forum.

The jurisdiction of the court is decided by the plaintiff valuation but not the
amount for which decree is passed.

Lets us understand from an example, if the court has a pecuniary jurisdiction

of Rs 15000 and the suit for recovery of accounts is filed on the valuation of
suit done by the plaintiff. The valuation was of Rs 15000. Later the courts
find that Rs 20000 is due, in this case, the court is not deprived of its
jurisdiction to pass a decree for that amount.

It is the valuation done by the plaintiff to determine the jurisdiction of the

court. But this does not mean that the plaintiff is set free to file for any
arbitrary value and to choose the court in which he wants to file a suit.

When the court finds that valuation is done improperly for the purpose of
avoiding the jurisdiction of the appropriate court, the court may require the
plaintiff to prove that valuation was done in a proper manner.

Territorial Jurisdiction (Section 16 to 20)

It is divided into:-

Suits related to immovable property ( Section 16 to 18)

Suits related to Movable property ( Section 19)
Other suits( Section 20)
Section 16 states that the suit related to immovable property shall be
instituted where such immovable property is situated.

It talks about the institution of the suit with respect to:-

Recovery of immovable property with or without profit or rent

Partition of immovable property
Foreclosure, sale or redemption in case of charge or mortgage upon
immovable property
Compensation for a  wrong caused to immovable property
Determination of any interest or rights related to immovable property
Recovery of movable property under attachment or distraint, for all the
above-mentioned purpose.
When the suit is filed for the relief or compensation for wrong caused to
immovable property held by a defendant or any other person on the behalf
of a defendant where the relief can be obtained through his personal
attendance then suits may be instituted in a court within whose local
jurisdiction:-

the property is situated, or

 thedefendant voluntarily and actually resides or carries on business or
personally for gains.
Section 17:-Cases in which the immovable property is situated within the
local limits of the jurisdiction of different courts.

When the suit is filed for obtaining the compensation or relief for the wrong
caused to immovable property situated within the jurisdiction of two or more
courts, the suit may be filed in any court within whose local jurisdiction a
portion of the property is situated. But in respect for the value of subject
matter of the suit, the entire claim is cognizable by such court.

Section 18– A place of an institution when the jurisdiction of courts is

uncertain

When there is uncertainty with regards to the local limits of the jurisdiction
of courts, and any of the courts has satisfied that there is a ground for
uncertainty, record the statement and may proceed with the case to
entertain and dispose of the case. The decree passed by such court will have
the same effect as if the property was situated within the local limits of its
jurisdiction.

In a case where the court taking the cognizance of case does not record the
statement and objection is brought before Appellate or Revisional Court, the
Appellate or Revisional court shall not allow the objections unless it is
satisfied that at the time of institution of suit there was no reasonable
ground for uncertainty as regards to jurisdiction of Court and there has been
a failure of justice.

Section 19– Suits with regard to movable property when Applicable where
the suit is for the wrong caused to the person or property.

Conditions

If the wrong was done within the local limits of the jurisdiction of one
courtand the defendant voluntarily resides or carries on his business or
works for personal gain within the local limits of the jurisdiction of another
court then the plaintiff has an option to file at either court.

Lets us understand through an example.

A, residing in Delhi, beats B in  Bangalore. B may institute the suit either in
Delhi or Bangalore.

A residing in Bangalore, publishes a defamatory statement of B in Delhi. B

may sue A in Bangalore or Delhi.

Other suits to be instituted where defendants reside or cause of action arises

(Section 20) when Applicable when there is a breach of contract or
commercial transactions.

Conditions

If the breach of contract was done or cause of action arises within the local
limits of the jurisdiction of one court and defendant voluntarily resides,
carries on his business or works for personal gains  within the local limits of
the jurisdiction of another court the plaintiff has an option to file at either
court

Example

C is a tradesman in Bangalore, D carries on business in Hyderabad. D, by his

agent in Bangalore, buys goods from C and requests C to deliver them to
Amarchand Company. C delivers the goods in Bangalore accordingly. C may
sue for the price of goods either in Bangalore where the cause of action
arises or in Hyderabad where D carries on his business.

Objections to jurisdiction( Section 21)

If objection related to the place of suing:-

pecuniary limits
competence of the executing court with regards to local limits of its
jurisdiction
is not brought in the Court at the first instance, before settlement or in a
case where the issues are settled, then no objection will be allowed by the
Revisional or Appellate Court unless there is a failure of justice.

Non- Applicability
 Territorial
jurisdiction
Pecuniary jurisdiction
In the case of Karan Singh vs Chaman Paswan

When the court commits an error in entertaining the suit with regard to
pecuniary or territorial jurisdiction then the decision given by such court will
not be void but will be considered as the illegal exercise of jurisdiction.

Bars on a suit to set aside a decree on objection as to the place of suing

(Section 21A)

No suit shall be brought up challenging the validity of decree passed in a

former suit between the same parties or between the parties litigating under
the same title on any ground based on an objection as to a place of suing.

Institution of Suit (Sec. 26)

Pleadings: (Order 6)

What are the Pleadings?

Before understanding amendment of pleadings, there is a need to explain

what is Pleadings and its Rule. Pleadings are the statements which are the
backbone of every civil suit. No civil suit will come into existence if there are
no Pleadings. Pleadings have been defined under Order 6 Rule 1 of CPC
which states that Pleading shall be Plaint or Written Statements. Plaint is the
statements filed by the Plaintiff in a Civil Court to prove his claim whereas
Writtefeen statements are the statements defined in Order 8 Rule 1 of CPC
which states that dndant should file written statements in 30 days from the
date of issuance of the summons. Written statements are filed by the
defendant for his defense. Plaint has not been defined in CPC but it can be
termed as pleadings of Plaintiff from which civil suit is initiated.  Pleadings
should be properly drafted and it should not contain any vague or
unambiguous statements. Pleadings are those material facts which helps
plaintiff to define the cause of action and the defendant to establish his
defense in a civil suit.
What rules to be followed while drafting of pleadings?

Pleading should contain the facts but no law should be applied in pleadings.
Only the court has the power to apply the law on the basis of fact stated in
the Pleadings. In the case of Gouri Dutt Ganesh Lal Firm v. Madho Prasad,1
honorable court stated that Pleadings should be defined in four words –
“Plead Facts, not laws”.

Pleadings should contain material facts. Parties should avoid using

immaterial or irrelevant facts in the Pleadings. In the case of Virender Nath
v. Satpal Singh2, the court stated that material facts are those facts which
helps Plaintiff to define his cause of action or defendant to strong his
defense.

Parties should not give the evidence in the pleadings from which facts are
proved.

Pleadings should contain the material facts in the brief form. Parties should
avoid using irrelevant or immaterial statements while drafting the Plaint.

Order VI Rule 17 Code of Civil Procedure :

Amendment of pleadings – The Court may at any stage of the proceedings

allow either party to alter or amend his pleadings in such manner and on
such terms as may be just, and all such amendments shall be made as may
be necessary for the purpose of determining the real questions in
controversy between the parties.

Provided that no application for amendment shall be allowed after the trial
has commenced, unless the court comes to the conclusion that in spite of
due diligence, the party could not have raised the matter before the
commencement of trial.”

In which stage of civil suit pleading can be amended?

The Provision related to Amendment of Pleadings gives power to the civil

court to allow parties to alter, amend or modify the pleadings at any stage of
proceedings1.  Provision for Amendment of pleadings has been stated in
Order 6 Rule 17 of the Code of civil procedure. But the court will allow
amendment only if this amendment is necessary to determine the
controversy between the parties. The purpose of this provision is to promote
ends of justice and not to defeat the law.

The Proviso of Order 6 Rule 17 states that court will not allow application of
amendment after the trial has been commenced unless court comes to the
conclusion that party did not raise the relevant facts before the
commencement of the trial. This proviso gives discretionary power to the
court to decide on the application of pleadings after the commencement of
the Trial. An institution of the suit is necessary for applying for amendment
of pleadings.

This provision was deleted by the Civil Procedure (Amendment) Code, 1999.
This omission was made to ensure consistency in new changes in the civil
code. But later, it was restored by the Civil Procedure (Amendment) Code,
2000. This amendment has given power to the court to allow application of
the pleadings with some limitation.

In the case of Gurdial Singh v. Raj Kumar Aneja, the court stated that any
person who is applying for the amendment of pleadings should state that
what is to be altered, amended or modified in the original pleadings.

In the case of the Rajesh Kumar Aggarwal & Ors v. K.K. Modi & Ors5,  the
court stated that Amendment of pleadings consists of two parts :

In the first part, the word ‘may’ gives discretionary power to the court to
allow or disallow application of pleadings.

In the second part, the word ‘shall’ gives obligatory direction to the civil
court to allow the application of pleadings if this amendment is necessary for
the purpose of determining the real questions in controversy between the
parties.

Why do courts allow amendment of Pleadings?

The primary objective for the court to allow application for  Amendment of
Pleadings is secure the ends of the justice and prevent injustice to other
parties. Also, this amendment is necessary for the purpose of determining
the real questions in controversy between the parties.  Amendments of
pleadings help the parties to correct its mistakes in the pleadings. In the
case of Cropper v. Smith, the court stated that the object behind
amendment of pleadings is to protect the rights of the parties and not to
punish them for the mistake made by them in the pleadings.

What can be amended in pleading?

Plaintfiled by the Plaintiff

Written Statements filed by the Defendant 
Importance of the Doctrine of Relation back in Amendment of
Pleadings

When the court allows the application of the Amendment of Pleadings then it
relates back to the date of suit. But in the case of Sampath Kumar v.
Ayyakannu6,  the court stated that in some special cases, the court can
direct that amendment of pleadings will not relate back to the date of suit.

Amendment of Pleadings when granted:

In the case of Kishan Das  Vithoba Bachelor, the court stated that there are
two necessary conditions to be satisfied before granting leave for
amendment of pleadings:

This grant of leave should not leads to the injustice to other party.
This Amendment of pleadings is necessary for determining the real
question of controversy between parties.
In the case of  Rajkumar Gurawara (Dead) Thr. L.Rs. vs S.K. Sarawagi And
Co. Pvt. Ltd. And Anr, the honorable Supreme Court stated certain
conditions when amendments of Pleadings can be allowed they are:

When nature of the case will change by allowing application for

amendment of appeal
When a new cause of action arise by allowing application of an
amendment
When Amendments of Pleadings defeats the law of limitation.
Other points on which Amendments of Pleadings is granted:

When the application of amendment is filed to avoid multiplicity of

suits.
 When parties in the plaint or written statements are wrongfully
described.
When the plaintiff omits to add some properties to the plaint.
Amendment of Pleadings when refused:

Application of amendment of Pleadings is rejected by the court when

this amendment is not necessary for determining the real question
of controversy between parties.
Application of amendment of pleadings is rejected when it leads to the
introduction of a totally new case. In the case of the Modi Spg. Mills
v. Ladha Ram & sons7 Supreme Court held that “ the defendant
cannot be allowed to change completely the case made in certain
paragraphs of the written statement and substitute an entirely
different and new case”.
When the Plaintiff or defendant is negligent
When proposed alteration or modification is unjust
Application for Amendments of Pleadings is refused when it violates
the legal rights or cause injustice to the other party
Leave to amend is refused when it leads to the needless complications
in the case.
Leave to amend is refused when there has been excessive delay by the
parties in filing the suit.
Application of Amendment is refused when it changes the nature of the
disputes
The court will not grant application of amendment of pleadings if it is
made with mala fide intention.
Where several opportunities are given to parties to apply for
amendment of pleadings. But they failed to make an application.
Step by Step procedure for filing an application for Amendment of Pleadings:

Step 1 – Firstly the Plaintiff or Defendant who wants to amend its pleadings
can write an application for the  amendment of pleadings to the concerned
civil court

Step 2 –  After drafting the application applicant needs to produce the

application before the concerned civil judge.

Step 3 – He has to pay a required court fee under court fees Act, 1870.
Step 4- Applicant needs to tell the purpose of the alteration in his
application.

Step 5 – Judge will read the application and if he thinks fit that this
alteration or amendment is necessary for the purpose of determining the
real questions in controversy between the parties Than he will grant
permission for amendment for pleading.

Step 6 – After getting the order from the court, the applicant needs to file
new pleadings within the prescribed time and if no time has been prescribed
by the court then he needs to file it in 14 days from the date of order.

Step 7 – He also needs to give a copy of altered pleadings to the opposite

party

Can the pleadings be amended if the suit is debarred by the Limitation Act

In the case of  L.J. Leach & Co. Ltd. v. Jardine Skinner & Co, the Supreme
Court stated that court can decline the application of amendment of
pleadings if it is debarred by the Limitation Act. But the court has
discretionary power to allow this application to secure ends of justice. The
limitation can be ground for rejecting the application but the court can allow
if the court thinks that amendment is necessary.

In the case of South Konkan Distilleries & Anr v. Prabhakar Gajanan Naik &
Ors9,  the court stated that it is settled principle that court can disallow the
application of amendment if on the date of the filing of Application it is
barred by the limitation. But this not mean that court cannot order grant for
Application. For securing the interest of justice, the court has discretionary
power to allow application of amendment of pleading.

In the case of Pankaja & Anr v. Yellappa (D) by LRs & Ors,  the court held
that there is no settled principle that which states that court can reject the
application of amendment if on the date of filing the application it is barred
by limitation. The court stated the discretion to allow or not to allow
application depends on the factual background of the case. If facts &
circumstance of the case clearly establishes that this amendment is
necessary to determine the cause of action and to avoid further litigation
then the court should allow this application.
In the case of Ragu Thilak D. John v. S. Rayappan,  the court stated that it is
disputed fact that application of amendment will be allowed or not when it is
barred by the Limitation. But in many cases, the issue of limitation is made
an issue in the suit, In those cases, application of amendment is allowed for
disposing of the case.

In the case of Vishwambhar v. Laxminarayan12,  the court held that

application for amendment of Pleading is to the relate back to a filling of the
date of application not to the date of filing of the suit.  

Why is Order 6 Rule 17 criticized?

Application of the Amendments delays Justice. Arun Mohan, senior

lawyer-author of the book called “Justice, Courts, and delays” tells in
his book that almost 80% of the application for the amendment is
filed with the sole objective of delaying the proceedings.
One of the big challenges faced by the Indian courts is the backlog of
the cases. Civil court is already burdened with lot many cases and
amendment of pleadings puts more burden on the civil courts.
Order 6 Rule 17 is the most misused law.

 It is a hindrance to speedy disposal of the matter

 It has more possibilities & chances of violation of legal rights on the
other side.
 Sometimes it is difficult to find the real question of controversy
between parties
The controversy between the Amendment of proceedings and the
Limitation is still not settled. In different cases, there are different
interpretations of this rule.
 Many applicants with the mala fide intention are filing the application
for amendment. It is not easy for the civil court to establish mala
fide intention of the parties.

What happens when an applicant fails to amend in a prescribed time?

Provisionon : Order VI Rule 18 Civil Procedure

Failure to amend after order : If a party who has obtained an order for leave
to amend does not amend accordingly within the time limited for that
purpose by the order, or if no time is thereby limited then within fourteen
days from the date of the order, he shall not be permitted to amend after
the expiration of such limited time as aforesaid or of such fourteen days, as
the case may be, unless the time is extended by the Court.

Order VI rule 18 states that when a party had application for amendment
and it is allowed by the court through an order. But the party does not
amend it within the time prescribed in the order or if no time is prescribed,
within the fourteen days from issuance of order then the party will be not
permitted to amend.

Plaint and Written Statement (Order 7,8)

Plaint

A Plaint is a legal document that contains the content of any civil suit which
shows the Plaintiff’s claim after filing suit. The plaint is the first step of the
Plaintiff in the form of a legal document for the commencement of suit and it
shows what a Plaintiff wants from that suit. The concept of a plaint is
mentioned in the Civil Procedure Code. Through the help of plaint, the
plaintiff narrates or describes the cause of action and related information
which is considered as essential from the viewpoint of the suit.

In the case of plaint, the cause of action consists of two divisions, first is the
legal theory (the factual situation based on which the plaintiff claims to have
suffered) and second is the legal remedy that the plaintiff seeks from the
court. A plaint is considered an important concept because it is the foremost
and initial stage to initiate any lawsuit and helps to find a civil court of
appropriate jurisdiction.

Order VII of the Code of Civil Procedure deals, particularly with plaint. In
Order VII of CPC, there are many different rules which deal with different
constituents of plaint. Rules 1 to 8 deal with the particulars of the plaint.
Rule 9 of CPC deals with how the plaint will be admitted and after that Rule
10 to 10-B talks about the return of the plaint and the appearance of
parties. And the main Rules i.e 11 to 13 deal with the rejection of the plaint
and in which circumstances the plaint can be rejected.
Section 26 of the Code of Civil Procedure states “Every suit shall be
instituted by the presentation of a plaint or in such other manner as may be
prescribed.” This section clearly shows that plaint is very much necessary for
the establishment of a suit before the civil or commercial court.  

Necessary Contents of A Plaint

A plaint is a legal document that contains a lot of necessary contents in the

absence of which, it cannot be considered as a plaint. The contents
necessary for a plaint are mentioned in Rules 1 to 8 of Order VII of CPC.
These are mentioned below:

Plaint should contain the name of the commercial or civil court where a
suit will be initiated.
Plaint should contain details of the plaintiff such as the name, address,
and description.
Plaint should contain the name, residence, and description of the
defendant.
When a plaintiff has some defects or problems in health or any type of
disability, the Plaint should contain a statement of these effects.
Plaint should contain the facts due to which cause of action arises and
where the cause of action arises it should also be mentioned.
Plaint should not only mention facts due to which cause of action
arises but also those facts which help in recognizing the jurisdiction.
Plaint should also contain about that relief which the plaintiff seeks
from the court.
When the plaintiff is ready to set off a portion of his claim, the Plaint
should contain that amount which has been so allowed.  
Plaint should contain a statement of the value of the subject-matter of
suit not only for the purpose of jurisdiction but also for the purpose
of court-fees.
At last, the content that should be on plaint is the plaintiff verification
on oath.
This shows that the plaint is a necessary component for the successful
initiation of suits in commercial or civil courts and plays a very important
role throughout the suit. Some additional particulars which were not
mentioned above include the following: Plaintiff shall state the exact amount
of money to be obtained from the defendant as given under Rule 2 of order
VII whereas Rule 3 of order VII of CPC states that when the plaint contains
subject matter of immovable property, then the property must be duly
described.

Rejection of plaint

The Plaint shall be rejected in certain situations when requirements are not
fulfilled. Some of the situations in which the plaint is rejected are as follows:

The plaint is rejected in a case where the cause of action is not

disclosed. If the cause of action is not disclosed then it is not
possible to prove the damage caused to the plaintiff. To seek relief
against the defendant, the facts need to be mentioned clearly. In the
case of Snp Shipping Service Pvt. Ltd. v. World Tanker Carrier
Corporation, the plaint was rejected and the suit dismissed under
Order 7, Rule 1(a) of the C.P.C.,1908.
The plaint is also rejected in a case where the plaintiff relief is
undervalued and the plaintiff is requested by the court to correct the
valuation within the given time frame but the plaintiff fails to do so.
The plaint is rejected in a case where all the documents are not
properly stamped and the plaintiff on being required by the court to
supply the required stamp paper within a time to be fixed by court
fails to do so.
The plaint is mostly rejected due to the statement mentioned in the
plaint secured by any law or statute that doesn’t give any right to
the plaintiff to file the suit.
When a duplicate copy of the plaint is not submitted whereas it is
mentioned that it is mandatory to submit the duplicate copy then in
that condition plaint is liable to be dismissed.
The plaint is rejected when the plaintiff fails to comply with the
provisions of Rule 9 of Order VII of C.P.C.

Provisions on the Rejection of Plaint under C.P.C.

As we have already said in what circumstances the plaint can be rejected

and now what are the provisions that are related to the rejection of the
plaint under Code of Civil Procedure. Some of the provisions regarding the
rejection of a plaint are mentioned below:

Order VII Rule 12 of C.P.C states the procedure on rejecting the plaint
so that it can be used as a precedent for future cases.
 Order VII Rule 13 of C.P.C states that rejection of the plaint does not
stop the presentation or filling of the fresh plaint.
Two modes which are mentioned to show the manner in which the plaint can
be rejected:

The defendant has the right to file an application in the form of an

interlocutory application at any stage of proceedings for the
rejection of the plaint.
Suo moto (on its own): The meaning of the suo moto itself defines the
way of rejection of the plaint. Suo moto rejection is under Order 7
Rule 11 which states Rejection of the plaint. A court can itself try a
suit under Order 7 Rule 11 if the plaint fulfills the conditions
discussed in the first point.

Landmark Cases on Rejection of Plaint

Many cases came in front of court related to the rejection of plaint but some
of the cases given below are now considered as a landmark for other cases
on the rejection of plaint:

Kalepur Pala Subrahmanyam v Tiguti Venkata: In this case, it was said that
a plaint cannot be rejected in part and retained part under this rule. It must
be rejected as a whole and not with the rejection of one part and acceptance
of another. This judgment is considered as a landmark judgment on the
rejection of the plaint.  

Sopan Sukhdeo Sable v. Asstt. Charity Commr.: In this case, it was held
that where the suit was at the stage of recording of evidence and an
application under Order 7 Rule 11 of the code was filed to delay the
proceedings of the suit, the application under Order 7 rule 11 of the code
was rejected.

Bibhas Mohan Mukherjee v. Hari Charan Banerjee: In this case, it was held
that an Order rejecting a plaint is a decree and hence it is applicable and
binding in other cases which involves the rejection of the plaint.

1. ROJA vs. U.S. RAYU: Court, in this case, held that any application for
the rejection of the plaint under Order 7 Rule 11 of the code of civil
 procedure can be filed at any stage and the court has to dispose of
the same before proceeding with the trial.  
Kuldeep Singh Pathania vs. Bikram Singh Jarya: In this, the court held that
for an application under Order VII Rule 11(a) of Code of Civil Procedure, only
the pleadings of the plaintiff can be looked into and neither the written
statement nor averments can be considered for inquiry.

Appearance and Non-Appearance of Parties (Order 9)

The appearance of parties to the suit

As stated under Rule 1 of Order IX of the Code of Civil Procedure, the parties
to the suit are required to attend the court either in person or by their
pleaders on the day which has been fixed in the summons. If the plaintiff or
a defendant, when ordered to appear in person, do not appear before the
court and neither show the sufficient cause for his non-appearance, the
court is empowered under Rule 12 of Order IX as follows.

If the plaintiff does not appear, dismiss the suit.

If the defendant does not appear, pass an ex-parte order.
Non-appearance of both parties to the suit

When neither the plaintiff nor the defendant appears before the court when
the suit is called for hearing, then the court is empowered to dismiss the suit
under Rule 3 of Order IX. The dismissal of the suit under this rule does not
put a bar on filing a fresh suit on the same cause of action as per Rule 4.

The plaintiff can also apply for setting aside the dismissal if he is able to
satisfy the court that there was sufficient behind his non-appearance. If the
court is satisfied with the cause of non-appearance then it may set aside the
order of dismissal and schedule a day for the hearing of the suit.

The appearance of the plaintiff

When only the plaintiff appears but the defendant does not appear, then an
ex-parte order can be passed against the defendant. But, the plaintiff has to
prove that the summon was served to the defendant.
If service of the summons is proved then only the court can proceed for an
ex-parte against the defendant and the court may pass a decree in favour of
the plaintiff. This provision applies only for the first hearing and not for the
subsequent hearings of the matter and the same has been held in the case
of Sangram Singh v. Election Tribunal.

Even while passing an ex-parte order it is the duty of the court to secure the
end of justice even in the absence of the defendant. In the case of Maya
Devi v. Lalta Prasad, it has been held by the Supreme Court that -It is the
duty of the court to ensure that statements in the plaint stand proven and
the prayers asked before the court are worthy of being granted. This
provision of passing ex parte order cannot be passed when there are more
than one defendants in the case and any of them appears.

Appearance of defendant

The provisions laid down to deal with the appearance of only the defendant
has been laid down from rule 7-11 of Order IX. When the defendant appears
but there is non-appearance of the plaintiff, then there can be two
situations:

The defendant does not admit the claim of the plaintiff, either wholly
or any part of it.
The defendant admits the plaintiff claim.
If the defendant does not admit the claim of the plaintiff, then the court shall
order for dismissal of the suit. But, when the defendant admits completely or
any part of the claim made by the plaintiff then the court is empowered to
pass a decree against the defendant on the ground of such admission and
for rest of the claim, the suit will be dismissed.

Dismissal of the suit of the plaintiff without hearing him is a serious matter
and it should not be adopted unless the court gets satisfied that in the
interest of justice such dismissal is required, as cited by Beaumont, C.J. in
the case of Shamdasani v. Central Bank of India.

Does the same provision apply to the non-appearance of the plaintiff due to death?
When the plaintiff does not appear because of death, the court has no power
to dismiss the suit. Even if such order is passed it will amount to a nullity as
held in the case of P.M.M. Pillayathiri Amma v. K. Lakshi Amma.

Application to set aside the dismissal

When the suit has been dismissed on the ground of non-appearance of the
plaintiff then he can make an application to set aside the order of dismissal.
If the court is satisfied with the reason of non-appearance as a sufficient
cause then the court can set aside the order dismissing the suit and fix a day
for the proceeding of the suit.

Sufficient cause

For considering the sufficient cause of non-appearance of the plaintiff the

main point to be considered is whether the plaintiff really tried to appear on
the day which was fixed for hearing or not. When sufficient cause is shown
by the plaintiff for his non-appearance, then it is mandatory for the court to
reopen the suit. In absence of sufficient cause, it is upon the discretion of
the court to set aside the dismissal or not as held in the case of P.K.P.R.M.
Raman Chettyar v. K.A.P. Arunachalam Chettyar. Sufficient cause depends
upon the facts and circumstances of each and every case.

In the case of Chhotalal v. Ambala Hargovan, the Bombay High Court

observed that if the party arrives late and find its suit dismissed due to his
non-appearance then he is entitled to have his suit or application restored
with the payment of costs.

When summon is not served

Rule 2 to 5 of Order IX lays down the provision for the situation when the
summon is not served to the defendant. One of the fundamental procedural
law is that a party must be given a fair opportunity to represent his case.
And, for this, a notice of the legal proceedings initiated against him is
obligatory. Therefore, service summons to the defendant is mandatory and it
is a conditional precedent.

When there is no service of summons or it does not give him sufficient time
for effective presentation of the case then a decree cannot be passed against
him as held in the case of Begum Para v. Luiza Matilda Fernandes.
Rule 2 of Order IX also holds that when the plaintiff fails to pay costs for
service of summons to the defendant then the suit may be dismissed. But,
no dismissal can be made even in the presence of such failure if the
defendant appears on the day of hearing either in person or through his
pleader. However, the plaintiff is entitled to file a fresh suit when the suit is
dismissed under this rule. and, if the court is satisfied that there is a
reasonable reason behind such failure to pay costs then the court may set
aside the order of dismissal.

When the summon is returned unserved and the plaintiff does not apply for
fresh summons for 7 days from which the summon is returned unserved by
the defendant or any of the defendants, then the court can dismiss the suit
against the defendant or such defendants

When the summon was not duly served to the defendant is not proved then
the court can direct to issue a fresh summon to the defendant for service.
When the service of the summons is proved before the court but the time
prescribed in the summon is not sufficient for him to answer on the day
which has been fixed, then the hearing can be postponed by the court to a
future date and notice will be given to the defendant.

Ex parte appearance

Ex-parte Decree

When the defendant is absent on the day of the hearing as fixed in the
summon an ex-parte decree can be passed. The ex-parte order is passed
when the plaintiff appears before the court on the day of the hearing but the
defendant does not even after the summon has been duly served. The court
can hear the suit ex-parte and give ex-parte decree against the defendant.

An ex-parte decree is a valid one and it is not null and void but can be
merely voidable unless it is annulled on a legal and valid ground. An ex-
parte can be enforced like a bi-parte decree and it has all the forces as a
valid decree as held in the case of Panduranga Ramchandra v. Shantibai
Ramchandra.

Remedies against an ex-parte decree

When an ex-parte decree has been passed against a defendant, the
following remedies are available to him.

He can apply to the court under rule 13 of Order IX for setting aside
the ex-parte decree passed by the court.
He can appeal against that decree under section 96(2) of the Code or,
prefer revision under section 115 of the code when no appeal lies.
He can apply for a review under Order 47 Rule 1.
A suit on the ground of fraud can be filed.

Setting aside an ex-parte decree

For setting aside an ex-parte decree an application may be made by the

defendant. An application to set aside decree can be made to the court
passing that decree. There are certain rules to be followed for setting aside
an ex-parte decree and if the defendant satisfies the court with sufficient
reason, then only the ex-parte decree which has been passed can be set
aside.

The limitation period for making an application for setting aside an ex-parte
decree is of 30 days.

The grounds on which an ex-parte decree can be set aside are:

When the summons has not been duly served. Due to any “sufficient cause”,
he could not appear on the day of the hearing.

Sufficient Cause

The term sufficient cause has not been defined anywhere but as held in the
case of UCO Bank v. Iyengar Consultancy, it is a question which is
determined upon the facts and circumstances of the cases. The test to be
applied for this is whether or not the party actually and honestly intended to
be present at the hearing and tried his best to do so. There are several
instances which have been considered as sufficient cause such as late arrival
of the train, sickness of the council, the strike of advocates, death of a
relative of party etc.

The burden of proof that there was a sufficient cause of non-appearance is

upon the defendant.
Commissions (Sec. 75 to 78 Order 26)

What is meant by issue of commission by the Court?

Commission is instruction or role given by the Court to a person to act on

behalf of the Court and to do everything that the Court requires to deliver
full and complete justice. Such person who carries out the commission is
known as a Court commissioner.

For example, whenever the Court has to do a local investigation, a

commissioner is appointed who conducts the local investigation. Similarly, to
record the evidence of a witness who cannot come to the Court for evidence,
the Court can issue a commission for recording of such evidence.

Who can appoint a commissioner?

Under CPC, the Court which issues the commission can appoint the
commissioner. Section 75, provides that “the Court” can issue commission
provided the limitations and restrictions applicable. Therefore, the Court who
has to decide the suit can appoint the commissioner. Commissioner is
appointed to carry out the functions for which the commission is issued.
Court has the discretionary power to appoint the commissioner and such
power can be exercised on the application of any of the parties or the Court
can issue the commission suo moto.

We will understand the procedure followed by the Courts to appoint the

commissioner later in this article.

Who can be appointed as a commissioner?

Generally, there is a panel of commissioners which is formed by the High

Court in which advocates are selected who are competent to carry out the
commission issued by the Court.

The person appointed as commissioner should be independent, impartial,

disinterested in the suit and the parties involved in it. Such a person should
have the requisite skills to carry out the commission.
It will be a complete waste of time and resources of the Court and the
parties if a person who cannot read and understand the accounts and
documents is appointed as commissioner to adjust accounts. Similarly, a
person who does not have the qualifications to conduct scientific
investigation should not be appointed as a commissioner for such task.

The District judge supervises the subordinate Courts who have to take
special care while appointing a commissioner(1). The same person should
not be appointed by the Court in all commissions and a person who hangs
about the Court should not be appointed.  

What is the procedure for appointment of commissioner?

Every High Court has the power (Article 227) to make rules and regulations
which is to be followed by the subordinate Courts. Procedure for
appointment of a commissioner is provided in High Court rules each state.

For instance, in Delhi, Chapter 10 of Delhi High Court rules, 1967, provides
procedure for appointment of Commissioner. The following procedure is
followed by the Delhi High Court(2):

A panel of not more than 4 commissioners is to be formed which

consists of young persons including a lady lawyer, appointed by the
Court for recording of evidence.
The District Court notifies the bar about the number of vacancies of
commissioners and the bar forward the applications received for the
same to the Court who then forwards it to the High Court with their
recommendation.
The term of such appointment is generally 3 years which can be
extended by an order of the High Court but no commissioner can be
appointed after 6 years of such appointment.    

When can a commissioner be appointed by the Court?

A commissioner can be appointed by the Court when a commission is issued

by the Court. According to Section 75 of CPC, the Court has the power to
issue a commission to carry out the following functions:

To examine witnesses: Order 26 Rule 1-8

The general rule of evidence is to bring the evidence before the Court and
must be recorded in open Court. But in extraordinary circumstances, the
appearance of witness is dispensed and the witness is allowed to depose
evidence without appearing in Court.

Appearance is exempted if:

A witness is bedridden or is unable to attend the Court due to sickness

or infirmity, in such circumstances the Court can exempt the
appearance of witness and allow the witness to depose evidence to a
commissioner appointed for the same.  Such a witness will have to
submit a certificate signed by a registered medical practitioner as
evidence of sickness or infirmity. (Order XXVI Rule 1, C.P.C.) In
such situations the Court will exercise its powers provided under
order 18 rule 4 and appoint a commissioner for examination on
interrogatories(3).
A witness apprehends danger to his life and informs the Court about
such danger and if the Court thinks that recording evidence of the
witness is necessary, the Court may issue commission to record
evidence of such witness. Where a party accused of fraud seeks
himself to be examined with commission, the Court must not issue
commission and avoid person of such demeanor to abuse the
procedure.
The witness is a pardanashin lady whose attendance is exempted
under Section 132 of the code.
The witness is a Civil or Military Officer of the Government, cannot
attend without detriment to the Public Service. (Order XXVI Rule 4)
If the Court thinks that it is in the interest of justice or expeditious
disposal of the case or for any other reason, the Court can issue a
commission notwithstanding any of the rules provided in the order.
(order 26 rule 4A)
A person who cannot be ordered to attend the Court in person under
Order 16 rule 19 can be examined by the Court by issuing a
commission. (order 26 rule 4 proviso)
A commission can be issued for examination of a person detained in
prison. (order 16A rule 7)
The Court will issue an order of commission for examination of a witness on
following grounds  if such person: (order 26 rule 4)
 Resides beyond the jurisdiction of the Court. [order 26 rule 3(a)]
About to leave from the jurisdiction of the Court. [order 26 rule 3(b)]
A government servant and cannot attend without affecting the public
service [order 26 rule 4(c)].
Resides outside India and the Court decides that his evidence is
necessary.
The commission will be issued to any other Court within whose local
limits such person is residing and if the person resides within the
local limits of the Court issuing it, a commissioner can be appointed
to carry out such commission.
The provisions of the Court relating to summoning, attendance examination
of witnesses, penalties imposed on the witness will apply on the person who
has to give evidence or produce documents before the commissioner. The
commissioner who is executing the order of the Court, within whose local
limit such person resides or by the Court beyond whose jurisdiction such
person resides, will be deemed to be a civil Court.

If the commissioner is not a judge of the civil Court, the commissioner

cannot impose penalties but can make an application to the Court which has
issued commission to impose penalties on the person. (order 26 rule 17)

To make local investigations: Order 26 Rule 9-10

The Court can appoint commission for local investigation if the Court is of
the opinion that a local investigation is necessary:

For proper clarity of any matter in dispute, or

In ascertaining the market value of any property, or
To know the amount of mens rea or annual net profits.
While appointing a commissioner for, the Court has to examine (4).

The pleadings of both the parties,

Relief claimed,
The real controversy between the parties.
It is important to note that the object of a commission is not to collect
evidence which can be brought to the Court by the parties but to acquire
evidence from a fixed spot. It is also used to enable the Court to have more
clarity regarding the facts of the case.
Commissioner should not be appointed to provide pre-trial decree against
the defendant, that is, the Court should not appoint a commissioner to
provide the relief claimed, directly or indirectly, by the plaintiff before the
final decree is passed. It is important because such commission will
prejudice the rights of the defendant to a fair trial.   

To adjust accounts: Order 26 Rule 11-12

In a suit, if the Court thinks that it is necessary to verify the accounts

involved in the suit, the Court may issue a commission to make the
examination of such accounts and may appoint a commissioner. (rule 11)
The Court takes special care while making such an appointment. The Court
appoints only such a person who is competent to examine such records. The
reports submitted by the commissioner is considered evidence by the Court.
(rule 12)

To make partition: Order 26 Rule 13-14

The Court can issue commission for partition of a suit property. Suppose, the
Court has passed a preliminary decree for partition of the suit property, in
such a situation, the Court can appoint a commissioner to carry out the
decree. (rule 13) The commissioner has to divide the property in shares and
distribute it among the parties according to the suit decree. Commissioner
has to submit a report after such partition is completed. (rule 14)

To hold investigation: Order 26 Rule 10-A

When the Court has to conduct a scientific investigation, the Court can
appoint a commissioner who will then be responsible for such investigation.
For example, to identify the substance used as a raw material in the subject
matter, the Court may issue commission to hold scientific investigation. (rule
10-A)

After conducting such investigation the commissioner has to submit the

report within the time prescribed by the Court.

To sell the property: Order 26 Rule 10-C

Suppose the subject matter of a suit is a movable property which cannot be
preserved by the commissioner and if it is not sold, its value cannot be
recovered. Therefore, the Court appoints a commissioner who is given the
responsibility to sell the property and submit a report along with the
proceeds received from the sale of such property.

To do ministerial work: Order 26 Rule 10-B

Ministerial work means the administrative work which the Court has to do,
but are not of judicial nature like accounting, calculation, etc. Such work
takes a lot of valuable time of the Court which can be used in other
important judicial functions.

Therefore, the Court appoints a commissioner to do such works on behalf of

the Court. It is important to note that commissioners cannot do judicial
functions. (5)

Procedure for carrying out the commission:

The commissioner will conduct the local investigation, examination of

witnesses, adjust accounts and other functions as ordered in the
commission.
After completion of the function, the commissioner will reduce the
findings in writing and will make a report.
The commissioner will submit the report signed by him along with the
evidence recorded in the Court.
The report of commissioner will form a part of the record.
While examining the report, the Court or the concerned parties, after
prior permission, can examine the commissioner personally in open
Court.
If the Court is dissatisfied with the proceedings of the commissioner
the Court can order a further inquiry on the commission or can issue
a fresh commission and appoint a new commissioner.   
To summarize, the commission can be issued in the following circumstances:

1. To make a local investigation.

2. To adjust accounts.
3. To make partition.
4. To hold investigation.
 5. To conduct sales.
6. To perform ministerial work.

Powers of the commissioner: Order 26 Rule 16-18

Under order 26 rule 16, powers of a commissioner are as follows:

Commissioner has the authority to examine the parties and the

witnesses and any other person who the commissioner thinks can
give evidence in the matter referred to him.
Commissioner can direct the parties to produce any documents which
is required to be examined.
Commissioner also has the power to enter and search any land or
building with the permission of the Court.
If the party fails to appear before the commissioner after the order of
the Court, the commissioner can proceed ex parte.

Whether the commissioner will be entitled to a Remuneration?

There is no provision in the CPC which expressly provides for remuneration

to the commissioner but Rule 15 of order 26 provide for the expenses which
might be incurred by the commissioner. While issuing commission, the Court
directs the applicant to deposit a sum of amount which can be used by the
commissioner to account for the expenses which might be incurred by him
while carrying out the commission. The Court has the discretionary power to
make directions regarding the remuneration.  

What are the limitations on the commissioner?

Commissioner has to assist the Court in carrying out the judicial functions
but he cannot do the judicial functions on behalf of the Court. For example, a
commissioner cannot value the suit property because it is a judicial function
and only the Court has the power to do so. A commissioner can assist the
Court by producing the documents such as plans of the suit property by
which the Court can ascertain the value.  

It is not the objective of issuing a commission to procure evidence for the

parties. Therefore, if a party has the apprehension that the opposite party
will tamper with a document which is relevant to the case, the Court should
not appoint a commissioner to seize such documents.
What is the evidentiary value of the report submitted by the commissioner?

According to order 26 rule 10 (2) of the CPC, the report and the evidence
submitted by commissioners forms a part of the record but if the evidence is
submitted without the report of the commissioner, such evidence does not
form part of the record. (6)

The report forms an important part of the case and can only be challenged
on sufficient grounds.The Court has the final say on how much reliance
should be placed on the report submitted by the Court.

Receiver (Order 40)

Who is a receiver under the civil procedure code?

Under order 40 of CPC, The Receiver is an independent and impartial person

who is appointed by the court to administer/manage, that is, to protect and
preserve a disputed property involved in a suit.

For example, in a dispute between A and B for an immovable property, if the

court thinks that it is in the best interest of both the parties that possession
should be taken from B and given to an independent person, the court may
appoint a receiver who can manage the property till the time the suit is
being decided. Such a receiver appointed by the court would be responsible
for the maintenance of the property. He can collect the income accruing like
rent or any other profits and utilize it to maintain the property. After
deducting the expenses incurred in maintenance from the income received
from the property, the receiver will have to submit the remaining income, if
any, in the court.

He is not representative of either of the parties in the action, is uniformly

regarded as an officer of the court working in the interest of neither plaintiff
nor defendant but for the common benefit of all the parties.

What is the purpose of the appointment of a receiver?

When a party in possession of the disputed property exhausts the property

or causes irreparable damages to it, the whole object of the suit gets
defeated because the subject matter ceases to exist or its value gets
affected. Therefore, when the court is of the opinion that the property in
dispute must not go to either of the parties, pendente lite, the court appoints
a receiver who is entrusted with the protection and preservation of such
property. It is a form of interim protection which the court provides to the
parties who makes the application till the time the court adjudicates the
matter.

What is the role of a receiver?

The Receiver is regarded as an officer of the court and is the extended arm
and hand of the court. He is entrusted with the responsibility to receive
disputed property or money given by the court and manage such property or
money till the time a decree is passed or the parties have compromised or
any other period as the court deems fit. The property or fund entrusted to
the receiver is considered to be custodia legis i.e. in the custody of the law.
The Receiver has no power other than those entrusted to him by the court
while appointing him.

Who can appoint a receiver?

According to the civil procedure code, the court before which the
proceedings are pending can appoint a receiver if it appears just and
convenient to the court to appoint such receiver [section 51(d)]. It is within
the discretionary power of the court to appoint the receiver. For example, in
a suit, the trial court can appoint a receiver. Whereas, in appeal, the
appellate court can appoint a receiver.  

However, the discretion is not absolute, arbitrary or unregulated. The

expression “just and convenient” does not mean the appointment is based
on the whims and wishes of the judge on any grounds which stand against
equity.

How does the court decide whether to appoint a receiver or not?

Court has to keep the following principles in mind before appointing a

receiver:

Appointment of a receiver is a discretionary power.

 It is a protective relief to the plaintiff. The object is to protect and
preserve the disputed property till the time the suit is pending in the
court.
A receiver should not be appointed unless the plaintiff shows prima
facie that he has a strong case against the defendant and it is more
than likely that he will succeed in the suit.
Appointment of a receiver is one of the hardest remedies as it deprives
the defendant of his right to possession before the final decree.
Therefore, the court should not resort to it merely on the ground
that it will do no harm.
There should be strong apprehension that there is a danger to the
property or the plaintiff will be in worse of a situation if the
appointment of a receiver is delayed.
The court should appoint a receiver only when there is a possibility of
wrong or injury. Also, if it is shown that the subject matter is not in
the possession of any of the parties and it is in the common interest
of both the parties to appoint a receiver for the protection and
preservation of the property.
The court should look at the conduct of the party who makes the
application for appointment of a receiver. The party should come to
the court with clean hands and their conduct should be such that
they are not disentitled to this equitable relief.
The above principles were introduced by the Madras Court in the case of
T. Krishnaswamy Chetty vs C. Thangavelu Chetty And Ors., AIR 1955 Mad
430. These principles are now well established in the Indian jurisprudence.

Who can apply for the appointment of the receiver?

Generally, a plaintiff files the application for appointment of a receiver but

defendants can also file such application. A third party is not allowed to file
the application but if he is interested in the protection and preservation of
the property, he can also make an application after taking permission from
the court.

Who can be appointed as a receiver?

A person who is independent, impartial and totally disinterested should be

appointed as a receiver. Such a person should not have any stake in the
disputed property. Generally, parties to the suit are not appointed as
receiver by the court. But in extraordinary circumstances, a party to suit can
be appointed as receiver.

When can a receiver be appointed?

The court can appoint a receiver whenever the court is of the opinion that
either party should not hold the property in dispute. The court can appoint a
receiver before or after a decree and can remove any person from the
possession or custody of the property and commit the same property in the
custody or management of the receiver.

Under the code itself, the receiver can be appointed to prevent the ends of
justice being defeated. [section 94(d)]. Similarly, for the execution of a
decree, the court has the power to appoint a receiver. [section 51(d)].

There are provisions in special acts which provides for the appointment of a
receiver by the court. For example, section 84 of the Companies Act, 2013
provides for the appointment of a receiver.  Similarly, section 69A of the
Transfer of Property Act, 1882 also provides for the appointment.

What is the process of appointment of a receiver?

The process of appointment of a receiver is provided by the courts in their

respective court rules. The high court has the power to make rules for the
superintendence and control of the subordinate courts.

For instance,

In chapter XIX of the Delhi High Court (Original Side) rules, 1967, the
following process is provided:

Application for appointment shall be made in writing and shall be

supported by affidavit.
Receiver other than the official receiver has to give security.
The security is to be given to the satisfaction of the registrar.
He has to provide personal bonds with the number of surety required
by the registrar. The personal bond will be double the amount of
annual rental value of the property or the total value of the property
which the receiver is going to administer.
 Within a week of appointment, the receiver will have to submit a
report providing the details regarding the property such as inventory
of property or books of account etc.
The registrar will give directions on where to invest the money
received by the receiver from the property. Generally, such money is
submitted in scheduled banks or government bonds.

What are the powers of the receiver?

Under order 40 rule 1(d) powers of the receiver are provided as following:

Collection of rents and profits arising out of the property.

Application and disposal of such rents and profits.
Execution of documents as the owner himself.
To institute and defend the suit.
Such powers as the court may deem fit.
Also, there are indirect powers which a receiver enjoys being the hand of the
court. For example, If a person obstructs or interferes with the receiver’s
right to possession, it will amount to obstruction in a court proceeding and
such a person can be made liable for contempt of court. Similarly, property
in the hands of the receiver cannot be attached without the leave of the
court.  

The court has the discretionary power to not confer all the rights on the
receiver. Even if the court has given all the powers to him, he should take
the advice of the court in all important decisions related to the property to
protect himself.

Without the permission of the court, the receiver cannot:

Grant lease on the property.

Bring suits except for suit for rent. A suit will be dismissed if not
permitted by the court.

What are the duties of the receiver?

Under order 40 rule (3), duties of a receiver are provided as follows:

 Furnish security to account for what he will receive from the property
as income.
Submit accounts (half yearly) for such period or form as directed by
the court. The account basically includes the income received and
expenses incurred for the protection and preservation of the
property.
Pay the amount due to the court.
Take responsibility for any reduction in the value of the property
because of the receiver’s willful negligence.
Discharge the duties personally and should not delegate or assign any
of the rights entrusted to him by the court.
The receiver has to fulfil all the duties and responsibilities entrusted to him
by the court. Otherwise, the court can take action against him and make him
personally liable for any loss which might occur due to his negligence or
wilful failure to protect and preserve the property. 

What are the liabilities of a receiver?

According to Order 40 rule (4), When a receiver fails:

To submit the reports as specified by the court or,  

To pay the amount due from him as directed by the court or,
Causes loss to the property due to gross negligence.
Any other duty which court directed him to do,
The court may order the attachment of property of the receiver to recover
the loss caused due to his willful default or negligence.

The court, after recovering all the losses from the proceeds received after
selling receiver’s property, will pay the balance (if any) to the receiver.

The receiver is bound in keeping down the expenses and taking care of the
property in his possession as a prudent man would observe in connection
with his own property under similar circumstances.

Will a receiver be entitled to remuneration?  

Receivers are entitled to remuneration as fixed by the court for the services
rendered by them. Also, a receiver has to be provided for the loss or
expenses incurred by him for maintaining the property.
Under order 40 rule (2), the court can fix the remuneration to be paid to the
receiver for the services provided by him. The court can pass a general or
specific order regarding the same.  

For example, The Delhi high court has provided in Delhi High Court (original
side) rules,1967, the  for remuneration of the receiver as follows:

Rents recovered, outstanding recovered, the value realised on the sale of

movable and immovable properties calculated on anyone estate:

On First Rs. 10,000 : 5 %

Above Rs. 10,000 up to Rs. 20,000 : 3 %
Above Rs. 20,000 up to Rs. 50,000 : 2 %
Above Rs. 50,000 up to Rs. 1,00,000 : 1 %
Above Rs. 1,00,000 : ½ %
Similarly, for taking custody of money, 1 %, for taking custody of
Government securities of stocks, shares, 1 % of the estimated value.

If no remuneration is specified for any work, such remuneration can be

granted, as the court may think reasonable, on the application of the
receiver.

Can a collector be appointed as a receiver?

Yes, according to (Order 40 rule 5), a collector can be appointed as a

receiver if the revenue generated from the property is received by the
government, the court can appoint a collector as a receiver with his consent
if the court thinks that management of such property by collector will
promote the interests of those who are concerned.

Temporary Injunctions (Order 39)

What is a Temporary injunction?

Under the Specific Relief Act, 1963, Section 37 deals with a temporary
injunction. Temporary injunctions continue for a specified period of time or
until the further order of the court. They may be allowed at any stage in a
suit and are managed by the Code of Civil Procedure (1908).
The essential purpose for granting this injunction is to secure the interests of
an individual or the property of the suit until the final judgment is passed.
The factors looked into while providing such an injunction are:

1. If a party has a case of prima facie?

2. If the balance of convenience is in favor of the complainant?
III. Whether the plaintiff would suffer irreparable damages before the
judgment is passed?

The time period of such an injunction is dependent on the discretion of the

court. This kind of injunction was also provided as under the case Union of
India v. Bhuneshwar Prasad.

Some examples of cases stated in the CPC where temporary injunction can
be granted are:

Where any property in dispute in a suit, which is probable of getting

wasted, destroyed or estranged by any party to the suit, or illegally
sold in execution of a decree; or
Where the defendant threatens to remove or dispose of his property in
order to defraud his creditors; or
Where the defendant threatens to deprive the plaintiff of his property
or threatens to cause injury to the plaintiff in connection with the
property in dispute in the suit; or
In any case to prevent the defendant from committing a breach of a
contract or any other injury;
Where pursuant to sections 38 and 41 of the Specific Relief Act, no
perpetual injunction or mandatory injunction could be granted;
Where to stay, the operation of an order for the transfer, suspension,
reduction of rank, obligatory retirement, dismissal, removal or
otherwise termination of service of any person appointed to public
service and post in connection with State affairs, including any
employee of any company or company-owned or controlled by the
Government of the State;
Where to stay any disciplinary proceedings, pending or intended or
having the effect of any adverse entry against any person appointed
to the public service and to post in connection with the State’s
affairs, including any employee of the company owned or controlled
by the State’s government; or
 Torestrict any election;
Where to restrain any auction intended to be made or restrain the
effect of any Government auction; or stay the proceedings for the
recovery of any dues recoverable as revenue on land unless
adequate security is provided, and any injunction order granted in
breach of these provisions shall be void.
In all cases, except where the object of granting the injunction appears to be
defeated by the delay even before the injunction is granted, the Court shall
issue a direct notice of the request for the same to be given to the other
party:

Provided that, where it is proposed to grant an injunction without notice to

the other party, the Court records the reasons for its view that the purpose
of granting the injunction would be defeated by delay and requires the
applicant to:

(a) deliver to or send to the other party by registered post, immediately

after the order of granting the injunction,

(i) a copy of the request for the injunction together with a copy of the
affidavit filed in support of the request;

(ii) a copy of the complaint; and

(iii) a copy of the documents on which the applicant relies;

(b) to file, on the day on which such injunction is granted or on the day
immediately following that day, an affidavit stating that the copies aforesaid
have been so delivered or sent.

However, the court must dispose of such suits within a period of thirty days
from the date of granting an injunction and in instances where it is not able
to do so, it must specify the reasons for its inability.

Order for injunction may be discharged, varied or set aside– The CPC also
states that, at the request of any party who is dissatisfied with the order,
any order for injunction may be discharged or varied or set aside by the
Court; subject to the knowledge that if a party made a false or misleading
statement in a request for a temporary injunction or in any affidavit support,
for such a request.

Furthermore, where an injunction has been issued after giving a party the
opportunity to be heard, the order shall not be discharged, varied or set
aside on the request of that party unless such discharge, variation or set-
aside is necessitated by a change of circumstances or unless the Court is
satisfied that the order has caused that party difficulty and hardship.

Injunction to a binding corporation on its officer– An injunction to a

corporation is binding not only on the corporation itself but also on all
members and officers of the corporation whose personal actions it seeks to
curtail.

The interlocutory orders passed with regard to injunctions as stated in the

CPC are as follows:

Power to order interim sale– Upon application by any party to a lawsuit, the
Court may order the sale by any person named in that order, and on such
terms as it considers fit, of any movable property that is the subject of such
a lawsuit or that is attached before a judgment in such a lawsuit, which is
subject to rapid and natural decline or which it may, for any other just and
sufficient reason may be desirable to be sold off.

Detention, preservation, inspection, etc. of the subject-matter of the lawsuit:

(1) the Court may, at the request of any party to the proceedings and under
such conditions as it considers fit:

(a) make an order for the detention, preservation or inspection of any

property that is the subject of the proceedings or as to which any question
may arise therein;

(b) for all or any of the aforementioned purposes authorize any such person
for any such purpose;

(c) authorize samples to be taken or any observations to be made or

experiments to be tested for all or any of the aforementioned purposes
which may seem necessary or useful for the purpose of obtaining full
information or evidence.

(2) The provisions governing the execution of the proceedings shall, mutatis
mutandis (making necessary alterations while not affecting the main point at
issue), apply to a person authorized to enter under this rule.

Application for such orders to be made after notice:

(1) The plaintiff may request an order under Rule 6 at any time after the suit
has been instituted.

(2) An application by the defendant for a similar order may be made at any
time after its appearance.

(3) Before making an order pursuant to Rule 6 or Rule 7 on an application

for that purpose, the Court shall, except where it appears that the purpose
of making such an order would be defeated by a delay, issue a direct notice
to the other party.

When a party may be put in immediate possession of land which is the

subject-matter of a suit: Where land paying revenue to Government, or a
tenure liable to sale, is the subject-matter of a lawsuit, if the party in
possession of such land or tenure fails to pay the Government revenue, or
the rent due of the tenure to the proprietor, as the case may be, and such
land or tenure is consequently ordered to be sold, any other party to the
lawsuit claiming to have an interest in such land or tenure may, upon
payment of the revenue or rent due previously to the sale (and with or
without security at the discretion of the Court), be placed in immediate
possession of the land or tenure; and the Court in its decree, may award to
the defaulting party the amount so paid, with interest thereon at the rate
that the Court considers fit, or may charge the amount so paid, with interest
thereon at the rate ordered by the Court, in any adjustment of the accounts
may be directed by the decree passed in the suit.

Deposit of money, etc. in Court: Where the object of a lawsuit is money or

anything else capable of delivery and any party thereof admits that it holds
such money or anything else as a trustee for another party or that it belongs
to or is due to another party, the Court may order the same to be deposited
in court or delivered to that last-named party, with or without security,
subject to the provisions of the judgment.

Summary Procedure (Order 37)

Summary suit or summary procedure is given in order XXXVII of the Code of

Civil Procedure, 1908. Summary procedure is a legal procedure used for
enforcing a right that takes effect faster and more efficiently than ordinary
methods. [1] Its object is to summarise the procedure of suits in case the
defendant is not having any defence.

A summary suit can be instituted in High Courts, City Civil Courts, Courts of
Small Causes and any other court notified by the High Court. High Courts
can restrict, enlarge or vary the categories of suits to be brought under this
order. [2]

Classes of suits where summary procedure is applied

Summary suits can be instituted in case of certain specified documents such

as a bill of exchange, hundies, and promissory notes. Summary procedure is
applicable to recover a debt or liquidated demand in money arising on a
written contract, an enactment or on a guarantee.[3]

What is a bill of exchange?

A bill of exchange is a written unconditional order by one party (the drawer)

to another (the drawee) to pay a certain sum either immediately or on a
fixed date for payment of goods and/or services received. [4] If the sum is
to be paid immediately it is called a sight bill. Term bill is the bill of
exchange where the sum is to be paid on a fixed date.

Hundies

A Hundie is an unconditional order in writing made by a person directing

another to pay a certain sum of money to a person named in the order. It is
a financial instrument evolved on the Indian sub-continent and used for
trade and credit purposes.[5]

Promissory notes
A promissory note contains an unconditional promise to pay a certain sum to
the order of a specifically named person or to bearer—that is, to any
individual presenting the note. A promissory note can be either payable on
demand or at a specific time. [6]

Liquidated demand in money

Liquidated demand is a demand for a fixed sum e.g. a debt of Rs. 50. It is
distinguished from a claim of unliquidated damages, which is a subject of the
discretionary assessment by the court. [7]

Institution of summary suits

In order to institute a suit under summary procedure, the nature of suit

must be among the following classes:-

Suits upon bill of exchange, hundies and promissory notes

Suits for recovering a debt or liquidated demand in money, with or without

interest, arising:-

On a written contract, or

On an enactment (the recoverable sum should be fixed in money or it
should be in the nature of a debt other than a penalty), Or
On a guarantee (here the claim should be in respect of a debt or
liquidated demand only)
A summary suit is instituted by presenting a plaint in an appropriate civil
court.

Contents of plaint for summary procedure

Apart from facts about the cause of action, the plaint must contain a specific
affirmation that the suit is filed under this order. It should also contain that
no such relief has been claimed which does not fall under the ambit of rule
XXXVII of the CPC. In the title of the suit, following inscription must be there
under the number of the suit:-

“(Under Order XXXVII of the Code of Civil Procedure, 1908)”  [8]

Procedures after institution of Summary suit

Under summary procedures, the defendant has to get the leave to defend
from the court. A burden is placed upon the defendant to disclose the facts
sufficient to entitle him to defend in the application for leave to defend.

Detailed procedures

After institution of a summary suit, the defendant is required to be

served with a copy of the plaint and summons in the prescribed
form.  
Within 10 days of service of summons, the defendant has to enter an
appearance.
If the defendant enters an appearance, the plaintiff shall serve on the
defendant a summons for judgment.
Within 10 days of service of such summons, the defendant has to
apply for leave to defend the suit.
Leave to defend may be granted to him unconditionally or upon such
terms as may appear to the Court or Judge to be just.
If the defendant has not applied for leave to defend, or if such an
application has been made and refused, the plaintiff becomes
entitled to the judgment forthwith.
If the conditions on which leave was granted are not complied with by
the defendant then also the plaintiff becomes entitled to judgment
forthwith.
Sub-rule (7) of Order 37 provides that save as provided by that order
the procedure in summary suits shall be the same as the procedure
in suits instituted in an ordinary manner. [9]

Can a summary suit be tried after the institution of an ordinary suit on the same cause
of action?

According to section 10 of the CPC, a court cannot proceed with the trial of a
suit in which the matter in issue is also directly and substantially in issue in a
previously instituted suit between the same parties. It is called the principle
of res sub-judice.The provision contained in the section is mandatory and no
discretion is left with the court.[10]
However, the word trial, in this case, has not been used in its widest sense.
The concept of res sub-judice is not applicable to subsequently instituted
summary suits.

The Court or the Judge dealing with the summary suit can proceed up to the
stage of hearing the summons for judgment. Judgment can also be passed
in favor of the plaintiff if:-

(a) The defendant has not applied for leave to defend or if such application
has been made and refused, or,

(b) The defendant who is permitted to defend fails to comply with the
conditions on which leave to defend is granted. [11]

When a leave to defend is granted

The following principles are applicable in the matter of grant or refusal of

leave to defend in summary suits:

(a) If the defendant satisfies the court that he has a substantial defence, the
defendant is entitled to an unconditional leave of appeal.

(b) If the defendant raises triable issues indicating that he has a fair or
reasonable defence, although not a positively good defence, the defendant is
ordinarily entitled to unconditional leave to defend.

(c) Even if the defendant raises triable issues, if a doubt is left with trial
judge about the defendant’s good faith, conditional leave to defend is
granted.

(d) If the defendant raises a defence which is plausible but improbable, the
trial judge may grant conditional leave to defend with conditions as to time
or mode of trial, as well as payment into court, or furnishing security.

(e) If the defendant has no substantial defence and raises no genuine triable
issue, then no leave to defend is granted.

(f) Where part of the amount claimed by the plaintiff is admitted by the
defendant to be due from him, leave to defend shall not be granted unless
the amount so admitted to be due is deposited by the defendant in Court.
[12]

Decree in summary suits

The plaintiff is entitled to a decree of a sum not exceeding the sum

mentioned in plaint, together with interest and cost in following conditions:-

If the defendant does not enter an appearance (ex parte decree)
If the defendant has not applied for leave to defend
If the defendant has applied for leave to defend but it is refused
If the leave to defend is granted then the suit proceeds as an ordinary
suit and decree is granted as per the CPC.[13]

Setting aside decree in summary suits

In the CPC, rule 13 of order IX deals with setting aside the ex parte decree.
The defendant has to satisfy the court that the summons was not duly
served or he was prevented by any sufficient cause from appearing in the
hearing.

Rule 7 of Order 37 says that except as provided in the order, the procedure
in suits under Order 37 shall be the same as the procedure in suits instituted
in an ordinary manner. Rule 4 of Order 37 specifically provides for setting
aside the decree, therefore, provisions of Rule 13 of Order 9 will not apply to
a suit filed under Order 37.

Under rule 4 of order XXXVII, the court has the power to set aside the ex
parte decree passed in summary suit. The court is empowered to stay the
execution of such a decree. Under this rule, an application is made either
because the defendant did not appear in response to summons and
limitation expired, or having appeared, did not apply for leave to defend the
suit in the prescribed period. To set aside ex parte decree, the defendant has
not only to show special circumstances which prevented him from appearing
but also facts which would entitle him to leave to defend.[14]

Difference between sufficient cause and special circumstances

For setting aside ex parte decree in an ordinary suit, the defendant has to
satisfy the court with sufficient cause for his non-appearance. In summary
suits, the ex parte decree may be set aside if the defendant shows special
circumstances.

The reasons offered by the defendant to explain the special circumstances

should be such that he had no possibility of appearing before the Court on a
relevant day. For instance, there was a strike and all the buses were
withdrawn and there was no other mode of transport. This may constitute
“special circumstances”. But if he were to plead that he missed the bus he
wanted to board and consequently he could not appear before the Court. It
may constitute a ‘sufficient cause’, but not a ‘special circumstance’.

Thus a ‘special circumstance’ would take with it a ’cause’ or ‘reason’, which

prevents a person in such a way that it is almost impossible for him to
attend the Court or to perform certain acts which he is required to do. Thus
the ‘reason’ or ’cause’ found in “special circumstances” is more strict or more
stringent than in “sufficient cause”. What would constitute ‘special
circumstances’, would depend upon the facts of each case. Special
circumstances (for the purpose of setting aside the ex parte decree) may
constitute a ‘sufficient cause’, but not vice versa. [15] 

Appeals from Original Decree ( Section 96 to 99A; Order 41)

Meaning of appeal

The term ‘appeal’ nowhere has been defined under the CPC. The Black’s Law
Dictionary, while construing the concept of ‘appeal’ in its most original and
natural sense, explains it as “the complaint to a superior court for an
injustice done or error committed by an inferior one, whose judgment or
decision the Court above is called upon to correct or reverse. It is the
removal of a cause from a Court of inferior jurisdiction to one of superior
jurisdiction, for the purpose of obtaining a review and retrial”.

Essentials of appealing cases

An appeal is a proceeding where a higher forum reconsiders the decision of a

lower forum, on questions of law & fact with jurisdiction to confirm, reverse,
modify the decision or remand the matter to the lower forum for fresh
decision in compliance of its directions. The essentials of appealing cases can
be narrowed down to 3 elements:

A decree passed by a judicial/administrative authority;

An aggrieved person, not necessarily a party to the original
proceeding; and
A reviewing body instituted for the purposes of entertaining such
appeals.

Right to appeal

The right to appeal is a statutory & substantive one. The statutory nature of
an appeal implies that it has to be specifically conferred by a statute along
with the operative appellate machinery as opposed to the right to institute a
suit, which is an inherent right. It is substantive in the sense that it has to
be taken prospectively unless provided otherwise by any statute. This right
could be waived off via an agreement, and if a party accepts the benefits
under a decree, it can be estopped from challenging its legality. However, an
appeal accrues to the law as found on the date of the institution of the
original suit.

One right to appeal

Section 96 of the CPC provides that an aggrieved party to any decree, which
was passed by a Court while exercising its original jurisdiction, is conferred
with at least one right to appeal to a higher authority designated for this
purpose, unless the provisions of any statute make an exception for it.
Section 97, 98 and 102 of the CPC enumerate certain conditions under which
no further appeal is permitted, hence attributing to a single right of appeal.

No right to appeal

No person has a right to appeal against a decision unless he is a party to the

suit, except on special leave of the Court. An essential element to be taken
into account while considering one’s right to appeal is whether such person
is adversely affected by the decision/suit, which is a question of fact to be
determined in each case.

Garikapati Veeraya v. Subbiah Chaudhary

In the instant case, it was held that the pre-existing right to appeal to the
Federal Court continued to exist and the old law which created such a right
also continued to exist. It construed to the preservation of this right while
recognizing the change in its judicial machinery from the Federal Court to
the Supreme Court. However, the continuance of the old law is subject to
the provisions of the Constitution.

First appeal

Section 96 of the CPC provides that an appeal shall lie from a decree passed
by any Court exercising original jurisdiction to the authorized appellate
Courts, except where expressly prohibited. A combined reading of Sections
2(2), 2(9), & 96 of the CPC indicates that a regular First appeal may/may
not be maintainable against certain adjudications.

Who may appeal?

A regular first appeal may be preferred by one of the following:

Any party to the suit adversely affected by a decree, or if such party is

dead, by his legal representatives under Section 146;
A transferee of the interest of such party, who so far as such interest
is concerned, is bound by the decree, provided his name is entered
on the record of the suit;
An auction purchaser may appeal against an order in execution setting
aside the sale on the ground of fraud;
No other person, unless he is a party to the suit, is entitled to appeal
under Section 96.
A person, who is not a party to the suit, may prefer an appeal from a
decree/order if he’s bound/aggrieved/prejudicially affected by it via special
leave of the appellate Court.

Appeal by one plaintiff against another plaintiff

In Iftikhar Ahmed v. Syed Meherban Ali, it was concurred that if there exists
a conflict of interest between plaintiffs and it is necessary to resolve it via a
Court to relieve the defendant, and if it is in fact decided, it will operate on
the lines of res judicata between co-plaintiffs in the subsequent suit.
Appeal by one defendant against another defendant

The rule in a case where an appeal is preferred not against the originally
opposite parties but against a co-defendant on a question of law, it could be
allowed. Such an appeal would lie even against a finding if it’s necessary
while operating as res judicata (a matter that has been adjudicated by a
competent Court and hence may not be pursued further by the same
parties).

Who cannot appeal?

A party who waives his/her right to prefer an appeal against a judgment

cannot file it at a later stage. Further, as inferred from Scrutton L.J.’s words:

“It startles me that a person can say the judgment is wrong and at the same
time accept the payment under the judgment as being right….In my opinion,
you cannot take the benefit of judgment as being good and then appeal
against it as being bad”,

If a party ratifies any decision of the Court by accepting and acknowledging

the provisions under it, it may be estopped from appealing that judgment in
a higher forum.

The appeal against ex parte decree

In the first appeal under Section 96(2), the defendant on the merits of the
suit can contend that the materials brought on record by the plaintiff were
insufficient for passing a decree in his favour or that the suit was not
otherwise maintainable. Alternatively, an application may be presented to
set aside such ex parte decree (it is a decree passed against a defendant in
absentia). Both of these remedies are concurrent in nature. Moreover, in an
appeal against an ex parte decree, the appellate court is competent to go
into the question of the propriety or otherwise of the ex parte decree passed
by the trial court.

No appeal against consent decree

Section 96(3), based on the broad principle of estoppel, declares that no

decree passed by the consent of the parties shall be appealable. However,
an appeal lies against a consent decree where the ground of attack is that
the consent decree is unlawful being in contravention of a statute or that the
council had no authority.

No appeal in petty cases

Section 96(4) bars appeals except on points of law in cases where the value
of the subject-matter of the original suit does not exceed Rs. 10,000, as
cognizable by the Court of Small Causes. The underlying objective of this
provision is to reduce the number of appeals in petty cases.

The appeal against Preliminary Decree

Section 97 provides that the failure to appeal against a preliminary decree is

a bar to raising any objection to it in the appeal against a final decree. The
Court in the case of Subbanna v. Subbanna provides that, the object of the
section is that questions which have been urged by the parties & decided by
the Court at the stage of the preliminary decree will not be open for re-
agitation at the stage of preparation of the final decree. It’d be considered as
finally decided if no appeal is preferred against it.

No appeal against a finding

The language of Section 98(2) is imperative & mandatory in terms. The

object appears to be that on a question of fact, in the event of a difference
of opinion, views expressed by the lower court needs to be given primacy &
confirmed. The appellate court cannot examine the correctness of the finding
of facts and decide upon the correctness of either view.

The appeal against a dead person

A person who has unknowingly filed an appeal against a person who was
dead at the time of its presentation shall have a remedy of filing an appeal
afresh against the legal heirs of such deceased in compliance of the
Limitation Act.

Forms of appeal

Appeals may be broadly classified into two kinds:

First appeal; and

 Second appeal.
The sub-categories under appeals are:

Appeal from original decree;

Appeal from order;
Appeal from appellate decree/second appeal/to High Court;
Appeal to the Supreme Court.

Forum of appeal

It is the amount/value of the subject-matter of the suit which determines

the forum in which the suit is to be filed, and the forum of appeal. The first
appeal lies to the District Court if the value of the subject matter of the suit
is below Rs. 2,00,000; and to the High Court in all other cases.

Appeals from Appellate Decrees (Section 100; Order 42)

As per Section 100 of the Civil Procedure Code, 1908:

An appeal shall lie to the High Court for the decision made by the
District Court.
An appeal lies if the decree is passed ex-parte.
If High Court is satisfied that substantial question of law is involved it
shall formulate the decisions.
It is to be noted that the second appeal is on the grounds of a substantial
question of law not on finding errors of facts.

Nature and Scope

Nature of the second appeal

The right to appeal is not inherited but it is created by statute. The

right to file suits is inherent in nature.
This right starts from the date of filing suits.
The decision of Appellate Court is final.
The rights cannot be declared void until and unless declared by the
statue.
Scope of the Second Appeal

The Second appeal can be exercised only when the case falls under these
categories-

(a) Question of law is involved.

(b)  Question of law should be substantial.

Other justification defined as under Section 100 of CPC.

Question of fact wrongly determined should not be the criteria for the second
appeal

Cases Laws

In the case of Dudh Nath Pandey vs Suresh Chandra Bhattasaali, it was held
thatThe High Court can not set aside the finding of facts by the First
Appellate Court.

In the case of Dnyanoba Bhaurao vs. Maruti Bhaurao Marnor, it was held
that finding of fact is against the weight of evidence and there is no question
of law in this.

The substantial question of law

The term substantial question of law has not been defined anywhere under
CPC but it was first time interpreted by Supreme Court in the case of Sir
Chunni Lal Mehta &Sons Ltd vs Century Spg & Mfg co.Ltd.

The proper test in case of determining the substantial question of law differs
from our opinion and opinion of the court, in our opinion, it is of general
public importance or if it affects the rights of parties and also when decisions
are not finally settled by the court or federal body and in cases wherein the
court perceives that there involves a principle then that principle to be
applied when there is a substantial question of law.

The question of law to be substantial it should be questionable, it will also

depend upon the facts and circumstances of the case.
In the case of Mahindra and Mahindra Ltd. vs. Union of India, it was held
that case should involve questions of law not merely question of law.

The court should record the reason for the substantial question of law.

In the case of M.S. V Raja vs. Seeni Thevar, it was held by the Supreme
Court that formulation of a substantial question of law may be inferred from
the kinds of questions actually considered and decided by the court in the
second appeal, even though the substantial question of law is not specifically
and separately formulated.

Question of the law of general importance

The second appeal can only be filed when there involves a question of law
and question of law should be substantial. If it is of general public
importance or if it affects the rights of parties substantially. Section 100 Of
CPC also deals with the importance of the question of law;

Clause (3) states The memorandum of appeal shall state that a substantial
question of law is involved.

Clause (4) states the High Court is satisfied that it involves a substantial
question of law in any case and it shall formulate the question.No second
appeal in certain cases. This is defined under Section 102 of CPC:

No second appeal shall lie when it is of cognizable nature by courts of

small issues.
No second appeal shall lie when there is the finding of errors in the
jurisdiction.

No letters patent appeal

Letter Patent Appeal is an appeal against the decision of a single judge in the
same court. This saves the petitioner from going to the Supreme Court,
saving a lot of costs.

In this, the petitioner has the option to move the case to another bench
where there is more than one judge.
Article 226 and Article 227 of the Indian Constitution has provision and
judgement passed in Article  226 states that it can be issued to any person
or authority in any cases and Article 227. It empowers The High Court to
have superintendence over subordinate courts and tribunals. The judgement
of Article 227 does not fall in this category.

The intra-court appeal in case of High Court is for 30 days and it is for 90
days in case of Supreme Court.

Letter of Patent Appeal is not maintainable in the Arbitration Act:

The high court of Bombay held that LPA is not maintainable under
Section 8 of arbitration.
Only section 37 of the arbitration act would apply.
Restoration application along with the application of condonation is not
maintainable.
LPA shall not lie from the decree, judgement of the single bench under
section 100.
Order of suit, not a judgement from one court to another is not
maintainable.

Forum of the second appeal

Appeal from original decree– Generally every decree passed by subordinate

court firstly appeal has to lies to High Court. But appeal shall not lie if it has
been passed by the consent of the parties under Section 96 of CPC.

Appeal from order

An appeal shall lie from the order which is appealable;

It is an order made under section 35A,i.e Compensatory cost.

Refusing leave to institute a suit under nature of section 91 and 92.
 An order under section 95 i.e compensation for obtaining arrest, or
injunction.
 Insufficient grounds.
 Any order made under rules from which an appeal is expressly
allowed by rules.
 An order made under this code imposing a fine or directing the arrest.
Appeal from Appellate decree

 An appeal shall lie to High Court if decree passed by the appellate
court.
 If the judgement is ex-parte.
 If it involves a substantial question of law.
 The substantial question of law has to be formulated otherwise appeal
would  be dismissed.

Appeal to the Supreme Court

An appeal shall lie to the Supreme Court if-

Thecase involves a substantial question of law which is of general

importance.
When the High Court thinks of themselves the case is deemed to be fit
and decided by the Supreme Court.

Grounds of Appeal

Appellant has to mention grounds of appeal in the memorandum of

appeal.
Appellant has to mention the ground of objection and present it before
the Appellate Court.
The new ground can be raised by additional application later on, and
the High Court has the power to reject or accept the application.

Power of High Court to decide the issue of fact

This is defined under Section 103:

The High Court can decide the issue of facts if sufficient evidence is found
and the court thinks it is necessary for the disposal of an appeal –

If it has not been decided by lower Appellate Court or both by the Court at
the first instance and to the lower Appellate Court or if it has been wrongly
decided by Court and there involves a substantial question of the law which
is defined under section 100 of CPC.

Procedure at hearing
 Every appeal shall be in the form of a memorandum signed by the
appellant and to be presented before the court.
Where memorandum is not made as per prescribed by law then the
court has the power to either reject or return the application to the
appellant and can give the party prescribed time to submit an
application again.
When an appeal is not made on time then a statement of reason along
with some proof should be submitted to court and court must satisfy
from the application that there is reasonable cause for the
application not made on time.
No order of stay of execution of a decree shall be made unless the
court decides to hear the appeals.
Registry of Memorandum of appeal is necessary.
The Appellate Court, after calling the respondent to present before the
court and ask to give an answer and also ask him to give application
after application court may call the Appellant to pay the Security
Cost.
The appellant Court after hearing to the appellant may dismiss the
application without sending the notice to the lower court and also
without sending a notice to the respondent.
The appellate court should fix a day for hearing and give notice to the
respondent if the respondent does not appear on a given day then
case will be ex- parte.
The respondent may do any cross objection.

After hearing the appeal the appellate court may-

Remand the case.

May frame the issue and refer it to for trial.
Take additional evidence or requires such evidence to be taken.
The appellate court after resetting the issue may pronounce the
judgement.

Document to be submitted with the appeal

Form No.
The order appealed against -2 copies.
Order of Assessing Officer- 2 Copies.
Grounds of appeal.etc.
Pending appeals

An appeal itself does not operate as a stay of proceedings until the decree/
judgement appealed and execution of decree not stayed. An appeal is filed
to appellate court however the appellate court can order a stay of execution
if the court thinks it necessary.

If the application is made for seeking stay before the expiration of time and
if the court thinks it necessary can grant the execution of stay.

The probability of loss or party suffering loss and the party has filed an
application to grant a stay and that too without delay then the court can
grant a stay.

Cases

In the case of Atma Ram Properties (p) Ltd. v. M/s. Federal Motors Pvt.Ltd

Stay order can be made conditional too. But the condition attached to stay
order must be reasonable.

In an appellate court stay of proceedings can not be in operation for more

than six months it has been held by the Supreme Court, in Asian
Resurfacing of Road Agency Pvt. Ltd.& Anr. V. Central Bureau of
Investigation.

General Provisions relating to Appeals (Section 107,108)

Reference to High Court (Section 113; Order 46)

Nature and scope

A court subordinate to the High Court is empowered to refer the case under
Section 113. The court in relation to Section 113 means a court having
Original Civil Jurisdiction. A reference can be made only when there is a
question of law or validity of any Act or Ordinance or of any provision of the
Act is involved and can be sought only in a pending suit, appeal, or other
proceedings. Section 115 deals with revision. It empowers the High Court to
call for the record of any case decided by a court subordinate to it.

Conditions

Where any matter involving a substantial question of law is referred by the

subordinate court to the High Court for its opinion upon that matter it is
known as a reference. According to Section 113, any court can refer the case
to the High Court for its opinion and the High Court may then make an order
as it deems fit subject to certain conditions and limitations.

Rule 1 Order XLVI for the purpose of reference provides certain conditions
and limitations that are needed to be satisfied for the High Court to entertain
the reference from the subordinate court. These conditions are given below :

There should be a pending suit or appeal where the decree is not

subject to appeal.
There must be a question of law or usage having the force of law.
The Court that is trying the suit or appeal or executing the decree
must entertain reasonable doubt on that question of law.
As per proviso to Section 113, the question of law involves questions relating
to the validity/provisions of any Act, Ordinance, or Regulation or other
questions.

Who may apply?

A subordinate court may refer the case with its own opinion on the point to
High Court either on its own motion or; on the application of any of the
parties.

In Manager Metro Railway vs M/S. B.C.L. Secure Premises it was ruled that
Section 113 is not a provision that enables the High Court to take reference
suo moto or to order a reference. It is a provision that enables the
subordinate court to refer the case to the High Court.

Power and duty of referring court

To entertain the doubt on the question of law. In Banarsi Yadav vs Krishna

Chandra Dass, it was held that a subordinate court may refer a case to the
High Court when there is reasonable doubt regarding the constitutional
validity of an Act.

Power and duty of the High Court

To make any order as it thinks fit to when the case is referred to it by
the subordinate court.
Answer or refuse to answer the question in a case and send the case
back to the referring court for disposing it.
To quash the case referred to it.

Article 228 and Section 113

In Ranadeb Choudhuri vs Land Acquisition Judge, the court observed,

Section 113 of the Civil Procedure Code is a statutory provision whereas
Article 228 is a constitutional provision. Section 113 does not relate to the
interpretation of the constitutional provisions but to the question of the
validity of an Act. Both Section 113 and Article 228 may relate to a common
case but are not coextensive.

It was held in Rama Sundari Devi v. Indu Bhusan Bose that under Section
113 the court, subject to certain conditions, may state and refer the case to
the High Court for its opinion and the proviso to this section specifically
mentions the case relating to the validity of an Act. Whereas under Article
228, if the High Court is satisfied that a case is pending in a subordinate
court that involves the determination of the substantial question of law for
the interpretation of the Constitution. The High Court shall withdraw the case
and either dispose of the case itself or determine the question of law and
return the case to the court from which the case has been withdrawn.

Procedure at hearing

The following procedure has to be followed at the time of hearing:  

As per Rule 1, the court trying the suit or appeal or executing the
decree either on its own or on an application of the parties will draw
up the statement of facts and point of doubt of the case and pass a
decree or order contingent upon the high court on the points
referred.
 After hearing the parties the High Court will decide the points so
referred. A copy of the judgment along with the signature of the
registrar will be transmitted to the referring court as per Rule 3.
The referring court on receiving the copy will proceed in confirmation
with the High Court’s decision to dispose of the case.
The High Court has been vested with the power under Rule 5 to make
such orders and to amend, alter, cancel, set aside any decree or
order the referring court has passed or made.
As per Rule 7, In case the question arises as to the jurisdiction of small
causes court, a record with the statements of the reasons for doubt will be
submitted to the High Court.

Costs

Rule 4 of Order XLVI talks about the costs of reference to the High Court. It
says that if any cost is consequent upon a reference for the decision of the
High Court, it shall be deemed to be the costs in the case.

Review (Section 114; Order 47)

Order XLVII in the Code of Civil Procedure, 1908 (CPC) together with Section
114 of the Act, provides the procedure for Review. Section 114 merely
produces the conditions necessary for the filing the application for Review to
the ‘court’ by which decree or order, sought to be reviewed under the
application, was passed or made. While Order XLVII along with the same
conditions as enumerated in the section, lays down grounds for Review and
other procedural rules governing the same.

In order to understand the legal procedure, Two Primary Aspects of the

concept need to be borne in the mind, which are as follows –

“Same Court” – Rule 1 of the Order specifically provide that application for
Review of the decree or order has to be made to the very same court which
passed such decree or made such order.

“Court” – The term has not been defined in the CPC, but impliedly
interpreted as “Any Court having the jurisdiction to try the suits of a civil
nature”[i], now such civil jurisdiction may be such as conferred upon the
courts by the CPC itself, or upon the Tribunals by the special statues, or
upon the Supreme Court and High Courts under their civil appellate
jurisdiction[ii], by the Constitution of India.

Review Jurisdiction for the Supreme Court – The Apex Court, therefore also
falls within the meaning of the term “Court” while hearing any suit of a civil
nature. It however has been separately empowered with the review
jurisdiction under Article 137 of the Constitution, but for the cases other
than that of civil and criminal, since for such cases, it is being governed by
the CPC and Criminal Procedure Code only[iii].

Review Jurisdiction for the High Courts – Apart from the power conferred
upon it as a “Civil Court” under the CPC, it has been held by the Apex Court
in the case of Shivdeo Singh v. State of Punjab[iv] :

“It is sufficient to say that there is nothing in Article 226 of the Constitution
to preclude a High Court from exercising the power of review which inheres
in every Court of plenary jurisdiction to prevent miscarriage of justice or to
correct grave and palpable errors committed by it.”

ORDER XLVII

CONDITIONS FOR APPLICABILITY

An application for Review may be filed by any person, if such person

perceive himself as aggrieved by[v] –

“A decree or order which has been passed or made, by any civil court, And
from such decree or order, an appeal is allowed, But no appeal has been
filed yet, at the time of filing of the Review application”,

However once, the review application is filed thereafter, there is no legal bar
on filing of an appeal from such decree or order. If appeal is so preferred
and decided by the speaking order i.e. on merits, before the Review
application, then the Review application cannot be continued with[vi]. And
vice versa i.e. where review application is heard and decided before the
appeal then appeal becomes liable to be dismissed. So, where both are
pending, whichever is decided first, will be said to have superseded the
original decree or order, operationally therefore, such original decree or
order no longer stands and hence the other pending proceeding will be
estopped.

Although, if appeal or even Special Leave Petition (SLP) is preferred,

whether before the institution of Review or after it, but is not heard and gets
dismissed for the reason being legally incompetent or due to the “application
of Law of Limitation”[vii], such dismissal does not create any legal
obstruction for the filing of Review or proceeding thereof, if the decision is
otherwise competent to get reviewed on the grounds provided in the
Order[viii].

Or, “a decree or order has been passed or made, by any civil court And,
from such decree or order, no appeal is allowed”,

This point of application provides the opportunity to an aggrieved person, in

presence of a legal prohibition on filing of an appeal, to get his case reheard
on any of the grounds as set out in the Order.

Since this condition being Non-Appealable, is one which is condition

precedent for the Revision as well[ix], and so the confusion may arise for a
layman if he is aggrieved by a decree or order, that which of the recourse
available, should be opted. To consider the issue, it has to be understood
that Review is wider in scope than Revision, since Revision can be done only
on the grounds of jurisdictional or procedural error by the High Court, while,
as already discussed that Review can be done only by the same court and
grounds for Review, as explained below in this article, are much wider than
merely jurisdictional or procedural error.

In fact, it may technically be said that, if a decree or order, is eligible to get

revised under the “Revision” then it is mechanically eligible to get reviewed
under the “Review” as well, provided such decree or order is Non-
Appealable, but so is not the other way round, due to the very specific scope
of Revision.

Or, “a decision on a reference from a court of a small cause”.

Where, reference has been made by a court of a small cause, to the High
Court under Order XLVI, the decision of the High Court, on such reference is
binding, but person aggrieved by such decision may apply for review of such
decision.

WHO CAN FILE A “REVIEW”

“Any person who consider himself aggrieved” is what the rule provides, and
it being legally clear in terms, on the face, gives the interpretation that
person filing a review need not necessarily be a party to the suit, rather may
be one who simply derives a legitimate interest in the suit or according to
him, such interest has been adversely affected by the decision of such suit.
And therefore any such person would have locus standi to file a review.

Supreme Court in the case of Union of India v. Nareshkumar Badrikumar

Jagad & ors.[x], held:

“Even a third party to the proceedings, if he considers himself an aggrieved

person, may take recourse to the remedy of review petition. The
quintessence is that the person should be aggrieved by the judgment and
order passed by this Court in some respect”.

GROUNDS FOR REVIEW:

Review can be filed, if there is[xi]:

“Discovery of New and Important matter or evidence, which, after the

exercise of due diligence was not within the knowledge of the person seeking
review or could not be produced by him at any time when the decree was
passed or order made”,

Discovery of any new matter or evidence necessarily has to be an important

or relevant as such to the extent that had it been brought on record at any
time when the decree was passed or order made, it would have an impact
and might have altered the decision[xii]. Moreover, absence of such
important matter or evidence on record at the time of decision, must not be
the result of negligent attitude of the concerned person and therefore such
person applying for Review is required by law to strictly prove that such
matter or evidence was not within his knowledge or could not be adduced,
even after exercising due diligence and unless such proof is given,
application shall not be granted[xiii].
Court may take subsequent events into consideration while reviewing a
decision[xiv], however the fact that the question of law on which decision,
sought be reviewed, is based has been reversed or modified subsequently by
the higher authority in any other case, would not make it a new and
important matter, to review the decision[xv].

Illustration – “A sued B for a sum of money alleged to be due under an

agreement and obtained the decree for the same, against which B,
subsequently filed an appeal in the Privy Council, and while the appeal was
pending, A obtained another decree against B on the strength of the former
decree, for another sum of money alleged by him to have become due under
the same agreement and later Privy Council reversed the former decree in
the appeal, on the basis of which B applied to the court which had passed
the second decree, for the Review on the ground of the decision of Privy
Council and so was accepted and held by the court to be a new and
important matter”[xvi].

Or, “some mistake or error apparent on the face of the record”,

The mistake or error should be such, which is very obvious and visible itself
on the face of it, and therefore any error found out from the judgment after
a long reasoning and law based analysis, cannot be said to be one apparent
on the face of record, as a ground for review. However, such mistake or
error can be of fact and as well as of law.

Illustrations – “Non-consideration of the very obvious application of

particular law, such as law of limitation or particular provision to the facts of
the case, setting aside of the ex parte decree without being satisfied of the
any of the conditions laid down in Order 9 Rule 13, application of religious
law which has not been legally recognized, wrong interpretation of a settled
legal issue, where a commission was issued to examine a witness in a
country where no reciprocal arrangement exists, have been held to be an
error apparent on the face of record”[xvii].

Or, “any other sufficient reason”.

Before 1922, the application of the term “Sufficient reason” was unrestricted
and unregulated, finally in that year a principle came to be laid down by the
Privy Council in the case of Chhajju Ram V. Neki[xviii], which can be
summarized as that “the third ground mentioned, is no doubt giving wide
scope to the grounds for review, but at the same time that “sufficient
reason” has to be at least analogous (ejusdem generis) to either of the other
two grounds and the mere reason that decree was passed or order made on
erroneous ground that court failed to appreciate the important matter or
evidence, would not make any good ground for review, and therefore in such
cases, the appeal and not review, is the remedy to get such erroneous
decree or order corrected”[xix].

Illustrations – Failure to adhere to legal provision which required the court to

act in a particular manner would fall within the meaning of “Sufficient
Reason” as analogous to the “Error Apparent on the Face of the Record”[xx].
Order of the dismissal of a suit due to default of the plaintiff, cannot be
reviewed on the ground of misapprehension of the counsel as sufficient
reason, but if order was on its face illegal then such order may be reviewed
on the ground as error of the law apparent on the face of the record.

RESTRICTIONS

The order under its Rule 9 excludes two following kinds of application, from
the consideration –

“An order made on the application for a review”e. grant or rejection of the
application, either case cannot be reviewed.

“Decree passed or order made on review”e. where application is granted,

case is re-heard and the decree or order which is passed or made on merits
of the case, superseding the original one, cannot be further sought to be
reviewed for the second time.

Revision (Section 115)

Meaning

Revision means to go through something carefully, thoroughly and diligently.

Cases can be revised by the High Court as it possesses revisional jurisdiction
as defined under Section 115 of the Code of Civil Procedure. The High Court
has the right to revise cases decided by subordinate courts to ensure
delivery of justice and maintenance of fairness.

Nature, Scope and Object

The primary objective of a revisional authority of the High Court empowered

by Section 115 is to ensure that no subordinate court acts arbitrarily,
illegally, capriciously, irregularly or exceeds its jurisdiction; and allows the
High Court to guarantee the delivery of justice while ensuring that the
proceedings are conducted in accordance with the rule of law and
furtherance of fairness. It must be noted that the judges of subordinate
courts have the absolute authority to decide on cases. They do not commit
any “jurisdictional error” even when they wrongfully or extra-judicially
decide a case. The High Court has the power to revise these jurisdictional
errors committed by subordinate courts. This provides an opportunity to any
aggrieved party to rectify a non-appealable order by a subordinate court.

The High Court can revise any case by a subordinate court in which no
appeal lies when:

The subordinate court has exercised jurisdiction not vested in it by

law.
The subordinate court has failed to exercise jurisdiction vested in it by
law.
The subordinate court exercises its jurisdiction illegally or with material
irregularity or in breach of some provision of the law or by
committing some errors of procedure in the course of the trial which
may have affected the ultimate decision.

Who may file?

The application for revision can be filed by any aggrieved party once the
case is decided, provided that there is no appeal against the case presently.
The High Court may then decide to revise the case if the proper cause is
discovered such as extra-judicial activity or illegal and erroneous procedure
practised by the subordinate court. The High Court may also exercise
revisional jurisdiction suo moto under the Code of Civil Procedure.
In the case of S.Muthu Narayanan V. Paulraj Naicker, 2018, the revision
petition is dismissed and the order passed previously is confirmed as the
revision petitioner has no right to challenge the executability of the decree.

Conditions for Revision

The conditions when the High Court can exercise its revisional jurisdiction is
laid down in Section 115 of the Code of Civil Procedure. All these conditions
must be met for the High Court to exercise its revisional jurisdiction. These
are as follows:

Precedents

The case must have already been decided and judgement declared by the
subordinate court. A case cannot be revised if it has not been decided in the
first place and no judgement is given. The expression “case decided” was
not defined in the CPC, 1908. This gave rise to a number of conflicting
decisions on the question of whether the said expression included an
interlocutory order also. This conflict was resolved in the case of Major S.S.
Khanna V. Brig. F.J. Dillon, 1963 which declared that Section 115 applies
even to interlocutory orders. It was observed by Shah J.,“The expression
‘case’ is a word of comprehensive import; it includes civil proceedings other
than suits, and is not restricted by anything contained in Section 115 to the
entirety of the proceedings in a civil court. To interpret the expression “case”
as an entire  proceeding only and not a part of the proceeding would be to
impose an unwarranted restriction on the exercise of powers of
superintendence and may result in certain cases in denying relief to the
aggrieved litigant where it is most needed and may result in the
‘perpetration of gross injustice.”

In the case of Baldevdas Shivlal V. Filmistan Distributors (India) (P) Ltd.,

1969, the Supreme Court held that a case may be said to have been decided
if the court adjudicates for the purpose of the suit some right or obligation of
the parties in controversy. Every order in the suit cannot be recorded as a
case decided.

An explanation was added to Section 115 by the Amendment Act of 1976, on

the recommendation of the Joint Committee of Parliament. This makes it
clear that the expression, “case decided” includes any order made, or any
order deciding an issue, in the course of a suit or any other proceeding.
Thus, “any case which has been decided” means each decision which
terminates a part of the controversy involving the question of jurisdiction.

No appeal lies

There must not be any appeal lying against the case decided by the
subordinate court. The High Court cannot revise a case if there is a pre-
existing appeal against the case as the revision interferes with the appeal
and vice-versa. The revision can only be filed once the appeal is dismissed.
The word “appeal” includes both the first appeal and second appeal.
Therefore, the revision can only lie when the appeal is dismissed or does not
lie.

Jurisdictional error

The revisional jurisdiction can be applied by the High Court when the
subordinate court appears to have:

Acted in excess of jurisdiction vested in it by law, or

Failed to exercise the jurisdiction vested in it by law, or
Displayed material irregularity and exercised its power illegally or in
breach of the provisions of law.

Subordinate court

The High Court cannot exercise revisional jurisdiction unless a case is

decided by a court which is subordinate to the High Court. Only a court of
civil judicature is considered and this does not include any person acting in
an administrative capacity. As a general rule, where it is provided that a
matter should be decided by a particular court, the presiding officer of such
court will act as a court. But where it is provided that a particular judge
should decide a matter, the provisions of the statute will have to be
considered for determining whether the judicial officer acts as a court or as a
persona designata. The revision by the High Court is mainly done to rectify
the jurisdictional or procedural errors caused by subordinate courts in the
course of proceedings in any case when an application is filed by an
aggrieved party.

Alternative remedy
The power of revisional jurisdiction and its application lies under the
discretion of the High Court and cannot be claimed as a right by any
aggrieved party. Several factors are considered before the authority of
revisional jurisdiction is exercised. If there is the presence of an efficacious
or alternate remedy available to the aggrieved party, the court may not
exercise its revisional jurisdiction and instead suggest the alternate remedy
and relief to the aggrieved party. This is done to prevent the misuse of
revisional jurisdiction and make it applicable only in cases where necessary.

Limitations on revisional jurisdiction

Article 131 of the Schedule of Limitation Act provides a limitation period of

90 days for filing the revision under the Code of Civil Procedure from the
date of decree or order or sentence sought to be revised. Thus, the
limitation period prescribed for filing the revision against the impugned order
is 90 days. The application for revision must be filed with the High Court
within the limitation period.

In the case of Salekh Chand V. Deepak Sharma 2015, During the pendency

of the revision petition, an application was filed under Section 5 of the
Limitation Act by the revisionist. But it was declared by the Court that Article
131 of the Schedule of Limitation Act stated that the limitation period to file
for revision is 90 days. Thus, the revision petition was not barred by
limitation and allowed to proceed.

In the case of Samudrala Nagabhushanam V. Venkana Raghavayy, 1966,

the Court decided that the petition for revision in this particular case was
governed under Section 22 of the Andhra Pradesh Buildings Control Act,
1960 and not Role 41-A(2) of the Appellate Side Rules of the High Court of
Andhra Pradesh. Thus, the revision is not barred by limitation.

Suo moto exercise of power

The term ‘suo moto’ means on its own motion or self-decision. The judiciary
has the power to revise cases suo moto. This means that the small court has
the authority to make its own decision to exercise the power of revision and
takes the decision to revise any case on its own accord, i.e. without any
application filed by any aggrieved party. The sole decision as to the exercise
of the power of revision rests with the court and the aggrieved party is not
entitled to receive it. The judiciary takes up a matter on its own on grounds
of blatant violation of the law, to maintain public order, to prevent the gross
constitutional violation, to remedy grave injustice. This assumes the public
at large as one of the parties. Usually, an amicus curiae is appointed in such
matters to assist the court. A great amount of public interest rests in suo
moto exercise of revisional powers by the High Court.

In the case of Chimanbhai G. Patel V. D.Y. Collector, 1999, it was stated by

the Court that a Deputy Collector or Assistant Collector cannot exercise the
powers of revision suo moto. Therefore, the order was set aside as there
was no jurisdiction in the exercise of revisional powers.

Interlocutory Orders

The Interlocutory order which is often called interim order is a decision of

the court given during the proceedings and before the finality of a case to
ensure that the interest of either party is not harmed due to or during the
process of justice. It settles subordinate issues related to the main subject
due to the time-sensitive nature of those issues. Section 94 of Part VI of the
Code of Civil Procedure lists the ‘Supplemental Proceedings’ which mentions
how the court can issue interlocutory orders to prevent the ends of justice
from being defeated. The court can:

Issue a warrant for the arrest of the defendant or if he fails to comply

with any order for security, commit him to the civil prison.
Direct the defendant to produce any property belonging to him and
furnish it as security by placing it at the disposal of the Court.
Grant temporary injunction and commit a guilty person to a civil prison
in case of disobedience, and order his property to be attached and
sold.
Appoint a receiver of any property and enforce the performance of his
duties by attaching and selling his property.
Make any such interlocutory orders as may appear before the Court to
be just and convenient.
A few examples of interlocutory orders are as follows:

Appointment of a Commissioner to conduct search and seizure.

Temporary Injunctions.
Appointing a Court Receiver to collect any payments or rent.
Assign security to maintain a cause.
In the case discussed in Sub-Committee on Judicial Accountability V. Union
Of India, 1991, it was held that the Supreme Court will refrain from passing
any interlocutory order which has the potential to and may interfere with or
has an effect of pre-judgement on any delicate issue on the mail matter.

Death of Applicant

The death of an applicant does not abate the proceedings of the application
of revision as revision is not governed under Order 22 of the Code of Civil
Procedure. Once the application for revision is filed, the proceedings shall
continue despite the death of the applicant and the order shall be given to
the legal representative of the applicant.

Doctrine of Merger

The doctrine of merger is neither a doctrine of constitutional law nor a

doctrine statutorily recognised. It is a common law doctrine founded on
principles of propriety in the hierarchy of justice delivery system. It can be
observed when litigants agree to a settlement and seek to have their
settlement incorporated in a court order. The doctrine of merger cannot be
applied universally. It will depend on the nature of jurisdiction exercised by
the superior authority and the subject-matter in challenge laid shall
determine the applicability of merger. The superior jurisdiction should be
capable of reversing, modifying or affirming the order put in issue before it.
The High Court possesses the authority to reverse or modify the judgment of
a subordinate court in case of a violation of jurisdiction or failure to comply
with the jurisdictional rules. The doctrine of merger is based on the principle
of union of two conflicting interests which cannot be held by one person at
the same time. As observed in Section 111(h) of the Transfer of Property
Act, 1882 leasehold rights in favour of the appellants are extinguished under
the doctrine of merger.

Procedure of Revision

Revisional jurisdiction of the High Court can be exercised suo moto to ensure
the delivery of justice. The authority to revise a case of jurisdictional error of
subordinate courts lies with the High Court and cannot be demanded as a
right by any aggrieved party. This brings us to the second method which
involves an application filed by the aggrieved party for revision. This merely
brings the jurisdictional error of the subordinate court to the attention of the
High Court which may then decide to revise the case. The application may
also be denied if the High Court feels that substantial justice has been done.

Once the High Court initiates the proceedings, the case is revised to ensure
jurisdiction is not exceeded by the subordinate court. But no changes can be
made with regards to any decision of the subordinate court even if unlawful,
as long as the decision lies within its jurisdiction. After a decision has been
made and if there is extra-jurisdictional action by the subordinate court, it is
rectified and the reasons are recorded.

Recording of Reasons

The reasons for the dismissal of a case or changes to be applied in case of

extra-jurisdictional activity by a subordinate court are to be filed for record.
The recording of reasons is done to ensure the court can show cause or
prove the basis of its decision for changes made or refusal to make any
change with regards to the jurisdiction of the subordinate courts.

Letters Patent Appeal

Letter patent appeal (LPA) is an appeal by a petitioner against a decision of

a single judge by another bench of the same court. There are chances that a
single judge can go wrong when dealing with facts or laws. Thus, a remedy
is provided to challenge the decision of that single judge by a bench of more
than one judge of the same court. An LPA petitioner can save costs by
challenging the single judge this way rather than move the Supreme Court.
Usually, judgment and order passed under Article 226 of the constitution is
appealable as LPA, but judgment and order passed under Article 227 is not
appealable under this category.

The rules regarding the application of the Letter Patent Appeal is as follows:

Letter patent appeal can be filed in the High Court and only in such
High Courts that have been established by the letter patent.
Division bench can file a letter patent appeal to the Supreme Court. It
means it will also include a full bench of 5 judges, 7 judges and also
the Supreme Court.
Letter patent appeal is the only court established by a letter patent
under the constitution and it is called the second appeal.
Conversion of Revision into Appeal

The nature and scope of revisional jurisdiction is different from appellate

jurisdiction. If an order impugned is revisable, it cannot be converted into an
appeal if there is no presentation of appeal in the eyes of law; as seen in the
case of Munshi Singh v. Tula Ram (1980 MPLJ SN 61). The second appeal
cannot be converted into revision in exercise of discretion, as seen in the
case of T.K. Ramanujam Pillai v. Subramaniam (AIR 1967 Mad 298). If the
revision is not maintainable, the petitioner can file appeal explaining the
delay by filing an application under Section 14 of the Limitation Act along
with memo of appeal, as seen in the case of Om Prakash V. Dwarka Prasad,
2004.

Law commission’s view on Revision

The Law Commission states that the following should be kept in mind while
exercising the revisional powers of the High Court:

The ruling of the Court is absolute unless the party to whom it applies
can show cause why it should not apply. This is Rule Nisi and should
not be issued except under careful and strict scrutiny.
The record of the subordinate court should not be called for where no
stay in granted. And where it is necessarily required copies are to be
produced.
All efforts should be made to dispose of the revision within two to
three months where a stay is granted.

Case laws

Brijlal Ramjidas v. Govindram Gordhandas Seksaria(Judgement)

In Brijlal Ramjidas v. Govindram Gordhandas Seksaria,, Supreme Court held

that Section 13 speaks not only of “Judgment” but “any matter thereby
directly adjudicated upon”. The word ‘any’ clearly shows that all the
adjudicative parts of the judgment are equally conclusive.

Neeta vs. Shiv Dayal Kapoor & Others(Res sub-judice)

In Neeta vs. Shiv Dayal Kapoor & Others it was held the subsequent matter
can not be stayed if the conditions mentioned in Section 10 are not fulfilled.
In the apparent case, the two courts which tried the same issues were not
the courts having concurrent jurisdiction. Therefore, the proceedings in the
subsequent court were not stayed.

Lowe v. Haggerty(Res judicata)

In the case of Lowe v. Haggerty, a question was raised considering the

effect of former judgment for the defendant when he was sued by the guest.
It was held that a suit was bar by the driver of the car which had been
struck by another person. There was no previous record that disclosed what
was in the first proceeding. It was held that it was not possible to determine
what was the issue involved in the previous suit. A different situation was
there the court disposed of the record made by the parties. Nonsuit was not
granted in this case and the plaintiff’s appeal was refused.

Official Trustee vs Sachindra Nath(Jurisdiction and place of suing)

The court held that in order to deal with the matter the court must not be
enough to decide a particular matter but also the court has the power to
pass the order sought for.

Annapoorani Ammal vs G.Thangapolam(Appeals from Appellate Decree)

In the case of Annapoorani Ammal vs G.Thangapolam, it was held that the

High Court can only interfere when there involves a substantial question of
law.

A Sreenivasa Rao and Ors v. Govt of Andra Pradesh(Reference to High Court)

In A Sreenivasa Rao and Ors v. Govt of Andra Pradesh, it was held that the
subordinate court is not empowered and entitled to decide the validity of any
Act, Ordinance or Regulation and Section 113 makes it mandatory for the
subordinate court to refer the pending case to the High Court for
determining the question relating to the validity of an Act, Ordinance or
Regulation which is necessary for the case to be disposed of by stating its
reasons and opinions for referring the case to the High Court for its opinion.
BY
SAHANA GOPAL
ADVOCATE
HIGH COURT OF KARNATAKA