SUMMONS (S.

27-29 & ORDER 5)

Meaning: the intimation that is given to the defendant that a suit has been filed against him,
so that he can appear in the court to defend himself is called summons.

Simply put it is a document issued by the court against a person to be present in the court for
a specific purpose

Object: the object of summons is to give the defendant a fair chance to present his side of the
case so that the court can decide the case on merits and circumstantial facts of the case. It is
in line with the principles of natural justice.

Summon to defendant (section 27 and order 5 rule 1)

The court issues the summons to the defendant after a suit has been duly filed by the plaintiff.
The summon shall call upon the defendant to appear in front of the court to answers the
claims of the plaintiff in a written statement within 30 days .

Exemption to appear in person

No person against whom the summons has be issued shall be ordered to appear in the court
unless:

Order 5 rule 4

1. If he resides within the limits of the courts ordinary jurisdiction

2. Outside the limits of courts jurisdiction but less than 50 miles and 200 miles from the
court

Section 132

3. Women whose customs prohibit to make public appearance shall not be compelled to
appear in the court

Section 134

4. Other persons who are exempted from the code.

Mode of Service of Summons
There 5 types of summonses which can be issued by the court

Service of court (Order 5 rule 9)

Summons to the defendant who is residing within the jurisdiction of the court shall be served
through court officer or approved courier service or email etc Rule 9 (1).

If the defendant resides outside the jurisdiction of the court then the summons shall be served
by the officer of the court within whose jurisdiction he resides in. rule 9 (4)

If the defendant refused to accept the summons through any means of service the court shall
assume that the summons have been duly delivered. Rule 9 (5)

Service by plaintiff (order if the defendant is 5 Rule 9 A)

The court may also permit the service of summons by the plaintiff in addition serviceof
summons by the court. it is called dasti summons.

Personal or direct service (Order 5 Rule 10-16, 18)

The summons are issued directly or personally to the defendant. This type of service should
be considered ordinary service of summons.

Conditions to direct service

1. Where two are more defendants are present service shall be served to each of them.
Rule 11)
2. Summons should be served to defendant or the authorized agent of the defendant
personally. (rule 12)
3. In a suit relating to any business or work against a person not residing within court's
jurisdiction, it may be served to the manager or agent of carrying on such business or
work. (Rule 13.)
4. In a suit of immovable property of the service is not made to the defendant or his
authorized agent then the summons can be issued to any agent who is in charge of the
defendant property. (Rule 14)
5. If the defendant is not present at his residence and there is no chance of him being
found in a reasonable time and he has no authorized agent of his then summons should
be served to adult male or female of his family but not the servant. (Rule 15)
 6. the court officer who is deliver the summons shall take the signature of the person to
whom he is delivering the summons. For a acknowledgement that the summons has
been delivered. (rule 16)

Substitutes Service (Order 5 rule 17, 19-20)

It means service of summons which is substituted for ordinary modes service of summons.

Service without courts order (rule1 7)

When substituted service can be made without order of the court

Refusal of acknowledgement
The defendant or the agent authorized by the defendant refuses to sign the acknowledgement
as under rule 16.

Absence of Defendant
If the defendant is not present in is place of residence and he cannot be found within the
reasonable time and there is no authorized agent of the defendant of the court then the court
officer can affix a copy of the summons to the outer door of his residence.

Procedure after such service

The court officer will return the original copy of the summons to the court issuing the
summon. And state the reasons for :

1. affixing the copy

2. circumstances under which he affixed the copy
3. name and address in presence of whom the copy was affixed

Order 5 rule 19
if the court is satisfied on examination of the affidavit or the examination of oath of the
serving officer the court may declare the that the service has been duly served under rule 19
of order if the provisions of rule 19 are not complies it is to be said that service has not been
served according to the law. (State of J& K v. H. W., Mohammed,)
Service with Courts order (Order 5 rule 20)

If the court feels that the defendant is avoiding the service of summons or for any other
reason the court feels that service of summons can not be done in an ordinary way then the
court may service the summons by

1. by a affixing a copy of the summon in the court house and in the place where the
defendant is known to be last resided or carried out business .
2. in any other manner which the court thinks is fit

Rule 20 A
The court may service summons by advertising it in a daily newspaper and circulating ot
locally where the defendant is known to be last resided or carried out business.

Order 5 rule 20 (2) states that the substituted service is as effective as direct service or
serviced in person, the court shall assume that the summon has been duly served and provide
reasonable time for the defendant to appear in the court.

Service By post
A summon which has been duly addressed prepaid and duly sent to the registered post and
acknowledgement is lost and not returned to the court within 30 days the court shall assume
that the summons have been served.

Irregularity in service of summons

Prabhin Ram Pukhan v. State of Assam it has been held that the mere procedural lapse in
service of summons would not vitiate the process of proceedings of the court unless the
defendant shows that substantial prejudice has been caused

Service of summons to person who resides outside India Order 5 rule 25

Summons to a witness (S.30-32,order 16)
Object: the object of this is to notify the opposite party about the witness which the party is
going to examine so that he can know the nature of the witness and prepare accordingly.

Under section 30 court may issue summons to the person who the presence is required either
to give or produce evidence

Under section 32 of the code of civil procedure the court can enforce the presence of any
member against whom a summon has been issued.
Order 16 rule 10 talks about the consequences of nonappearance of the parties in spite of
service of the summons. It empowers to court to issue summons to a witness and also
enforces the requisition contained in the summons either to give evidence or to produce
documents. The nature of order 16 rule 10 is penal nature and must be strictly followed.

Rule 12 states that the court could impose a fine less than five hundred rupees for non-
appearance. Pertaining to which the court could also attach the property of the person in order
to recover the fine if imposed. All this consequence could be avoided if the person gives any
lawful excuse to the court for his absence.  
 CONSEQUENCES OF NON-APPEARANCE OF PARTIES (ORDER 9)

Dismissal for default

The court requires the parties against whom the summons was served to be present personally
or either by their pleader at the specified time if they fail to do so without sufficient cause
then provisions of order 9 will be invoked.

Refer to bare act for consequences of non-appearance of parties.

Ex-parte decree
it is not defined under the code. It is a decree passed under the absence of the defendant. The
court may issue a ex-parte decree while plaintiff appears but the defendant to whom
summons has been duly served is absent under (order 9 rule 6)

an ex-parte decree is valid unless it is annulled by law. Pandurang Ramachandra v.

Shantibhai Ramachandra

Setting aside exparte decree (order 9 rule 13)

A defendant can apply to set aside the ex parte decree on the grounds of:

An application of setting aside ex parte decree should be made within the 30 days of from the
date od the decree

Summons not duly served

The court will set aside the decree if the defendant is able to satisfy the court that summons
has not been served.

Clause 2 of rule 13 states that the ex parte decree will not be set aside on mere technicality if
the defendant had sufficient notice of the date of hearing and had reasonable time to answer
plaintiffs claim

Prevented by sufficient cause

The court may set aside the decree if defendant is able to satisfy the court that he’s
appearance before the court is prevented by sufficient cause.

The supreme court in the case of G.P. Srivastava v. R.K. Raizada, held that the expression
sufficient cause must be interpreted liberally to do justice to both the parties. it further held
that a party should not be deprived of hearing unless there is gross misconduct or negligence
on one of the parties’ sides.

It also held that the material in which sufficient cause is to be taken into consideration is the
date of passing of the ex parte decree not his previous conduct.

Note :- No decree to be set aside without proper notice to the opposite party

Teharoonchand v. Surajmull Nagarmull

In the above case the high court set aside the ex parte decree passed by munsif court and
resumed the suit proceedings, stating that the summons were not duly served to the defendant
as a result he was prevented by sufficient cause

Remedies against ex parte decree

1. apply to court which passed such decree under order 9 rule 13
2. prefer an appeal against such order under section 96 (2) CPC or file for revision under
section 115
3. file for review under section 114
4. file for suit on the ground of fraud (P.Kiran Kumar v. A.S. Khadar)

refer to the bare act for order 9 rule 4 and 9.

 DISCOVERY & INSPECTION, INTERROGATORIES

Order 11 of the code compels the other parties to compulsorily disclose the facts or
documents they are relying on. In order to elicit such facts and documents the party seeking
those documents can pose some questions to other side called interrogatories. If the court
finds the questions to be proper it shall compel the other side to answer them on oath before
trial. 

Interrogatories (Rule 1-11)

Object: the object of the interrogatories is to

a) Know the nature of the case

b) To support his own case either by directly obtaining admission or by destroying the
case of the opposite party.

The order of the interrogatories can be obtained by both the plaintiff and the defendant
against each other. In some cases, it can be issued against the parties who are parties to a suit
but are not added to the suit.

Rule 6 of the code states that the parties can object to the interrogatory if it is scandalous,
irrelevant, mala fide, immaterial, etc. 

Rule as to interrogatories – C.K. Takwani

Discovery of document (Rule 12 -14)

Object : the object of this is to secure all the possible material documents on oath

A party can compel its opponent to submit a list of documents under their possession. It may
even take permission to gain a copy of the same and inspect the documents of the other party.
This is known as discovery of documents

The court allows inspection of those documents which does not solely constitutes the
evidence of the other party. It may order the parties to produce an affidavit to disclose the
documents in their possession.

The court may order discovery of a document which has some bearing on the subject matter
in issue
Inspection of documents (Rule 15-19)
Documents referred to in pleadings
The party is entitled to inspect documents without order or interference of the court. the party
requiring the inspection of the documents may send the notice in the prescribed format. The
other party receiving the notice within 10 days may issue a notice notifying the time place
date of the inspection. If the later party fails to issue the notice then the court may order for
the inspection of the documents.

Other documents in the possession of the party not mentioned in the pleadings.
Parties can inspect other documents which are not mentioned in the pleading only thorough a
order of the court along with a affidavit stating that the said documents are relevant to the
case.
 MODULE6

Caveat (148-A)
Caveat definition not given under the code. S.148-A provides for lodging of caveat. Caveat
may be defined as a warning or caution given to the court not to give any relief or take any
action to the applicant without notice being given to the party who lodged the caveat.

Person filing a caveat is called ‘caveator’. Where an application is made or expected to be

made or has been made in a suit or proceeding any person claiming right to appear on the
hearing of such application may lodge a caveat

Objective of lodging a caveat

1. safeguard interest of the person against any order passed by the court on application
filed by the party. It gives the party the opportunity of being heard before an ex-parte
decrees
2. to avoid multiplicity of proceedings

Who may file a caveat (s.148-A (1))

Duties of Caveator
Rights of Caveator
1. Once caveat is lodged it is the duty of the court to issue notice of the application so
filed on the caveator (s.148(3)). This duty is cast enable the caveator to appear and
contest the applicatio4))
2. A duty is cast on the applicant to furnish at caveators expense, the copy of application
made by him along with other documents on which he relies (s.148A)

Time limit
A caveat lodged will be valid till 90 days from the date filing of caveat (s.148-A (5))

Inherent power of a court (148,149, 151)

Courts should possess all necessary powers for prevention of abuse of process and to secure
ends of justice. Inherent powers are power which may be exercised by the court to do
complete justice between the parties. They are complementary and additional powers that a
court has for circumstances which are unforeseen by the legislature.

Manohar lal chopra v. Seth Hiralal

Supreme court held that inherent power has not been conffered upon the court it is an
inherent power that a court has by virtue of being a court and its duty is to do complete
justice between parties.

Enlargement of time (148)

Allows the court to extend the time in cases where time is fixed. This section has no
application when time has not been fixed, though such extension granted by the court can not
exceed 30 days in total.

Johiri Singh v such pal singh

This section provided by the code to the court is discretionary it may or may not use it

Payment of court fees

The court can make the plaintiff pay for deficient court fee payable on plaint appeal
memorandum etc.

Preservation of the inherent powers (151)

Section 151 preserves the inherent power of a court it says the inherent powers of the
supreme court can be when it is necessary to meet the ends of justice or to prevent abuse of
process of the court. Even after the expiry of the limitation

Orders that can be passed by the court under 151

1. Order issuing temporary injunction in cases not covered order 39 (Manohar lal
chopra v. Seth Hiralal)
2. Recalling its own order and correcting mistakes (keshardeo v radha kissan)
3. Setting aside an ex-parte decree. However such order can not be passed ignoring order
9 of the code
4. Staying the suit even if people didn’t apply for the same

Limitations
1. Can’t be exercised in conflict with what has been expressly provided by the court
2. If any provision is exhaustively covering a particular issue no inherent power to be
used
3. Cannot be exercised for the benefit of the who has remedy under relevant provision
but not availed it (Arjun singh V mohindra kumar)
4. It can not assume jurisdiction which is not vested in by law by invoking inherent
powers
5. Inherent powers are restricted to procedural matters and can not be claimed as
substantial right of the parties
 MODULE 5

First Hearing (order 10)

First hearing means the day on which the court goes into the pleading presented by the parties
understand their conditions. Or it can also be said the day which issues are framed

In Siraj Ahmad v. Prem Nath Supreme court held that first hearing is the day on which the
court applies its mind to the case either for framing of issues or for taking evidence is the
first hearing of the suit.

It is the third important step after filing of a suit after presentation of plaint by the plaintiff
and filing of written statement by the defendant. The dispute between the parties become
clear and there after the court will try to frame issues.

Order 10 allows the court to allow the court to examine the parties in matters related to
controversy in the suit.

Order 10 rule (1A-1C)

The purpose of these provisions are to resolve the issues outside the court through any mode
of alternate dispute resolution before framing of issues. Rule 1A states that after recording the
statements and denial the court provides for parties to opt for settlement of dispute out of the
court under section 89.

If parties fails to reach any settlement the matter is referred back to the court (rule 1C)

Oral examination of parties

Rule 2 allows the court to orally examine the parties related to the suit or any person
appearing on his behalf or his pleader to elucidate the matter in dispute. Then the substance is
reduced in writing as apart of the record Rule 3

Framing of issues (order 14)

Primary object of primary issue in a suit to ascertain the controversy between the parties.
Each material proposition presented by the parties, in which the position of fact or law is
affirmed by one party and denied by one each of such forms a distinct issue Rule 1(3). it is
the obligation of the court to read the pleadings and determine the issues at contention
between both parties.
Object of framing of issues

In, J.K.Iron and Steel Co. Ltd v. Mazdoor Union, the court held that the primary object of
framing of issues is to ascertain the matter in controversy and narrow the area of conflict
between the parties.

Types of issues (rule 1(4))

There are two kinds of issues: -

1. Issue of fact
2. Assur of law

Supreme Court in Mathura Prasad v. Dossibai N.B. Jeejeebay, stated that sometimes there
is both issue of fact and law and where there is both issue of bot fact and law arise in the
same suit,

Preliminary issues (Rule 2(2))

An issue relating to

1. Jurisdiction of the court or

2. Bar to the suit created by law

Shall be considered as preliminary issue and issue of law is not considered as preliminary
issue as general rule under rule 2(1) if the court can dispose of a suit on the basis of
preliminary issue then also court is under the obligation to provide judgement on all issues.
This rule is relaxed under rule 2(2) if the court thinks that the suit may be disposed of on
issue of law only then it may postpone the settlement of other issues until issue of law have
been decided.

Material required For Framing of issues Rule 1(5) and 3

Following are the materials required in framing of issues

1. Plaint and written statement

2. Examination under Order 10 Rule 2
3. Answers to interrogatories
4. Allegations made on oath by the parties, or by any persons present on their behalf, or
made by the pleaders of such parties
5. Contents of the documents produced by either party.

Rule 5 provides for amendment of issues

Admissions order 12
Object
The object of admissions is to do away with necessity of proving the facts that are admitted.
It is based on the principle that “what a party himself admits to be true may be reasonably be
presumed to be so”

Its object is also to save costs of such proof cheapen litigation.

Meaning
Admission of a document means admitting the facts contained in the document it is not a
conclusive as to truth of matter stated therein. It is only a piece of evidence .

Admission to be taken as a whole

In Motabhoy Mulla Essabhoy v. Mulji Haridas the court has held that admission should be
taken as a whole or not all it cant be taken by the court in parts
Frame of Suit (order 2)
Rule and 2 of order 2 states that every suit must include the whole claim of plaintiffs in
respect of same cause of action. to dispose of all disputes which arise from the same cause of
action.

Intention of the legislature is to dispose of all disputes between the parties relating to same
cause of action should be disposed of in the same suit to prevent further litigation

Order 2 rule 2
Every suit must include whole claim which the plaintiff is entitled in respect of same cause of
action and where the plaintiff is entitled in respect of the cause of action and where the
plaintiff omits to sue for intentionally relinquishes any portion of his claim, he shall not be
allowed to sue in respect of the portion so omitted or relinquished.

Object

The object of this provision is based on the cardinal principle that no defendant should be
vexed twice for the same cause the main intention of this provision is to prevent two things .

1. Splitting up of claims
2. Splitting up of remedies

In Naba kumar v radhashyam the privy council held that if a plaintiff intentionally omits a
claim to sue which he is entitled under the same cause of action then he can not claim it in a
subsequent suit. The court further stated that the object of this suit is to prevent multiplicity
of suit.

Application of order 2 rule 2

the said provision will apply in all cases where a subsequent suit has been filed irrespective of
the fact whether the first suit has been disposed or not (Virgo industries (Eng.) (P) Ltd. v.
Venturetech Solutions (P) Ltd.)

the said provision is not applicable on appeals execution proceedings arbitration proceedings
or a petition under article 226 of Constitution of India.

illustration :-A sues B for Rs 200. Against this claim B claims set-off for Rs 200 being part
of Rs 1200 due to B by A but omits to counterclaim the balance of Rs 1000. B cannot
afterwards sue A for Rs 1000.
A sues B for rent. The suit is dismissed on finding that A was not the landlord but A and B
were tenants-in-common. A subsequent suit by A against B for partition of property is not
barred.

Difference between order 2 rule 2 and res-judicata

Res judicata requires the plaintiff bring forward all the grounds to supports his claim while
order 2 rule 2 of the code only requires the plaintiff to claim all the relief he is seeking from a
cause of action.

Secondly res-judicata applies on both the parties which is the plaintiff and the defendant and
excludes a suit as well as a defence whereas order 2 rule 2 applies only to plaintiff and bars
the suit.

Conditions for order 2 rule 2

Gurbux Singh v. Bhooralal discussed about the condition required for application of order 2
rule 2 they are as follows:

1. The second suit must be instituted on the same cause of action as the which the former
suit was instituted
2. In respect to same cause of action the plaintiff was entitled to more than one relief.
A right which the litigant did not know or a right which did not existed at the time of
first suit could not be covered under this provision (Amanat Bibi v Imdad Husain)
3. And being entitled to more than one relief the plaintiff without the leave of the court
omitted to sue for such reliefs , due to which the second suit has been filed

Like resjudicata a plea of bar of order 2 rule 2 should be claimed by the defendant by placing
before the court the plaint of previous proceedings, the court can take suo moto cognizance
also.

In Mohd. Khalil v. Mahbub Ali, after considering several cases on the point, the Privy
Council laid down the following principles governing bar to a subsequent suit under this rule:

1. The correct test in cases falling under Order 2 Rule 2, is "whether the claim in the
new suit is in fact founded upon a cause of action distinct from that which was the
foundation of the former suit".
2. The cause of action means every fact which will be necessary for the plaintiff to
prove if traversed in order to support his right to the judgment.
3. If the evidence to support the two claims is different, then the causes of action are
also different.
4. The causes of action in the two suits may be the same if in substance they are
identical.
5. The cause of action has no relation whatever to the defence that may be set up by the
defendant nor does it depend upon the character of the relief prayed for by the
plaintiff.
 MODULE 7

Term injunction not defined under the code. It is a remedy in the form of an order restricting
him from doing something or restricting him from continuing to do something (prohibitory
injunction) or orders him to carry out certain act (mandatory injunction)

Grant of injunction is a discretionary remedy and also an equitable remedy

Temporary Injunction (order 39 rule 1to 5)

Temporary injunction is given to restrain a party from doing certain acts and can be granted
only toll the disposal of the suit or till further order given by the court

Grounds for temporary injunction (rule 1and 2)

The plaintiff or defendant can apply for temporary injunction ion the grounds mentioned in
rule 1 and rule 2 of order 39.

Note:- Injunction can also be granted under section 151 of CPC as discussed earlier (Manohar
Lal Chopra V Seth Hiralal)

Irreparable injury
Applicant must further satisfy the court that he will suffer irreparable injury if the injunction
is not granted. If there are no specific pecuniary standards for measuring the damage and it
cannot be adequately compensated by costs then it is said to be irreparable injury. (Manohar
Lal Chopra V Seth Hiralal)

the court should see through that if the applicant is adequately compensated because of the
injury caused, if damages are recoverable then no temporary injunction should be granted
 MESNE PROFIT (S.2 (12) & O.20 RULE 12)

Mesne profit is the profit which the person in wrongful possession of such property receives
together with the interest on such profits.

Union of India (UOI) and Ors v. Banwari Lal and Sons the court stated that if a person
posses a property that was wrongful initially but assumed wrongful character afterwards then
such property will not be liable to Mesne profit

Decree of possession in no way follow a decree of declaration of ownership the burden of

proof is on the plaintiff to prove the allegation of wrongful possession Nazir Mohamed vs.
J.Kamala and Ors (2020)

LIMITATION ACT (MODULE 9)

Law of limitation is a procedural law. It is founded on public policy which is based on the
principle that legal status or legal relationship cannot be left to be uncertain for an unlimited
period of time.

Object of the act is to simply prescribe time within which existing rights can be enforced in
Courts of law. Its main objective is not to enable suits to be bought in certain specified time
period but to bar an institution of suit after a certain time period.

It is based on two principles:

1. State requires that there should be an end to a litigation

2. Law comes to assistance of the vigilant not the slumber

In Charanjit Lal v. Hari Das has held that law of limitation are meant to see that parties do
not resort to any dilatory tactics but seek there remedy in promptly because every legal
remedy must be alive till a certain legislatively fixed time period.

Scope
The act applies to all suits and appeals. It does not apply on writs , criminal proceedings
(unless it is made applicable by express provisions).
It applies to only to proceedings in court and not before quasi-judicial bodies or executive
authorities. By section 37 of arbitration act it has been made applicable to arbitration.

It applies to institution of proceedings not on continues of pending proceedings. It also does

not bar defense it only bars an action.

Interpretation By court
The interpretation of the Statute must be done strictly, the court can on equitable grounds
extend the time allowed by law. However, in case of any doubt or ambiguity the provision
must be construed in favor of right to sue rather than suing barring the suit. Where two
provisions of schedule or an article are found applicable on the same cause of action then the

Law bars the remedy not the right

The act comes into play only on the expiration of the period of limitation and bars the remedy
after such expiration, but it does not extinguish the right that cannot be enforced by judicial
process.

It will not be illegal for the parties to settle outside the court of law and if there is any other
legal way to claim their remedy the act can not come in the way.

In the case of Bombay Dyeing and Manufacturing Co. V. State Of Bombay, held that the
limitation act bars the remedy and does not extinguish the right. Lapse of time does not
extinguish the right of the person.

In PNB v Surendra Prasad Sinha Sc held that right to enforce the debt by judicial process is
barred the right to debt remains the time barred debt does not cease to exist by virtue of
dection 3. The debt is not extinguished but the remedy to enforce the debt is destroyed.

In Babua ram v. Satate Of Up the supreme court held that rules of limitation are not meant
to destroy the rights of a person they are meant to see plaintiff do not resort to any dilatory
tactics. However Section 27 of act is an exception as it extinguishes both the right and
remedy of the person (suit for possession of any property)

Extension Curtailment and waiver of limitation

In Gobardhan V. Din Dayal the supreme court held that the parties on mutual consent
cannot extend or reduce the limitation period, nor can he waive his right to limitation as the
act is based on the principle of public policy.
 Period of limitation and prescribed period
Period of limitation is period of limitation prescribed for any suit, appeal or application,
whereas prescribed period as the period of limitation computed in accordance with the
provisions of this act.

for example, C gives loan of Rs. 1,00,000/- to D over on 01/01/2017. Now as per the Act, the
limitation period for recovering the loan is three years from the date of loan i.e. 31/12/2019
but due to application of Section 12(1) of the Act, the day from which the period of limitation
is to be reckoned, shall be excluded. Hence prescribed period in above case will be till
01/01/2020.

In Assam Urban Water Supply & Sewerage Bond v Subash projects Mfg ltd Supreme
court held that prescribed period does not include period extendible by court in exercise of its
discretion.

Extension of prescribed period in certain cases

Section 5 provides that any appeal or any application other than application made under order
21 of the code may be admitted after the prescribed period if the appellant or the applicant
satisfies the court that he had sufficient cause for not preferring the appeal or making the
application within such period.

Section 5 is an exception to section 3 and it applies to only appeals and applications dos not
apply to suits this because the prescribed period of suits is quite large which is 3 to 12 years
but appeals limitation period is only for few months. and it does not apply to quai judicial and
executive bodies

Section 5 talks about condoning the delay if the applicant can satisfy the court that he had
sufficient cause for such delay. Prescribed period also includes the last day of the limitation
period.

In Manohar Joshi V. Nitin Bhaurao Patil the court said that the applicant must prove
sufficiency of the cause of delay on such last day and there after and not during the entire
prescribed time.

In Ramlal V. Reva Cola fields the court held that the event or circumstances amounting for
delay must arise before the expiry of the limitation period. Extension is matter of concession
and can not be claimed as a matter of right.
Sufficient cause

The expression “sufficient cause” has not been defined in the act but it signifies the cause
which is beyond the control of the party. Therefore, if a party could avoid a cause of delay
with due care it can not be considered as sufficient cause

In G. Ramegowda V. Land Acquisition Officer the court held that the expression sufficient
cause should be interpreted liberally so as to advance the cause of justice and not cause of
technicalities

Whether rejection of appeal filed under section 5 is considered decree

Yes Fakira Mishra v. Biswanath Mishra, it is considered decree.

 JUDGEMENT AND DECREE (MODULE 7)

Decree
Decree is a formal expression of an adjudication.

Essential of a decree
1. There must be an adjudication
2. Adjudication must be done in a suit
3. It must have decided the rights of the party with respective to all or any matter in
controversy and such determination should be conclusive in other words
determination should be final
4. There must be a formal expression of adjudication, a decree must be separately drawn
up if it is not done non appeal lies against the judgemetn

Note:- under point 3 an order may conclusively determine the rights of the party but may not
dispose of the suit. If the decision is final and conclusive in essence and substance it is a
decree.

Types of decree
Preliminary decree

A preliminary decree is a decree which does not dispose of the suit completely and further
proceedings are still required in the parties. An andjudication which finally decides the rights
of the parties but does not dispose of the suits of the parties is preliminary decree. (Venkat
Reddy v. Pethi Reddy)

Final decree

A decree which completely disposes of a suit and finally settles all questions in controversy
between parties and nothing further remains to be decided thereafter.

A decree may be final in following two ways

1. When within the prescribe period no appeal is filed against the decree or the matter
has been decided by the decree of the highest court
2. When the decree so far as regards the court passing it completely disposes of the suit

Distinction between preliminary decree and final decree

A preliminary decree merely declares the rights of the parties to the suit and leaves room for
further inquiry to be conducted pursuant to directions issued in the preliminary decree such
enquiry after being conducted will be determined by final decree.

Note: the term decree expressly excludes an adjudication from which an appeal lies as an
appeal from an order. For example, an order of returning of plain to proper court or rejecting
an application to set aside ex parte decree are appealable orders not decree.

Order
Means the formal expression if any decision of a court which is not a decree. Thus
adjudication of a court which is not a decree is order

Distinction between order and decree

1. A decree can only be passed in a suit which commenced by presentation of a
plaint.An order may originate from a suit by presentation or may arise from a
proceeding commenced by a petition or an application
2. A decree is an adjudication which conclusively determines the rights of the parties
with regards to all the matters in the controversy an order may or may not finally
determine such rights
3. A decree may be preliminary or final or partly preliminary partly final but an order
can not be preliminary
4. Except in certain suits where two decrees are passed on epreliminary and one final but
there can be passed many orders in a single suit
5. Every order is not appealable but every decree is appealable

Judgement
Judgement is a statement given by a judge of the grounds of a decree or order.

Judgement and decree: Distinction

It is not necessary for a judge to give a statement in decree whereas it is necessary in
judgment

It is not necessary there should be a formal expression of the order in the judgement

A decree shall be passed only after a judgement has been passed.