CIVIL PROCEDURE CODE - END SEMESTER NOTES

UNIT 1: ................................................................................................................................................................. 7
SUBSTANTIVE AND PROCEDURAL LAW-DIFFERENCES: ...................................................................................................... 7
HISTORY OF CODE OF CIVIL PROCEDURE, 1908: ................................................................................................................ 7
OBJECT OF CODE OF CIVIL PROCEDURE, 1908: .................................................................................................................. 8
DIVISION OF THE CPC: ....................................................................................................................................................... 8
SECTION 3 - SUBORDINATION OF COURTS (HIERARCHY OF COURTS) ................................................................................ 8
ADR FOR DISPUTE SETTLEMENT:.................................................................................................................. 8
ORDER X – FIRST HEARING AND EXAMINATION OF PARTIES ........................................................................... 9
SECTION 89 – SETTLEMENT OF DISPUTES OUTSIDE THE COURT ......................................................................................... 9
STAGES OF A CIVIL SUIT: ................................................................................................................................................. 10
ORDER XXI EXECUTION OF DECREE .............................................................................................................................. 12
LEGAL REPRESENTATIVES: (S 2(11))............................................................................................................ 15
MESNE PROFIT: (S. 2(12)) ................................................................................................................................ 15
UNIT- 2................................................................................................................................................................. 17
MEANING OF JURISDICTION .................................................................................................................................. 17
Types of Jurisdiction .................................................................................................................................................... 17
PECUNIARY JURISDICTION (S.6 AND S.15) .............................................................................................................. 17
SUBJECT MATTER JURISDICTION (S.9) ............................................................................................................................ 18
TERRITORIAL JURISDICTION (S.16-20) ............................................................................................................................ 19
Suits relating to immovable property: Sections 16 to 18............................................................................................ 19
Suits relating to movable property: Section 16(f) and 19.- within the local limits of whose jurisdiction the property
is situate. ..................................................................................................................................................................... 20
OUSTING OF JURISDICTION BASED ON CONTRACTUAL CLAUSES..................................................................................................... 22
Sec19 r/w Explanation of s.20 .................................................................................................................................... 22
TRANSFER OF SUITS (S.22-S.25) ...................................................................................................................................... 23
RES SUB JUDICE (S.10) ..................................................................................................................................................... 25
RES JUDICATA - SECTION 11 ............................................................................................................................................ 26
MATTER DIRECTLY AND SUBSTANTIALLY IN ISSUE IN SUBSEQUENT SAME AS IN FORMER SUIT ACTUALLY (EXPL. III - ACTUAL RES JUDICATA)
OR CONSTRUCTIVELY (EXPL. IV - CONSTRUCTIVE RES JUDICATA). .................................................................................................. 26
FORMER SUIT OR ISSUE (EXPL. I)............................................................................................................................................. 26
COURT THAT DECIDED FORMER SUIT COMPETENT TO TRY SUBSEQUENT SUIT ALSO (EXPL II AND VIII).................................................. 27
MATTER SUBSTANTIALLY AND DIRECTLY IN ISSUE HEARD AND FINALLY DECIDED BY THE COURT ON MERITS (EXPL. V) ............................ 27
DIFFERENCE BETWEEN RES JUDICATA AND RES SUBJUDICE .......................................................................................................... 28
RES JUDICATA AND WRITS .................................................................................................................................... 28
FOREIGN JUDGEMENT .................................................................................................................................................... 29
EXCEPTIONS WHEN FOREIGN JUDGMENT NOT ENFORCEABLE BETWEEN THE PARTIES IN INDIA: ........................................................... 29
OBJECTION TO JURISDICTION - SECTION 21, 21A .................................................................................................... 30
REPRESENTATIVE SUIT .................................................................................................................................................... 31
ORDER 1 Rule 8: ONE PERSON MAY SUE OR DEFEND ON BEHALF OF ALL IN SAME INTEREST. ................................. 31
Order 23 Rule 3B Compromise .................................................................................................................................... 32
JOINDER OF PARTIES : ..................................................................................................................................................... 34
Rule 1 Order I of Code of Civil Procedure 1908 "Who may be joined as plaintiffs" .................................................... 34
Rule 3 Order I of Code of Civil Procedure 1908 "Who may be joined as defendants" ................................................ 34
 Necessary and Proper Parties: .................................................................................................................................... 34
Rule 9 Order I of Code of Civil Procedure 1908 "Misjoinder and nonjoinder" ............................................................ 35
Rule 10 Order I of Code of Civil Procedure 1908 "Suit in name of wrong plaintiff" .................................................... 35
Rule 13 -- objections to misjoinder or nonjoinder....................................................................................................... 35
Section 99- No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction.— ... 37
UNIT-3 ................................................................................................................................................................ 38
ORDER VI - PLEADINGS.................................................................................................................................. 38
• RULE 17 - AMENDMENT OF PLEADINGS .................................................................................................................. 41
When Amendment not allowed: .................................................................................................................................. 42
ORDER VII PLAINT ......................................................................................................................................... 45
ESSENTIAL ELEMENTS OF PLAINT – RULES 1-8................................................................................................................ 45
ADMISSION OF PLAINT ..................................................................................................................................................... 45
RETURN OF PLAINT [O. VII R. 10, 10-A, 10-B]................................................................................................................ 46
REJECTION OF PLAINT [O. VII R 11] ................................................................................................................................ 47
Section 96.................................................................................................................................................................... 48
ORDER V – SUMMONS..................................................................................................................................... 49
ESSENTIALS OF SUMMONS: .............................................................................................................................................. 49
CONTENTS OF SUMMONS: ................................................................................................................................................ 49
SERVING OF SUMMONS ..................................................................................................................................................... 50
ORDER VIII – WRITTEN STATEMENT .......................................................................................................... 52
PRODUCTION, IMPOUNDING & RETURN OF DOCUMENTS - ORDER XIII .............................................. 55
AFFIDAVIT – ORDER XIX ............................................................................................................................... 57
ADMISSIONS – ORDER XII .............................................................................................................................. 58
DISCOVERY OF FACTS & DOCUMENTS – ORDER XI ................................................................................. 59
UNIT 4- APPEARANCE, EXAMINATION AND TRIAL ................................................................................... 62
ORDER IX (O. 9) - APPEARANCE OF PARTIES AND CONSEQUENCES OF NON APPEARANCE .................... 62
ONLY PLAINTIFF APPEARS................................................................................................................................................ 62
BOTH PARTIES DO NOT APPEAR ........................................................................................................................................ 62
ONLY DEFENDANT APPEARS ............................................................................................................................................ 63
Remedies available to plaintiff against decree dismissing suit for non-appearance: ................................................ 63
• RULE 13 – SETTING ASIDE EX-PARTE DECREE: ....................................................................................................... 64
ORDER XIV (O. 14) – SETTLEMENT OF ISSUES ........................................................................................... 65
ORDER XVII (O.17) – ADJOURNMENT ........................................................................................................... 67
FACTORS CONSIDERED FOR GRANTING ADJOURNMENT: ............................................................................... 67
ORDER XIX (O. 19) - AFFIDAVITS .................................................................................................................. 68
ATTRIBUTES OF AN AFFIDAVIT .............................................................................................................................. 68
INTERESTS AND COSTS .................................................................................................................................. 69
SECTION 34 – INTEREST ............................................................................................................................................. 69
SECTION 35 – COSTS ................................................................................................................................................... 69
SECTION 35 A - COMPENSATORY COSTS IN RESPECT OF FALSE OR VEXATIOUS CLAIMS OR DEFENCES
......................................................................................................................................................................................... 69
SECTION 35 B - COSTS FOR CAUSING DELAY .................................................................................................................... 70
ORDER XX A – MISCELLANEOUS COSTS ................................................................................................................. 70
ORDER XXV – SECURITY FOR COSTS .............................................................................................................................. 70
ORDER XXVI (O. 26) – ISSUE OF COMMISSIONS ................................................................................................... 72
SECTION 75- POWER OF COURT TO ISSUE COMMISSIONS.................................................................................................. 72
 ORDER 26 STATES THE PROVISIONS FOR COMMISSIONS TO EXAMINE WITNESSES............................................................. 72
ORDER 18 RULE 4(2) .................................................................................................................................................... 73
ORDER XXXVIII (O. 38)- ARREST BEFORE JUDGEMENT........................................................................... 75
RULE 1 OF ORDER 38........................................................................................................................................................ 75
SECTION 57: SUBSISTENCE-ALLOWANCE. ..................................................................................................................... 75
DEFENDANT MAY BE RELEASED IN THE FOLLOWING CASES: ....................................................................... 75
NO ARREST IN THE FOLLOWING CASES: ............................................................................................................... 76
SECTION 56: Prohibition of arrest or detention of women in execution of decree for money. ................................ 76
SECTION 95: COMPENSATION FOR OBTAINING ARREST, ATTACHMENT OR INJUNCTION ON INSUFFICIENT GROUND. ..... 76
ORDER XXXVIII (O. 38) - ATTACHMENT BEFORE JUDGEMENT .............................................................. 77
ORDER 38: ........................................................................................................................................................................ 77
SECTION 95: COMPENSATION FOR OBTAINING ARREST, ATTACHMENT OR INJUNCTION ON INSUFFICIENT GROUND. ..... 78
ORDER XXXIX (O.39) – TEMPORARY INJUNCTIONS ................................................................................. 79
TRIPLE TEST ..................................................................................................................................................................... 79
ORDER XL (O.40) - APPOINTMENT OF RECEIVER ...................................................................................... 82
PRINCIPLES TO BE FOLLOWED WHILE APPOINTMENT OF A RECEIVER: .............................................................................. 82
UNIT – 5 ............................................................................................................................................................... 84
EXECUTION.......................................................................................................................................................................... 84
R.10 – APPLICATION FOR EXECUTION...................................................................................................................................... 87
Contents of application: [R.11] ................................................................................................................................... 87
Procedure to be followed on receiving application .................................................................................................. 87
Stay of Execution ........................................................................................................................................................ 88
Modes of Execution .................................................................................................................................................... 89
- THE PROVISO ............................................................................................................................................... 90
ARREST & DETENTION [R. 30] ................................................................................................................................................ 95
ATTACHMENT ...................................................................................................................................................................... 97
Property Exempted from attachment [Proviso to S. 60(1)] ........................................................................................ 97
Modes of Attachment ................................................................................................................................................. 97
DETERMINATION OF ATTACHMENT: RULES 55-58 ................................................................................................... 100
DECREE OF MAINTENANCE ................................................................................................................................................... 101
UNIT 6- SPECIAL SUITS .................................................................................................................................. 102
I. SUITS BY OR AGAINST GOVERNMENT OR PUBLIC OFFICERS (S.79-82)............................................. 102
S.79- SUITS BY OR AGAINST GOVERNMENT ................................................................................................................... 102
S.80- NOTICE ................................................................................................................................................................. 102
S.81- EXEMPTION FROM ARREST AND PERSONAL APPEARANCE ..................................................................................... 103
S.82- EXECUTION OF DECREE ........................................................................................................................................ 103
II. SUITS BY/AGAINST FOREIGN STATE/RULERS/AMBASSADORS SECTIONS 84 – 87A ....................... 104
SUIT BY FOREIGNER: ...................................................................................................................................................... 104
SUIT AGAINST FOREIGNER: ............................................................................................................................................. 104
NO ARREST IN EXECUTION OF DECREE AGAINST FOREIGN STATE RULER/AMBASSADOR................................................. 105
S. 87- STYLE OF FOREIGN RULERS AS PARTIES TO SUITS ................................................................................................ 105
III. INTERPLEADER SUIT – SECTION 88 ORDER 35 ................................................................................... 105
WHO CAN FILE INTERPLEADER SUITS?............................................................................................................................ 105
S.88- WHERE INTERPLEADER SUIT MAY BE INSTITUTED................................................................................................. 105
PROCEDURE: (ORDER 35) ............................................................................................................................................... 106
IV.SUIT BY / AGAINST MINOR/LUNATICS – ORDER 32 ............................................................................. 106
 SUIT BY MINOR/PERSON OF UNSOUND MIND: .................................................................................................................. 106
SUIT AGAINST MINOR/PERSON OF UNSOUND MIND: ........................................................................................................ 106
POWERS AND DUTIES OF GUARDIAN (RULE 5,6,7) .......................................................................................................... 107
TERMINATION OF GUARDIANSHIP (RULES 8-11) ............................................................................................................ 107
DECREE AGAINST MINOR/ UNSOUND MIND .................................................................................................................. 107
ATTAINMENT OF MAJORITY/LUNATIC ATTAINING SANITY (RULE 12-14):...................................................................... 107
V. SUIT BY/AGAINST PARTNERSHIP FIRM – ORDER 30............................................................................ 108
• GENERAL RULE ..................................................................................................................................................... 108
• EXCEPTION ........................................................................................................................................................... 108
SERVICE OF SUMMONS AND NOTICE (RULE 3, 5) ........................................................................................................... 108
APPEARANCE BEFORE THE COURT ................................................................................................................................. 109
DEATH OF PARTNER PENDENT LITE: (RULE 4) ................................................................................................................ 109
EXECUTION OF DECREE AGAINST PARTNERSHIP FIRM: ................................................................................................... 110
VI. SUITS & APPEALS BY INDIGENT PERSONS – ORDER 33, 44 ............................................................... 110
INDIGENT PERSON: (RULE 1) .......................................................................................................................................... 110
PROCEDURE TO SUE IN FORMA PAUPERIS: ..................................................................................................................... 110
RULE 5: REJECTION OF APPLICATION:............................................................................................................................ 110
RULE 9: REVOCATION OF PERMISSION: .......................................................................................................................... 111
RECOVERY OF COURT FEES AND COSTS: RULE 10 AND 11 ............................................................................................ 111
APPEAL: ORDER 44 ........................................................................................................................................................ 111
VII. SUMMARY PROCEDURE – ORDER 37 ................................................................................................... 112
NATURE: ........................................................................................................................................................................ 112
OBJECT:.......................................................................................................................................................................... 112
CONDITIONS: .................................................................................................................................................................. 112
PROCEDURE: RULE 2, 3 ................................................................................................................................................... 112
DECREE IN SUMMARY SUIT – APPEALABLE ..................................................................................................................... 112
DIFFERENCE BETWEEN SUMMARY SUITS AND REGULAR SUITS ..................................................................................... 113
VIII. SUITS RELATING TO PUBLIC NUISANCE – SECTION 91 .................................................................. 113
• PUBLIC NUISANCE – .............................................................................................................................................. 113
REMEDIES:...................................................................................................................................................................... 113
WHO CAN FILE SUIT: (SECTION 91) ................................................................................................................................ 114
• ORDER REFUSING LEAVE TO FILE SUIT FOR PUBLIC NUISANCE .............................................................................. 114
IX. SUITS RELATING TO PUBLIC TRUSTS – SECTION 92 .......................................................................... 114
CONDITIONS: .................................................................................................................................................................. 114
WHO CAN SUE: SECTION 93............................................................................................................................................ 115
RELIEF ALLOWED: .......................................................................................................................................................... 115
DOCTRINE OF CY-PRES: .................................................................................................................................................. 115
UNIT- 7 .............................................................................................................................................................. 116
APPEAL ............................................................................................................................................................ 116
FIRST APPEAL (SECTION 96 - 99, ORDER 41) .............................................................................................. 116
WHO CAN FILE APPEAL? ................................................................................................................................................ 116
WHEN CAN THE 1ST APPEAL BE FILED?.......................................................................................................................... 116
WHO MAY NOT APPEAL? ................................................................................................................................................ 116
APPEAL NOT ALLOWED AGAINST .................................................................................................................................. 116
PROCEDURE OF FIRST APPEAL (ORDER 41) .................................................................................................................... 117
POWERS OF APPELLATE COURT: (SECTION 107, ORDER 41 RULES 23-33) .................................................................... 117
1. Power to decide case finally on different grounds: Sec 107(1)(a), R24 ............................................................ 117
2. Power to remand case: S 107(1)(b), R 23, 23A, 26A .......................................................................................... 117
3. Power to frame issues and refer them for trial: Sec 107(1)(c), R 25, 26 ........................................................... 117
4. Power to take additional evidence or require such evidence to be taken: S 107(1)(d), R 27-29....................... 117
 5. Power to Modify Decree: R33 ............................................................................................................................. 118
6. Power of summary dismissal of appeal: R 11, 11A ............................................................................................ 118
7. Power to stay proceedings of lower court: R 5,6 ................................................................................................ 118
8. Other powers of court of original jurisdiction .................................................................................................... 118
SECOND APPEAL ............................................................................................................................................ 118
ESSENTIALS .................................................................................................................................................................... 118
WHEN SECOND APPEAL NOT ALLOWED: SEC 101, 102 .................................................................................................. 118
When substantial question of law not involved ...................................................................................................... 118
Where original suit for recovery is less than Rs 25,000 ......................................................................................... 118
Letters Patent Appeal ............................................................................................................................................... 118
PROCEDURE (SEC 100, O41, 42) ..................................................................................................................................... 119
POWER OF SECOND APPELLATE COURT (SEC 107, 108) ................................................................................................. 119
DIFFERENCE BETWEEN FIRST AND SECOND APPEAL ............................................................................ 119
APPEAL FROM ORDERS (SEC 104-108, O 43) ................................................................................................ 119
APPEAL TO SUPREME COURT (SEC 109, O 45 - ART 133, 134A, CONSTITUTION) .................................. 119
PROCEDURE: ORDER 45 RULES 2-12 .............................................................................................................................. 119
REVISION (SECTION 115) ............................................................................................................................... 120
OBJECT ........................................................................................................................................................................... 120
CONDITIONS ................................................................................................................................................................... 120
REVIEW (SECTION 114, ORDER 47) .............................................................................................................. 120
ORDER 47 - CONDITIONS ................................................................................................................................................ 120
GROUNDS FOR REVISION ................................................................................................................................................ 121
PROCEDURE .................................................................................................................................................................... 121
REFERENCE (SECTION 113, ORDER 46) ....................................................................................................... 121
CONDITIONS ................................................................................................................................................................... 121
PROCEDURE .................................................................................................................................................................... 121
DIFFERENCES ................................................................................................................................................. 122
UNIT 8 - RESTITUTION, CAVEAT, INHERENT POWERS OF COURT RESTITUTION: ............................ 123
● SECTION 144: ............................................................................................................................................................. 123
CAVEAT: ..................................................................................................................................................................... 124
● SECTION 148-A .......................................................................................................................................................... 124
INHERENT POWERS OF THE CIVIL COURT .................................................................................................... 125
Provisions of Section 148 to 153B of CPC ............................................................................................................... 126
LIMITATION .................................................................................................................................................................... 128
SUMMARY OF PROVISIONS OF INHERENT POWERS OF COURTS....................................................................................... 129
SUGGESTIONS ................................................................................................................................................. 129
CONCLUSION .................................................................................................................................................. 129
UNIT 9- LIMITATION ACT ............................................................................................................................. 130
IT ONLY BARS THE REMEDY AND NOT THE INHERENT RIGHT ITSELF: .............................................................................. 130
Section 25- Acquisition of easement by prescription ................................................................................................ 130
Section 26- Exclusion in favour of reversioner of servient tenement ....................................................................... 131
Section 27- Extinguishment of right to property....................................................................................................... 131
SECTION 3 ...................................................................................................................................................................... 132
SECTION 4- EXPIRY OF PRESCRIBED PERIOD WHEN COURT IS CLOSED. ........................................................................... 132
SECTION 5- EXTENSION OF PRESCRIBED PERIOD. ........................................................................................................... 132
DISABILITY..................................................................................................................................................................... 132
Section 6 – Legal Disability ...................................................................................................................................... 133
 Section 7 – Disability of one of several persons ....................................................................................................... 133
Section 8 – Special exceptions .................................................................................................................................. 133
Section 9 – continuous running of time .................................................................................................................... 134
SECTION 18. LIMITATION ACT - EFFECT OF ACKNOWLEDGMENT IN WRITING ................................................................ 135
EXCLUSION OF TIME IN LIMITATION PERIOD (SECTIONS 12-15)..................................................................................... 136
POSTPONEMENT OF DATE WHEN LIMITATION PERIOD STARTS (SECTIONS 16-23) .......................................................... 137
UNIT 1:

Substantive and Procedural Law-Differences:

Substantive Law:
• Establish the rights and obligation of the individuals,
• Fixation of rights and duties of the citizens.
• Related to matters outside the court
• Indian Contract Law,1872, Transfer of Property Act,1882, The specific Relief Act, 1963,
Indian succession Act, 1925

Procedural Law:
• Lays down the ways by which substantive law can be enforced
• procedural laws only tell us how the legal process is to be executed
• Ways and means for imposing substantive law.
• Related to matters inside the court
• Indian Evidence Act,1872, The Civil Procedure Code,1908 The Criminal Procedure Code,1973

History of Code of Civil Procedure, 1908:

• Prior to 1859, different procedure followed by different civil courts.

- First Code of Civil Procedure enacted in 1859.
- The bulk of Code of Civil Procedure as in force today was enacted in 1908. S
- ubsequently the Code of Civil Procedure has been amended in 1976, 1999 and 2002 which
made significant changes to the Code of Civil Procedure, 1908.

• The 1976 Amendment’s major considerations were:

- fair trial
- in accordance with the principles of natural justice,
- disposal of civil suits without delay,
- the procedure should not be complicated.

The major changes reflected were:

- Doctrine of Res judicata made more effective,
- Freedom from attachment of a portion of salary to employees were granted,
- Sec.80 notice to government, Written statements & documents were filed without delay
- O.32-A procedure for litigation concerning family affairs, Scope of summary trials
widened.

• The 1999 Amendment provided for

1. Time-limit is prescribed for summons, W/S, amendment, examination, pronouncement
of judgement, decree
2. Provision for settlement of dispute outside the court[ADR]
 3. Adjournment restriction.
4. Recording of evidence by Advocate Commissions. [sec.27 ]
5. Fix time for oral arguments
6. O.23,r.3 [compromise]
7. Scope of Appeal has been curtailed in compromise decree[r.3A]

Object of Code of Civil Procedure, 1908:

Preamble: to consolidate and amend laws relating to procedure of courts of civil judicature.
Consolidation Acts presumed to not intend change in the previous laws

Division of the CPC:

The Code of Civil Procedure, 1908 is a procedural law related to the administration of civil proceedings
in India.
The Code is divided into two parts:
i. the first part contains 158 sections (Substantive Part) and
ii. the second part contains the First Schedule, which has 51 Orders and Rules. (Procedural Part)

- Sections are substantive in nature and lay down the general principles of Jurisdiction.
- Orders relates to the Procedure in which the jurisdiction may be exercised

Salient Features of the CPC:

• The Pecuniary limits of courts vary from State to State.
• The procedural law has retrospective application but on vested rights.
• The provisions of Code of Civil Procedure are subject to The Limitation Act.
• The body of code (sections) is fundamental and cannot be amended except by the legislature.
• The (first) schedule of the code (orders and rules) can be amended by High courts.[ss.122]

Section 3 - Subordination of courts (Hierarchy of Courts)

- In Moffusil:
Supreme Court- High Court- District Court- Sub-ordinate Judge’s Court- Moffusil’s Court

- In Metropolitan City:
Supreme Court- High Court- Senior Division City Civil Court- Junior Division City Civil Court- Small
Causes Court

ADR for Dispute Settlement:

Advantages:
• Suitability for multi-party disputes settlement.
• Quicker result
• Parties can choose the mediator/ arbitrator.
 • Parties can control or determine the process by interacting with the other.
• Gives parties satisfaction of getting an acceptable result.
• Less complex
• Confidentiality

Disadvantages:
• Inadequate planning and preparation
• Failure to communicate and listen
• Insufficient focus on underlying interest
• Misunderstanding the loss/ risk analysis.
• Failure to give respect and dignity to the opponents.

ORDER X – FIRST HEARING AND EXAMINATION OF PARTIES

- At first hearing, court ascertains from the parties to the suit, their admissions or denials of
allegations made by the opposite party (Rule 1)
- Oral examination of parties to ascertain elucidate matters in controversy in suit by court, recorded
in writing (Rule 3)
- Mandatory provision to direct parties for alternate dispute resolution as per Section 89 of CPC.
- If no settlement is reached, parties referred back to court (Rules 1-A, 1-B, 1-C)

• Rule 1 A -Direction of the Court to opt for any one mode of alternative dispute
resolution.—After recording the admissions and denials, the court shall direct the parties
to suit to opt either mode of the settlement outside the court as specified in sub-section (1)
of section 89.

• Rule 1 B - Appearance before the conciliatory forum or authority.

• Rule 1 C - Appearance before the Court consequent to the failure of efforts of

conciliation.

Section 89 – Settlement of disputes outside the Court

Where it appears to the court that there exist elements of a settlement which may be acceptable to the
parties, the court shall refer them to:
a) arbitration
b) conciliation
c) judicial settlement including settlement through Lok Adalat
d) mediation

The objective of Section 89 is to ensure that the court makes an endeavour to facilitate out-of-court
settlements through one of the ADR processes before the trial commences [
Stages of a Civil Suit:

I. Legal Notice:

1. When it is required by Law

2. When it is stipulated in the contract
3. As a matter of precaution

II. Submission of Plaint: (S. 26, O.4, R.1)

S.26: Plaint to be presented for the institution of every suit with facts proved by affidavit.

O.4, R.1:
• plaint to be presented in duplicate to court..
• presenting a plaint to the court or to such officer appointed by the Court.
• Comply with rules of pleading.[O.VI & VII]
• Has to be submitted in person/authorised
• Omission to sign and verify a plaint can be rectified later.
• Plaint should be accompanied by affidavit
• Register of suits : particulars entered in the book.

Returning a Plaint: O. 7, R. 10
Rejecting a Plaint: O. 7, R. 11
Admitting a Plaint:

III. Summons: (O. 5)

• Summons to the defendant for appearance and answer the claim [ 30 days ]
• Every summons must be accompanied by copy of the plaint
• The summons constitute:
1. Name of the Court
2. Purpose for which presence is required
3. Date and time of appearance
4. Seal and signature of the judge or officer authorised on his behalf
5. In summary suits under O.XXXVII it must be accompanied by copy of documents
produced along with the plaint

Difference between Summary and summons:

Summary suits under O. 37:

• Plaint- copy of plaint/ copy of all documents for proving the claims
• Summons + copy of plaint + copy of all documents to prove the claim
 • 10 for appearance/ objection –can be converted to summons trial
• Pass judgement
Summons under O. 5:
• Plaint- copy of plaint / copy / original of documents
• Summons- copy of the plaint
• All proceedings

IV. Inspection of Documents: (O. 11, R. 15)

- Every party to a suit shall be entitled at any time to give notice to any other party,
- in whose pleadings or affidavits reference is made to any document
- asking for such documents for the inspection
- and to permit him or them to take copies thereof;

Non complieance - Any party not complying with such notice shall not afterwards be at liberty to
put any such document in evidence unless he shall satisfy the Court that
o such document relates only to his own title,
o he being a defendant to the suit, or
o that he had some other cause or excuse with the Court shall deem sufficient for not
complying with such notice.

V. Written Statement: (O. 8)

• To be submitted within thirty days of service of summons .
• In exceptional circumstances court can extend the time even after 90 days[sec.148]
• Defendant will also submit set-off [reciprocal acquittal of the debts]
• counter claim[claim independent of the plaintiff’s claim-added in 1976][he must submit the list
of documents and copy] relied on.
• The plaintiff has to file written statement on the counter claim.
• Court fees has to be paid.

VI. Amendment of Pleading: (O. 6, R. 17)

- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings
- On just terms,
- and all such amendments shall be made if 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.

VII. Discovery and Inspection: (O. 11)

• Interrogatories
• For disclosure of all documents in the possession of opposite party.
• Discovery of facts can be made by interrogatories
 VIII. Summoning of Witnesses: (O. 16)

Rule 1: On or before such date as the Court may appoint, and not later than fifteen days after the date
on which the issues are settled, the parties shall present in Court a list of witnesses whom they propose
to call
- either to give evidence or
- to produce documents and
- obtain summonses to such person for their attendance in Court.

May be summoned through:

1. Application for the witness , or
2. can call without witness being on the list, with court’s permission.

IX. Production of Original Documents: (O. 13)

The parties or their pleader shall produce on or before the settlement of issues, all the documentary
evidence in original where the copies thereof have been filed along with plaint or written statement.

X. First hearing and settlement of issues [O.X,XIII,R1-2,O.XI-XV]

XI. Hearing of the Suit and examination of Witnesses [O.XVIII]

XII. Judgement [O.XX]-may pronounce judgement at once/after 30 days/60 days

XIII. Decree[O.XX,r.6A]
• The decree will be pronounced within 15 days

ORDER XXI Execution of decree

• R.10 application for execution
• R.11 oral application
• Sec.51 mode of execution
1. By delivery of any property specifically decreed
2. By attachment
3. By sale
4. By arrest and detention
5. By appointing receiver

S. 2(2)- "Decree" means the

- formal expression of an adjudication
- conclusively determines the rights of the parties
- with regard to all or any of the matters in controversy in the suit
- And may be either Preliminary or final.
Essential Elements of a Decree:
i. There must be an adjudication
ii. Such adjudication must have been given in a suit
iii. It must have determined the rights of the parties with regard to all or any of the matter in
controversy in the suit.
iv. Such determination must be of a conclusive nature and
v. There must be formal expression of such adjudication

An Adjudication Means:
• Adjudication means "the judicial determination of the matter in dispute".
• If there is no judicial determination of any matter in dispute or such judicial determination is
not by a Court, It is not a decree;
• e.g., an order of dismissal of a suit in default for nonappearance of parties.

In a suit means:
• Suit means a Civil proceeding instituted by the presentation of a Plaint.
• Thus, every suit is instituted by the presentation of Plaint. Where there is no Civil suit, there is
no decree.

• Exception: But where in an enactment specific provisions have been made to treat the
applications as suits, then they are statutory suits and the decision given thereunder are,
therefore, decrees.

e.g., proceeding under the Indian Succession Act, the Hindu Marriage Act, the Land
Acquisition Act, the Arbitration Act,etc.

Types of Decrees:

1. Preliminary Decree:
• Where adjudication
- decides the rights of the parties with regard to all or any of the matters in controversy in the
suit,
- but does not completely dispose of the suit, it is a Preliminary Decree.

• Rights which are conclusively determined without an appeal in preliminary decree will become
final.

• Phool Chand Vs Gopal Lal

It was held that the Apex Court has decided that "C.P.C. does not prohibits passing of more than one
preliminary decree, if circumstances justify the same and it may be necessary to do so".

2. Final Decree:
• A decree may be final in two ways-
 - When no appeal is filed against the decree within the prescribed period or
- the matter has been decided by the decree of the highest Court
• Where two or more causes of actions are joined together, there can be more than one final
decree

3. Partly Preliminary and Partly Final Decree:

• in a suit for possession of property with mesne profits,
• Decree in possession of the property & mesne profit -it is Partly Preliminary and Partly Final.

Case:
• Vidya charan Shukla v. Khubchand Bagal
• While computing limitation period for filing appeal to HC, it was held that
- Decree must agree with the judgement
- should be capable of execution without referring to any other document
- if decree is passed with consent, it should appear on the face of decree.

XIV. Appeals:
• Sec.96 appeal from original decree [exception- small causes court-Rs.10,000/compromise]
• Sec.100 right to appeal from appellate decree [substantial question of law]
• Sec.109 appeal to SC – from judgement/decree/ order- certified as substantial question of law-
needs to be decided by SC]
Legal Representatives: (S 2(11))

- Represents the estate of a deceased person

- Person who intermeddles with estate of deceased person
- A person sues or sued in representative capacity
- The person on whom estate devolves on death of party sued/suing.
- a stranger can be considered as LR.
Example, liquidator of bankrupt company, receiver appointed by court, executor/administrator
etc.

• Satya Ranjan Roy v . Sarat Chandra Biswa

Deceased had left his wife to represent the estate after death in the case brought against him
and his widow would be the proper representative of the deceased.

• SBI v. Indian Apparels Industries

Overruled the Satya Ranjan Roy case
- A bare reading of the definition of the word "legal representative" or the provisions of Order
22, rule 4, CPC , does not place any restriction on the impleading of any legal representative.
- The court did not agree to the fact that only the widow would be the proper representative of
the deceased.
- Hence the judge before overruling held that - If there are more than one legal representatives,
one in the capacity of legal heir and other an intermeddler, in my opinion, there is nothing in
law to warrant the proposition that only the former category of legal representatives should be
impleaded and not the latter category.

Mesne Profit: (S. 2(12))

- Profits which the person in wrongful possession actually received or might with ordinary
diligence have received
- Together with interest on such profits
- But shall not include profits due to improvements made by person in wrongful possession.
Are Mesne profits.

• It is claimed against wrongful possession to prove defendants liability for trespassing.

• If plaintiff is kept out of possession by different persons, each of them can be made liable
irrespective of whether they are in actual possession or not.

• Specific prayer for mesne profit is required.

• This profit is not related to any benefits the owner may drive from the property but is calculated
on basis of advantage that a person in an unlawful possession may get.
• Measure is the value of wrongful possession.

BSNL v. Radhika Chettri

- Radhika leased property to BSNL in 1993 and expired in 1998
- Terms mentioned that after the expiry, lessee to pay extra rent or vacate
- BSNL stayed and paid same rent
- BSNL gave notice in 2013 -- property was damaged.
- BSNL did not vacate completely even after notice for 7 years -- court held tenancy at sufferance
(tenancy against the wish of the owner) and BSNL deprived the owner of the property from
possession of the property due to non-vacation, thus mesne profits given.

- Nature of loss was even due to breach of contract and mesne profit thus the court decided mesne
profit as contract had been terminated and party did not comply with the termination
UNIT- 2
Meaning of Jurisdiction
● Power of court to hear and try a case
● Boundaries of a courts power to take cognizance of a legal dispute - within which the court
should operate
● Who tells the court that it lacks the jurisdiction -- Statutes and the court themselves based on
what says only (and SC or HC precedents)
Types of Jurisdiction
1. Civil & Criminal
2. Territorial & local
3. Pecuniary
4. Subject Matter
5. Original & Appellate
6. Exclusive & Concurrent
PECUNIARY JURISDICTION (s.6 AND s.15)
• Sec 15: Suit shall be instituted at the court of the lowest grade competent to try it.
• Sec 6: Courts have jurisdiction over suits wherein value of subject-matter of the suit does not
exceed the pecuniary jurisdiction of the court.
• Suit Valuation Act, 1885
o Value of subject-matter of suit is value of the relief claimed in the plaint
o Court-fees calculated based on value of suit
o S.3 Power for State Government to make rules determining value of land for jurisdictional
purposes.
o S.9 Determination of value of certain suits by High Court.
• Ramesh Goyal v. Dwinderpal Singh
The pecuniary jurisdiction of the suit depends on the valuation stated in the plaint unless it is
determined by the Court that the reliefs claimed in the suit have been under-valued.
Where valuation depends on value of a property, if the value of the property after institution of
the suit, increases beyond the pecuniary jurisdiction of the court, it jurisdiction of the court no
longer remains.
• ICICI Bank Ltd. v. Limtex India Ltd
- Credit arrangement - Pet/App looking to declare it null and void and looking for injunction
- sum is 18L
Kol HC has jurisdiction wrt City Civil Court (CCC) upto amount 10L juris
- Pet says its not maintainable in the Kol CCC as the arrangement is based on an master
agreement made in Mumbai so the jurisdiction should be in Mumbai as no cause of action in
Kol so Kol CCC has no jurisdiction
- Def said its not a recovery suit and is merely an injunction case as managers were in Kol --
suit valued at Rs. 200 as per def and is thus under the pecuniary jurisdiction of Kol courts.
- Agreement says that parties are agreeing to submit to the HC of Mumbai
- Kol HC said the suit is valued is at Rs.18L and not Rs.200 so Kol CCC has no jurisdiction
- The suit was wrongly valued and was a claim suit disguised as an injunction and
- RDDBFI bars the Bom HC and should be dealt in the DRT Mumbai.
SUBJECT MATTER JURISDICTION (S.9)
● S.9- Courts to try all civil suits unless barred.—
The Courts have jurisdiction to try all suits of a civil nature excepting suits of which their
cognizance is either expressly or impliedly barred.
● General Principles:
○ A Civil Court has Jurisdiction to try suits of civil nature until their cognizance is barred either
expressly or impliedly
○ Consent can neither confer nor take away jurisdiction of a court
○ A Decree passed by a court without jurisdiction is a nullity and the validity thereof can be
challenged at any stage of the proceedings, in execution proceedings or even in collateral
proceedings
○ There is a distinction between want of jurisdiction and irregular exercise of jurisdiction
○ Jurisdiction of a court depends on the averments made in a plaint and not upon the defense in a
written statement
○ For deciding jurisdiction of a court, the substance of a matter not its form is important
○ Every presumption should be made in favor of jurisdiction of the court
○ Burden of proof of exclusion of jurisdiction of a court is on the party who asserts it
○ Even where jurisdiction of a civil court is barred, it can still decide whether the provisions of an
Act have been complied with or whether an order was passed dehors the provision of the law
Two conditions:
1. Suit must be of civil nature (pvt rights and obligations. No Political and religious questions).
2. Cognizance of such suit must not be expressly or impliedly barred.
• Explanation I - principle question should be of civil nature, incidental questions relating to
case or religious ceremonies are allowed.
o In case of such religious properties –
- to resolve the dispute, the court may end up enforcing the terms of the trust deed
- which specifies the scripture and other terms involved or mentioned in the trust deed to dwell
into aspects of religious scriptures.
- hence for civil disputes the court will address religious issues
• Explanation II- amendment act, 1976 - If the principle question in a suit is of a civil nature
(right to property or to an office) and the adjudication incidentally involves the determination
relating to a caste or religious question or to religious rights and ceremonies, it does not cease
to be a suit of a civil nature and the jurisdiction of a civil court is not barred.
○ The main dispute would be a property dispute itself and the religious aspect is only
incidental.
2. Cognizance of such suit must not be expressly or impliedly barred:
● Expressly barred -- Land reforms Act, Cooperative societies Act, Telegraph Act, Electricity
Act, State Municipalities Act, MV Act(s.94)
○ Barred by any enactment for the time being in force.
○ Specific express statutory provision
○ Every presumption should be made in favour of the jurisdiction of a civil court and the provision
of exclusion of jurisdiction of a court must be strictly construed.
 ○ If there is any doubt about the ousting of jurisdiction of a civil court, the court will lean to an
interpretation which would maintain the jurisdiction.
● Implidely barred -- Arbitration and Conciliation Act, ID Act(s.11)
○ Barred by general principles of law.
○ Statute gives specific, adequate alternative remedy – civil court jurisdiction impliedly barred.
○ Where a specific remedy is given by a statute, it thereby deprives the person who insists upon a
remedy of any other form than that given by the statute.
○ May even be barred due to public policy -- eg: Sec.23 ICA (or) recovery of costs incurred in a
criminal prosecution.
● Irrespective of bar(express/implied) -- civil court has jurisdiction, when:
- Created by precedents and not statutory,
- Special statute provisions not complied with in the suit (suit does not fall within that act
primarily)
- Fundamental principles of judicial procedure not followers
- Alternate remedy not adequate
- Special statute provisions challenged.
● Dhulabhai v. State of MP
- Sales Tax case
- Assesses (manufacturers) filed civil case for wrongful imposition of tax and the provision is
not lawful
- filed regular civil case -- objection raised by tax dept that there is a special provision in the
Sales tax act which expressly barred the jurisdiction for disputes arising from the statute
- HC held the tax to be unconstitutional.
• SC: (general rule/provision/principles)
○ If Special statute providing alternate remedy, is not complied with/followed -- civil
court has jurisdiction.
○ If special statute expressly bars civil court’s jurisdiction, inadequacy of alternative
remedy is relevant, not decisive.
○ If special statute provision challenged as ultra vires -- civil court has jurisdiction
○ If special statute provision declared unconstitutional -- civil court has jurisdiction
○ If tax statute has no provision for refund of excess tax collected -- civil court has
jurisdiction
○ Challenge to assessment under tax statute in tax tribunal only unless constitutionality
of assessing provision in tax statute challenged -- civil court has jurisdiction.
○ Exclusion of civil court’s jurisdiction not to be readily inferred (exception)

TERRITORIAL JURISDICTION (S.16-20)

Suits relating to immovable property: Sections 16 to 18
Suits to be filed in court within whose local jurisdiction the property is situated for suits for:
- recovery of immovable property with or without rent or mesne profits
- partition of immovable property
 - foreclosure, sale or redemption in case of mortgage or charge on immovable property
- determination of any other right or interest in immovable property
- torts to immovable property.
Suits relating to movable property: Section 16(f) and 19.- within the local limits of whose jurisdiction
the property is situate.
• Sec.16 -- Suits to be instituted where subject-matter situate.
Subject to the pecuniary or other limitations prescribed by any law, following suit shall be
instituted in the Court within the local limits of whose jurisdiction the property is situate:
a) recovery of immovable property with or without rent or profits,
b) partition of immovable property,
c) foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable
property,
d) the determination of any other right to or interest in immovable property,
e) compensation for wrong to immovable property,
f) recovery of movable property actually under distraint or attachment,
- clause (f) is linked/associated to Immovable Property viz all the allied properties attached to
the immovable property (can be seen in the ED or IT recovery suits)
- Attached or confiscated by authority
Partition cannot be enforced by clause f
○ Reason: convenience of judiciary -- courts requires evidence such as land records and also easy
to conduct investigations.
○ Cause of action doesn't matter. Jurisdiction depends of the locality of the property solely u/s.16
• Section 17 - Property within jurisdiction of multiple courts – suit can be filed in any one of
such courts.
- immovable property situated within the jurisdiction of different Courts, the suit may be
instituted in any Court within the local limits of whose jurisdiction any portion of the
property is situate;
○ Eg: Factory in BLR, Oil refinery in Mangalore, Coffee estate and farm house in coorg and tea
estate in Ooty.
All can be clubbed together -- hence can be filed in BLR itself.
• Section 19: Suits for compensation for wrongs to person or movables:
Where a suit is for compensation for wrong done to the person or to movable property,
- if the wrong was done within the local limits of the jurisdiction of one Court and
- the defendant resides, or carries on business, or personally works for gain, within the local
limits of the jurisdiction of another Court,
- the suit may be instituted at the option of the plaintiff in either of the said Courts.
Illustrations
- A, residing in Delhi, beats B in Calcutta. B may sue A either in Calcutta or in Delhi.
- A, residing in Delhi, publishes in Calcutta statements defamatory of B.
- B may sue A either in Calcutta or in Delhi.
• State of Maharashtra v Sarvodaya Industries
• Gokuldas Melaram v Baldevdas Chabria
● Sec.20 -- Other suits to be instituted where defendants reside or cause of action arises
 ○ Residuary clause -- General law.
- Where the defendant(s), at the time of commencement of the suit actually, and voluntarily
resides, or carries on business, or personally works for gain
- provided that in such case either the leave of the Court is given, or the defendants who do
not reside, or carry on business, or personally works for gain, as aforesaid, acquiesce in such
institution;
- where the cause of action, wholly or in part, arises.
[Explanation].—A corporation shall be deemed to carry on business at its sole or principal office in
[India] or, in respect of any cause of action arising at any place where it has also a subordinate office,
at such place.
Illustration:
A is a tradesman in Calcutta, B carries on business in Delhi.
B, by his agent in Calcutta, buys goods of A and requests A to deliver them to the East Indian Railway
Company.
A delivers the goods accordingly in Calcutta.
A may sue B for the price of the goods either in Calcutta, where the cause of action has arisen, or in
Delhi, where B carries on business.
● Inox Air Products Ltd. vs Rathi Ispat Ltd.
X and Y are residents of Delhi.
X leased cryogenic plant and machinery, situated in Gaziabad to Y.
On dispute, X sued for permanent injunction restraining Y from using the machinery or running
the plant in Delhi civil Court (s.20)
Allowed.
● Raja Rao v Rajaiah
K filed suit in Chennai for partition of property consisting of immovable property located in
parts of West Godavari district and movable property located in Chennai.
- Held that Sec.20 cant be used
- S.19 is to be eliminated as there is a partition suit and not movable property solely.
- As per Sec.17 --- K will have a choice:
o Either two partition suits in west-godavari (wg+c property partition suits)
o partition wg + partition in chennai
o both cant be filed in chennai.
- partition suit has to be filed in west-godavari court including the property in chennai -- cant
be filed in chennai as we cant extend s.17 to the chennai courts for movablee property.
• State of Maharashtra v Sarvodaya Industries
- P has manufacturing unit in Akola Maharashtra and imports raw materials under license
- goods wrongfully stopped by customs at Bhandara Maharashtra - P suffers loss at his factory
- P sues State in Akola Civil Court – 1975
- S.19 applicable -- wrong is against movable property: Theres a choice:
- Choice is between Bhandara (where wrong has taken place) or Mumbai (based on location
of the principle office of customs dept)
- Note: choice can be opted only by what’s been provided by law
 - But here the Plaintiff has filed in Akola -- Court allowed Akola civil court to have
jurisdiction u/s.19
- Chain of causation wrt place where wrong was done or where def is carrying on business =
akola + bhandara -- s.19
- Based on the interpretation of “wrong done”
● Gokuldas Melaram v Baldevdas Chabria 1961
- Wrong was done in Bom summons was served in BLR -- affects reputation -- principle of
remoteness of damages and chain of causation
- Bom has jurisdiction as:
o Def lives in bom
o Wrong done in Bom
- S.19 -- due to wrong to persons Civil case can be filed in Bom. Civil Court
Ousting of Jurisdiction based on contractual clauses
- Parties can agree to oust, exclude or limit jurisdiction to only one court (Sec. 16,17,19,20)
when multiple courts have jurisdiction.
● Hakam Singh v Gammon Pvt Ltd 1971
○ Based on the agreement, jurisdiction was mentioned as Bombay courts. Appellant filed case in
Varanasi.
○ Since jurisdiction to Bombay City Civil Court is given by a agreement and respondents had Head
office in Bombay, the Bombay court alone has the jurisdiction as the agreement terms are binding
on the parties.
Sec19 r/w Explanation of s.20
● Patel Roadways v Prasad Trading 1992
○ Principle office of Patel in Bombay and Subordinate office in other places.
○ Prasad gave Patel a consignment to office in TN to be delivered in Delhi. Consignment gets
destroyed in godown in Delhi. Prasad filed case in Periakulum TN.
○ Explanation of s. 20 provides alternative locus for corporation’s place of business not an
additional one.
○ Thus, Madras and Delhi have Jurisdiction.
● Objections relating to territorial and pecuniary jurisdiction: Section 21
○ objection be raised at the trial court level itself.
○ objection raised at the earliest possible opportunity in the trial court.
○ there has been consequent failure of justice.
TRANSFER OF SUITS (S.22-S.25)
● Multiple courts with concurrent jurisdiction - defendant apply for transfer
○ Territorial jurisdiction (Ss. 16-20 CPC)
● Section 22: Multiple courts with jurisdiction – defendant apply for transfer on conditions
that:
○ Application made at earliest possible opportunity
○ Notice given to all other parties
○ Court to consider objections of other parties, if any
○ Court to which transfer of suit is sought must have jurisdiction to try the suit.
○ Not an IA but rather as a Misc Appl.
○ Section 23: Application for transfer- Where to file
○ Courts subordinate to same appellate court, transfer application made to the said appellate court.
■ Example: Suit filed in Danapur CJ (JD) Patna city for property dispute - part of property in
Paliganj CJ (JD) Patna - appellant court is common which is Patna District Court - D wants to
transfer suit to Paliganj CJ (JD) - D to file Misc Appl in Patna District court
○ Courts subordinate to different appellate courts but same High court, application to the said High
court.
■ Example: suit filed in Bangalore and part of cause of action arose in Mysore - under Kar HC -
transfer application filed under Kar HC
○ Courts subordinate to different High courts, application to the High court under whom the
subordinate court lies where the suit is first filed.
■ Example: suit filed in Mysore for property dispute - part of property in Wayanad Kerala - Def
wants to transfer to Wayanad - application to be file in Kar HC as suit is pending in Mysore
Civil Court which is subordinate to Kar HC
● Section 24: powers of High Court and District Court to transfer cases
● Grounds for transfer:
○ On application of Def or suo motu
○ Transfer own case to subordinate court
○ Withdraw from subordinate court for trial by itself or transfer to another subordinate court
○ Retransfer
○ On transfer, can direct the point (stage) from where the case is to be continued (start or from any
stage of transfer)
○ Transfer of suit/case by HC or DC to court without jurisdiction also
○ Grounds: Reasonable apprehension of denial of justice - mere suspicion or convenience of
parties or no objection from other parties not sufficient - Matrimonial cases: convenience of wife
relevant.
● Section 25: power of Supreme Court to transfer
○ Not suo motu but rather on application of party only with affidavit
○ Notice to parties
○ Direction to transfer any suit/case from civil court from one state to another - expedient for ends
of justice
○ Directions on point from where the case to be continued (from start or from stage of transfer) -
as per law of court where case/suit first filed to be applied to suit/case
○ Compensation to opposite party (max ₹2000) against frivolous or vexatious transfer applications
○ Nisikant Sukerkar v. Govt. of India (2003) 2 SCC 289;
○ G.C. Care Centre & Hospital v. O.P. Care Pvt Ltd (AIR 2004 SC 2339)
○ Chitivalasa Jute Mills v. M/s. Jaypee Rewa Cement (AIR 2004 SC 1687)
RES SUB JUDICE (S.10)
● Stay of suit.-
○ No Court shall proceed with the trial of any suit in which the matter in issue is also directly
and substantially in issue in a previously instituted suit between the same parties, or
between parties under whom they or any of them claim litigating under the same title
where such suit is pending in the same or any other Court in [India] have jurisdiction to
grant the relief claimed, or in any Court beyond the limits of [India] stablished or continued
by [the Central Government ***.] and having like jurisdiction, or before [the Supreme Court].
○ Explanation- The pendency of a suit in a foreign Court does not preclude the Courts in [India]
from trying a suit founded on the same cause of action.
● Conditions:
○ Suit → subsequently filed - bar on proceedings with its trial
○ Matter in issue in the subsequent suit - directly and substantially in issue in the other pending
suit also
○ Same parties or representatives
○ Same title
■ If title is different matter will change even if parties are same
○ Previously instituted suit pending.
○ Court where former suit pending competent to try subsequent suit
● Case: Heinz Italia vs. Dabur India 2007 Kol HC
● Case: NIMHANS v. C. Parameshwara AIR 2005 SC 242 (Sushmita)
○ X, senior pharmacist in NIMHANS hospital removed from service for misappropriation of drugs
- hospital filed suit in civil court for reimbursement of loss from misappropriation of drugs -
pendente lite X filed complaint againt hospital in ID tribunal for setting aside termination order
and reinstatement - whether trial of case in ID tribunal barred by s.10?
○ V.Imp. -- Problem based questions. -- tricky
● Case will be kept on hold -- till the other court dispenses it or passes a judgement. -- after this
the court (2nd court) will decide the case based on the application of s.11 to dispose the other
case.
RES JUDICATA - SECTION 11
● No Court shall try any suit or issue in which the matter directly and substantially in issue has
been directly and substantially in issue in a former suit between the same parties, or
between parties under whom they or any of them claim, litigating under the same title, in
a Court competent to try such subsequent suit or the suit in which such issue has been
subsequently raised, and has been heard and finally decided by such Court.
● Conditions:
○ Matter directly and substantially in issue is same actually or constructively.
○ Former suit or issue
○ Same parties or representatives
○ Litigating under same title
○ Court has decided former suit -- competent to try subsequent suit also.
○ Matter subsequently and directly in issue heard finally decided by court.
■ S.10 -legal issues are still pending.
■ S.11 - legal issues and legal questions are not pending in the 1st court -- the case has been heard
and decided on merits.
● Appeals do not fall under s.11.
● Expl. 1- date of decision is relevant (s.10 date of filing the case is relevant)
Matter directly and substantially in issue in subsequent same as in former suit actually
(Expl. III - actual res judicata) or constructively (Expl. IV - constructive res judicata).
● Expl.3 and Expl.4 have to be read together.
● Actual - orally or written raised.
● Constructive - ought to have been raised - parties did not raise it - not allowed to raise this ground
again.
● Constructive - mandates that parties have to be careful and raise all grounds -- such grounds
can’t be raised in appeal neither can be filed in/as another suit.
● Request to trial court to add the statement can be done -- but is at the discretion of the trial court.
● Case: State of UP v. Nawab Hussain - AIR 1977 SC 1680
○ WP by SI against dismissal order by DIG of Police on grounds of audi alteram partem - WP
dismissed on merits - SI filed suit to set aside dismissal order on grounds if DIG’s lack of
authority for such dismissal order
○ Expln.IV -- 1st WP SI didn't raise ground of lack of authority, hence 2nd WP is barred by
constructive res judicata.
○ SI should've raised lack of authority in the 1st WP along with audi alteram partem. Hence barred
by constructive res judicata as any ground not raised in 1st case cannot be raised in the 2nd
case/appeal.
Former suit or issue (Expl. I)
● Case: Mathura Prasad v. Dossibai N.B. Jeejeebhoy AIR 1971 SC 2355
○ D obtained purposive lease over land for construction in Bombay - after construction, D applied
to the court for rent-determination under BRRCA - application rejected on the ground that Act
not applicable to open grounds - D applied for rent determination again.
● Pure questions of law are not barred by res judicata.
● Same Parties or representatives
○ Only if 2nd case has been filed between the same parties to the 1st suit
○ Also applicable to co-plaintiffs and co-defendants -- res judicata and minor -- res judicata and
representative suit (Expl. VI).
■ Eg: R3 files against P1 wrt to point no.4 of the case -- res judicata applicable
■ Eg: P2 and P3 -- res judicata would apply if the issues were raised in the 1st case. If new issue
then res judicata not applicable as the issue in 2nd case could not have been raised in the 1st case
at all.
○ Res judicata and minor -- if in the 1st case one of the party is a minor and the legal guardian is
also a party, what will happen when the minor becomes an adult:
○ Mahboob Sahab v Syed Ismail 1995 -
■ X gifter property to minor songs Y,Z - X and his wife sold property to D - D sued X and wife
and Y and Z for mandatory injunction to execute sale deed - suit decreed on merits and sale deed
executed - after attaining majority, Y&Z sued D and X for declaration the sale as not valid
■ SC: case is not barred by res judicata as one of the grounds is that the legal guardian had
defrauded the minor (which is an additional issue) and the 1st case is defeated
● Same Parties litigating under same title:
○ Eg: A is a tenant and an executor of a will -- 2 cases against B (will and tenancy)-- not barred
even if against the same parties -- issues different as title also different.
Court that decided former suit competent to try subsequent suit also (expl II and VIII)
● Sulochana Amma v Narayan Nair
○ A vested life estate to K and R as reversioner - after A’s death, K sold property to N and executed
sale deed - R sued K and obtained decree of declaration and injunction from district munsif court
- X purchased property from N pendente lite - R sued X in Subordinate court’s jurisdiction for
res judicata
○ 1st case filed in Munsif and 2nd case filed in subordinate court -- pecuniary jurisdiction different
due to mense profit -- both cases decided on merits -- both cases passed -- argument regarding
non maintainability was raised as 2nd case was barred by res judicata as 1st case was decided by
munsif court that does not have the jurisdiction -- Based on explanation 8 of s.11 issues relating
to declaration of title res judicata would be applied, but for mense profit would not be barred as
it wasnt raised in the munsif court
○ Res judicata can be applicable to parts of a case as well (unlike s.10).
Matter substantially and directly in issue heard and finally decided by the court on merits
(Expl. V)
● If not on merits (eg. on grounds of jurisdiction) then res judicata would not be applicable.
● State of Maharashtra v M/s National Construction Co. 1996
○ Tender contract with Bank’s performance guarantee - state sued Bank for enforcing performance
guarantee in 1972 in Bom HC - suit dismissed for technical grounds of non-joinder of necessary
party (NC) in 1983 - State filed suit in CJ (Sr Div) against NC and Bank for compensation for
breach of contract - Is 2nd suit barred by res judicata?
○ 2 separate cause of action -- performance guarantee and bank guarantee -- 1st case was of (cause
of action is) performance guarantee and was dismissed on technical ground -- 2nd case was filed
for breach of contract against principle debtor and bank as surety, argument of bank was that 2nd
case was not maintainable as its barred by res judicata -- bank has a separate liability -- issues
 also became different (construction contract and performance guarantee contract) -- res judicata
not applicable -- Case 1: Issues in performance guarantee case are different from issues in
breach of construction contract case -- 2nd case on breach of construction contract is not barred
by res judicata
○ How would the answer change if state files another suit against bank on performance
guarantee with principal-debtor as defendant no.2? -- Will not be barred as the first case was
decided merely on technical grounds and not on merits.
Difference between Res judicata and Res Subjudice
● Matter adjudicated upon || matter pending trial
● Trial of suit/issue decided in former suit || pending suits only, not issues
● Trial of suit/issue decided in former suit barred || proceeding with trial of suit subsequently
barred.
● Court where 1st suit is pending has jurisdiction to decide 2nd suit as well || Court which decided
on 1st suit/issue need not be competent to decide 2nd suit.
● S. 10 is not dismissed and is only suspended -- s. 11 cases are dismissed.
● S.11 courts should be concurrent -- s.10 court doesn't matter.
RES JUDICATA AND WRITS
● CPC is not applicable to writ petitions. (procedure wise)
● (Very Imp) Daryao v State of UP 1961
○ 6 WPs were filed in HC for right to property disputes - different facts, common issues of law -
HC dismissed all WPs on merits - WP filed in Sc - D claimed res judicata not applicable to
FR(vimp)
○ Q: Whether WP to SC u/Art.32 is barred by res judicata on ground that same dispute already
decided in WP to HC u/Art.226?
○ Usually res judicata does not apply in cases of appeal --
○ SC told that jurisdiction of the WP (art.226 and art.32) as both are at par with each other. (even
though art.226 is wider, but both are same)
○ RES JUDICATA WOULD BAR THE WP as it involves the same question of law which is
essential and WPs usually have the same jurisdictional effect (concurrent jurisdiction).
○ If writ appeal then no bar.
○ Ratio: HC u/Art.226 has concurrent jurisdiction as SC u/Art.32. And res judicata would be
applicable. But writ appeal can be filed.
● Res Judicata Applicable to WP except habeas corpus
○ Ghulam Sarwar v. UoI AIR 1967 SC 1335
■ Pakistani national in India on journalism relate visa was arrested without charges -- filed writ of
habeas corpus in the HC -- released and arrested him again and filed the 2nd habeas corpus WP
-- state argued that 2nd case is barred by res judicata as SC made res judicata applicable to writ
petitions -- cause of action changes wrt habeas corpus as each day of imprisonment is a new
cause of action. HENCE HABEAS CORPUS IS NOT BOUND BY RES JUDICATA BUT
OTHER WRITS ARE.
FOREIGN JUDGEMENT
● S.2(6) -- judgement passed by a foreign court.
● Ss. 13, 14, 44A.
● Section 13 declares foreign judgment to be conclusive on the matter directly adjudicated upon
between the same parties or parties under whom they claim under the same title.
● If CPC recognises foreign judgment and res judicata.
● One of the parties is an Indian (minimum criteria) and wants to file a second case on the same
issue in the Indian courts.
Exceptions when foreign judgment not enforceable between the parties in India:
● Foreign judgement as res judicata -- sec.13 unless…(grounds on which res judicata wont be
applicable)
a. Pronounced by court not of competent jurisdiction
■ Jurisdiction of foreign court would be conferred when:
■ Person is subject to foreign country
● Eg: civil transactions between two indian tourists in NY wont be applicable before the NY Courts
-- case can be directly dealt with in India itself.
■ One of the person should be a subject of the foreign country (resident, domicile, citizen, etc) --
foreign court will get jurisdiction -- even applicable when person was temporarily present and
was served summons in that country
■ Person is resident of foreign country when action commenced
■ Person is temporarily present in foreign country when summons served
■ Person sued as plaintiff in earlier case in foreign country
■ Party voluntarily appears on summons or submits to jurisdiction.
b. Not on merit
○ Case: International Woollen Mills v. Standard Wool (U.K) Ltd. AIR 2000 P&H 182 - Every
ex-parte decree does not necessarily mean that it was not given on merits of the case.
c. Proceedings are founded on incorrect view of international law or refusal to recognise law
in India.
■ Case: Anubha vs. Vikas Aggarwal AIR 2003 Del 175.
● Grounds of divorce based on irretrievable breakdown of marriage (IBM) -- case filed in foreign
country which had grounds of irretrievable breakdown of marriage for divorce -- wife filed RCR
case in Del Fam Court -- husband argued that divorce order already obtained in foreign court --
del fam court refused to accept the foreign judgement as IBM was not recognised in India --
parties were Indian, dispute was based on HMA so foreign court had to apply HMA -- hence not
recognized.
d. Proceedings opposed to natural justice.
e. Proceedings where judgement obtained by fraud.
f. Judgement sustains claim based on breach on any Indian law.
■ Eg: Insider trading, prostitution, sale of weed is prohibited in Indian law -- certain countries do
not prohibit such acts -- when there is any transaction with one of the party being Indian, and
there is a civil dispute and foreign courts applies their law, such foreign judgements are not
recognised in India.
○ Sec: 14 -- Presumption of judgement to be by foreign court of competent jurisdiction - burden
of proof on party alleging exception under s.13
○ Courts usually consider the law to be applicable
○ Its up to the party to raise the objection against the enforcement of the foreign judgement.
● Execution of foreign judgement:
● Section 44A
○ execution proceedings under Section 44-A of CPC
● Suit of foreign judgment
● Case: Badat & Co. vs. East India trading Co AIR 1964 SC
OBJECTION TO JURISDICTION - SECTION 21, 21A
● Generally, Def challenges jurisdiction of trial court.
● When to object jurisdiction:
○ At the earliest possible opportunities
○ Before issues are settled in Original Suit
■ Basically when WS is filed by Def.
○ Consequent failure of justice due to jurisdiction error
○ If above not complied - objection on jurisdiction not allowed in appellate stages
■ Can file under SLP under Art.136
○ Applicable to subject-matter, pecuniar, territorial jurisdiction grounds
● Where to raise objection
○ In the trial court itself
○ In appellate court - when objection is raised in trial court and dismissed by trial court
● Sec 21A -
○ Res judicata
○ Suit challenging decree in earlier suit on territorial jurisdiction grounds - barred
REPRESENTATIVE SUIT
ORDER 1 Rule 8: ONE PERSON MAY SUE OR DEFEND ON BEHALF OF ALL IN SAME
INTEREST.
(1) Where there are numerous persons having the same interest in one suit,-
(a) one or more of such persons may, with the permission of the Court, sue or be sued, or may
defend
such suit, on behalf of, or for the benefit of, all persons so interested;
(b) the Court may direct that one or more of such persons may sue or be sued, or may defend
such suit,
on behalf of, or for the benefit of, all persons so interested.
(2) The Court shall, in every case where a permission or direction is given under sub-rule (1), at the
plaintiff’s expense, give notice of the institution of the suit to all persons so interested either by
personal service, or, where, by reason of the number of persons or any other cause, such service is not
reasonably practicable, by public advertisement, as the Court in each case may direct.
(3) Any person on whose behalf, or for whose benefit, a suit is instituted or defended, under sub-rule
(1), may apply to the Court to be made a party to such suit.
● Order I Rule 8 read with sec.11 expl. VI.
(Explanation VI.—Where persons litigate bona fide in respect of a public right or of a private
right claimed in common for themselves and others, all persons interested in such right shall,
for the purposes of this section, be deemed to claim under the persons so litigating.)
○ Private right that is common to multiple set of people -- all such persons interested in the pvt.
right shall be deemed to have a claim -- (basically similar to class action).
○ What will happen if def. is same, claim is same but plaintiff is different -- not barred by res
judicata ideally – BUT barred due to the fact that others have a ‘deemed claim’ along with the
original plaintiff.
○ Not constructive res judicata as its not related to the issue, but here its related to the party.
● Conditions:
- Numerous parties
- no limit on number of parties but should be capable of ascertainment, such as inhabitants of a
village.
- Same interest in suit
- Same interest need not necessarily amount to same cause of action.
T.N. Housing Board v. T. N. Ganapthy (AIR 1990 SC 642)
- Houses allotted to LIC by board - applicants paid settled prince - board demanded additional
amount through individual notices - allotted filed representative suits - Board claimed
individual notices means different cause of action and interest.
- Held that as interest is same event though right violated is of different persons and is different,
all persons should be represented in the same suit.
- O1R8 doesn't mandate the same cause of action, it only mandates the same legal interest.
- Permission granted by court.
- Notice to all parties represented was sent by court.
- Such notice is mandatory. If notice is not given to all interested persons, decree not binding on
non-parties.
 ● Order I Rule 8 -- One person may sue or defend on behalf of all in same interest.
- Difference with PIL -- person filing it is not claiming or is not aggrieved in PIL and in
representative suit, the person himself is seeking redressal as well.
General rule -- only an aggrieved person can approach the court -- exception is PIL,
representative suit.
- Numerous persons (not parties) has not been defined -- but the courts have explained what shall
come under the scope of numerous parties :
o Same legal interest
o right to relief/remedy is arising from the same act
o from the same defendant
- Permission should be granted by the court.
● Procedure -
○ Notice to all persons interested in suit -- Court permission
○ Person represented in suit -- apply to be added as party u/r.8(3). → provided that the person is
not satisfied with the rep. or even if the court feels the same that the plaintiff is not carrying the
suit properly
(court is concerned about the people’s right and thus the court can ask another person to be
substituted as plaintiff -- wide power of the court).
○ Original party can be substituted by court u/r8(5)
○ If suit not properly conducted, any person on whose behalf representative suit filed, can apply to
court to be added as party to suit- (Rule 8(3)
○ If party not proceeding with case with due diligence, court may substitute original party with
another having same interest – (Rule 8(5)
○ The court may allow persons or group of persons to present their opinion and participate in the
suit if the group of persons is interested in a question of law directly and substantially in issue in
the suit and is necessary in public interest – (Rule 8A)

• For Withdrawal/Abandonment of Rep Suit u/O23r.1(5).-- notice to be sent to others and have
consented or court can substitute
○ Decree in rep suit acts as res judicata for all persons represented in suit (though not parties to
suit) -- sec.11 expl VI.
● No abandonment or withdrawal of suit or claim in suit by plaintiff under Order 23 or compromise
with defendant is allowed without notice to all interested persons and leave of court.
● Representative suit is not abated on death of party conducting the suit, other interested person is
added as party to suit which continues.

Order 23 Rule 3B Compromise

3B. NO AGREEMENT OR COMPROMISE TO BE ENTERED IN A REPRESENTATIVE SUIT
WITHOUT LEAVE OF COURT.
(1) no agreement or compromise in a representative suit shall be entered into without the leave of the
Court expressly recorded in the proceedings; and any such agreement or compromise entered into
without the leave of the Court so recorded shall be void.
(2) Before granting such leave, the Court shall give notice in such manner as it may think fit to such
persons as may appear to it to be interested in the suit.
Explanation - In this rule, “representative suit” means,-
(a) a suit under section 91 or section 92,
(b) a suit under rule 8 of Order I,
(c) a suit in which the manager of an undivided Hindu family sues or is sued as representing the other
members of the family,
(d) any other suit in which the decree passed may, by virtue of the provisions of this Code or of any
other law for the time being in force, bind any person who is not named as party to the suit.
JOINDER OF PARTIES :
● Audi alteram partem
● Institution of suit - sec.26 r/w Or.IV.R.1
● Joinder of Parties -- Order I
○ All suits be decided finally in presence of all parties involved in dispute, on merits to avoid
multiplicity of judicial proceedings. (ensure that no one is missed out and audi alteram partem.
Rule 1 Order I of Code of Civil Procedure 1908 "Who may be joined as plaintiffs"
All persons may be joined in one suit as plaintiffs where-
(a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or
transactions is alleged to exist in such persons, whether jointly, severally or in the alternative; and
(b) if such persons brought separate suits, any common question of law or fact would arise
Joinder of Plaintiffs - Rule 1,2
○ Right to relief to all from the same act or transaction and
○ If separate suit filed, common questions or law or fact arise.
○ Then they can be joined in the same case
○ Eg: X commits nuisance over Y’s house, occupied by Z. Can Y and Z file a single suit ove X?
○ Rep suit cant be filed here, but can file joinder case (right here is different as landlord right is
diff from tenant right
Rule 3 Order I of Code of Civil Procedure 1908 "Who may be joined as defendants"
All persons may be joined in one suit as defendants where-
(a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or
transactions is alleged to exist against such persons, whether jointly, severally or in the alternative; and
(b) if separate suits were brought against such persons, any common question of law or fact would
arise.
Joinder of Defendants - Rule 3, 3A, 5, 6, 7
● Right to relief against all from same act/transaction and
● If separate suit filed, common questions of law/fact arise
● Accident between 2 cars P and Q due to negligence of both - S a pedestrian injured - if there can
be a single suit against P and Q filed by S.
● Yes, it can be filed as cause of action is the negligent driving of both drivers -- separate cases
can also be filed as there are common questions of fact/law (eg: extent of compensation arising
due to accident caused by both P and Q, questions of law that would be common is whether or
not both of the drivers are negligent || contributory negligence...)
● Rule 5 -- extent of relief can be varying of all defendants.
● Rule 6 -- where they are parties who are jointly and severally liable from one contract, then the
plaintiff can file one single case against all the parties.
● Rule 7 -- if plaintiff has doubt against whom the legal right is to be enforced, he can add all
possible persons and the court shall decide and clarify.
Necessary and Proper Parties:
● Necessary parties -- presence indispensable for effective disposal of suit and without whose
presence relief can’t be adequately provided.
○ Eviction suit -- is tenant NP??? – yes.
 ● Proper parties -- presence required for deciding suit by effective order can be passed without
party.
○ They can be disconnected to the relief sought
○ Eg: when circumstantial evidence is involved
○ Required but not mandatory
○ Eviction suit by landlord -- is subtenant PP??? -- yes -- main tenant would be NP.
● Ramesh Hirachand v Municpal Corpn Greater Mumbai 1992 -
○ Govt leased petrol station to HP - HP hired R as a dealer - MC issued notice to R for demolition
of construction by R on the property encroaching on public path - R sued MC for injunction -
HP filed an IA to be added as necessary party as R was also violating dealer contract terms by
such construction -- if HP is indispensable to the case -- HP cant be the necessary party as the
claim is against R. HP can be the proper party as the claim is solely against R.
Rule 9 Order I of Code of Civil Procedure 1908 "Misjoinder and nonjoinder"
- No suit shall be defeated by reason of the misjoinder or nonjoinder of parties, and the Court
may in every suit deal with the matter in controversy so far as regards the rights and interests
of the parties actually before it :
- Provided that nothing in this rule shall apply to nonjoinder of a necessary party.
● Misjoinder - persons ought not to be joined as parties to suit u/O1,R1,3 but have been joined
○ Added without cause
○ Wrongly added persons -- too many unwanted persons for the case as P’tiff or Def
● Non-joinder -- Persons ought to have been joined as parties to suit u/OIR1,2 have not been
joined.
○ Need to have been added for effective disposal of the case.
● General principle of rule 9 -- if mistake has been done in adding persons, then it would not
be considered as invalidating error… its a mere irregularity.
● These are mistakes in drafting.
● These mistakes are irregularities and will not invalidate the suit proceedings.
● Proviso -- this irregularity is not acceptable if the parties not added are necessary party, the suit
shall be dismissed (defeated).
● Misjoinder and non-joinder of PP is irregularity.
● Non joinder of NP is a ground of dismissal.
Rule 10 Order I of Code of Civil Procedure 1908 "Suit in name of wrong plaintiff"
- In this case, the Court may at any stage of the suit, if satisfied that the suit has been instituted
through a bona fide mistake, and that it is necessary for the determination of the real matter in
dispute so to do, order any other person to be substituted or added as plaintiff upon such terms
as the Court thinks just.
- Court may strike out or add parties
- no person shall be added as a plaintiff suing without a next friend or as the next friend of a
plaintiff under any disability without his consent.
- Where defendant added, plaint to be amended.
Rule 13 -- objections to misjoinder or nonjoinder
All objections on the ground of nonjoinder or misjoinder of parties shall be taken at the earliest possible
opportunity and, in all cases where issues are settled, at or before such settlement, unless the ground
of objection has subsequently arisen, and any such objection not so taken shall be deemed to have been
waived.
● Power of court un joinder of parties -- Rule 10, 8A
○ Rule 10(2) -- court can strike out parties (can be even done suo motu)
○ Nonjoinders of NP -- can either dismiss the case or can even allow a person to be added in the
case as defendant (power of trial court).
○ Add, strike out, remove, substitute, transpose
■ Transpose -- designation of party changes
○ Power of court in joinder Rule 10, 8A
■ Suit filed in name of wrong person as plaintiff.
■ Bonafide mistake.
■ Addition/substitution of person necessary to determine real dispute.
■ No person added as plaintiff without consent.
■ but defendant can be added without consent.
○ Allow persons to present opinion and participate in suit if interested in substantial issue in suit
and necessary to be heard in public interest.
● Several causes of action may be joined in single suit in certain circumstances.
○ One plaintiff, One defendant, Several causes of action
■ Plaintiff can join several causes of action in single suit against single defendant IF plaintiff is
entitled to relief and defendant is liable for all the causes of action. If above condition not
fulfilled, suit is bad for misjoinder of causes of action. Suit is not to be dismissed but returned
for amendment.
■ Jay Industries v. Nakson Industries (AIR 1992 Delhi 338),
■ Ajoy K Saha v. Ashok Leyland Finance Ltd 2005(1) CHN 572 (Cal)
○ Several Plaintiffs, One Defendant, Several Causes of action
■ Several plaintiffs can join several causes of action in single suit against single defendant IF all
the plaintiffs are jointly entitled to relief and the defendant is liable on all the causes of action.
Order I Rule 1 to be complied with to add several persons as plaintiffs. If the above conditions
not fulfilled, suit is bad for misjoinder of plaintiffs and causes of action. Suit cannot be dismissed
on this ground but returned for amendment.
○ One Plaintiff, Several Defendants, Several Causes of action
■ The plaintiff can join several causes of action in single suit against several defendants IF all the
defendants are jointly liable on all the causes of action. Order I Rule 3 to be complied with to
add several persons as defendants. If above conditions not fulfilled, suit is bad for misjoinder of
defendants and causes of action and suit may be dismissed on this ground.
○ Several Plaintiffs, Several Defendants, Several Causes of action
■ Several plaintiffs can join several causes of action in single suit against several defendants IF all
the plaintiffs are jointly entitled to relief and all the defendants are jointly liable on all the causes
of action. Order I Rule 3 to be complied with to add several persons as defendants. If above
conditions not fulfilled, suit is bad for misjoinder of defendants and causes of action and suit
may be dismissed on this ground.
● Misjoinder of defendants and misjoinder of causes of action together results in
Multifariousness and suit is liable to be dismissed on the ground of multifariousness.
Section 99- No decree to be reversed or modified for error or irregularity not affecting merits or
jurisdiction.—
- No decree shall be reversed or substantially varied,
- nor shall any case be remanded,
- in appeal on account of any misjoinder [or non-joinder] of parties or
- causes of action or any error, defect or irregularity in any proceedings in the suit,
- not affecting the merits of the case or the jurisdiction of the Court
Provided that nothing in this section shall apply to non-joinder of a necessary party.
 UNIT-3
ORDER VI - PLEADINGS
- The whole object of pleadings is to bring parties to definite issues and to diminish expense and
delay and to prevent surprise at the hearing.
- A party is entitled to know the case of his opponent so that he can meet it.
- To ascertain the real disputes between the parties
- To narrow down the area of conflict
- To see where the two sides differ
- To preclude one party from taking the other by surprise and to prevent miscarriage of justice.
- To ascertain real dispute between parties and to prevent surprise to the other party at hearing.

• Virendra Kashinath v. Vinayak N Joshi

The supreme court stated the object of the rule is twofold:
1. First is to afford the other side intimation regarding the particular facts of his case so that they may
be met by the other side.
2. Second is to enable the court to determine what is really the issue between the parties

• Rule 1 Pleadings means plaint or written statement

• Rule 2 Pleadings to state

a) Facts not law, if mixed question of law and fact, party to plead it. [Easementary right]
- This is based on the principle that a judge is bound to apply correct law even if incorrect law is
pleaded by a party.
- A construction or interpretation of a document, being a point of law, need not be pleaded.
- A mixed question of law and fact, however, should be specifically pleaded
- A point of law which is required to be substantiated by facts should be pleaded with necessary facts

b) All material facts

- Failure to include all material facts may lead to dismissal of suit or striking out of defence.
- Means all facts upon which the plaintiff's cause of action or the defendant's defense depends.
- The distinction between “material facts” and “particulars” cannot be overlooked.
Material facts are primary and basic facts which must be pleaded by the party in support of the case
set up by it.
‘Particulars’ are the details of the case. They amplify, refine and embellish material facts.

- Therefore, if a party omits to state material facts, it would mean that the plea has not been raised at
all and the court will not allow the party to lead evidence of that fact at the trial, unless the court
gives that party leave to amend his pleadings.

c) facts, not evidence

- The facts are of two types:
(a)Facta probanda – the facts required to be proved (material facts)
 (b)Facta probantia – the facts by means of which they are to be proved (particulars or evidence)
- The pleadings should contain only facta probanda and not facta probantia .

- Instance - A was insured with an insurance company.

One of the terms of the policy was that the policy would be void if the insured committed suicide.
A actually committed suicide by shooting himself with a pistol and thereupon an action was brought
against the company on the policy.
The company should only plead that A committed suicide. This is facta probanda.
Other facts, that A was melancholy for weeks, that he bought a pistol a day before his death, shot
himself with the said pistol and that a letter was found with him addressed to his wife stating that
he intended to kill himself—all these facts are facta probantia and they need not be pleaded.

d) facts in concise form

- The fourth and the last general principle of pleadings is that the pleadings should be drafted with
sufficient brevity and precision. The material facts should be stated precisely succinctly and
coherently
- It must be divided into paragraphs, numbered/ date and numbers in words and figures
- The facts must be pleaded with certainty. In other words, they should be definitely stated as facts,
and should not be left to be inferred from vague or ambiguous expressions

• Rule 3 Forms of pleading- The forms in Appendix A when applicable, and where they are not
applicable forms of the like character, as nearly as may be, shall be used for all pleading

• Rule 4- Particulars to be given where necessary-

Pleading of misrepresentation, fraud, breach of trust, undue influence, wilful default etc [with dates
& items]
- What particulars are to be set out in the pleading must depend upon the facts of each case.
As a general rule, so much certainty and particularity should be insisted upon as is reasonable,
having regard to the circumstances and the nature of the acts.
Rule 4 has been evolved with a view to narrow the issue and protects the party charged with
improper conduct from being taken by surprise.

• Rule 6 Condition precedent. —

- Any condition precedent, the performance or occurrence of which is intended to be contested, shall
be distinctly specified in his pleading by the plaintiff or defendant, as the case may be;
- and, subject thereto, an averment of the performance or occurrence of all conditions precedent
necessary for the case of the plaintiff or defendant shall be implied in his pleading

• Rule 7 - Generally departure from pleading is not permissible, and except by way of amendment.
- no party can raise any ground of claim or allegation of fact inconsistent with his previous pleadings.

• Rule 8 - Bare denial of fact where a contract is alleged, is a denial, in fact, of the contract and not
its validity or legality.
• Rule 9 - Documents need not be set out at length in the pleadings unless the words therein are
material. The effect of documents to be stated briefly.

• Rule 10 – Alleging of malice, fraudulent intention, knowledge – sufficient to allege the same as
facts, circumstances from which they are inferred need not be stated.

• Rule 11 – Whenever giving of notice to any person is necessary or a condition precedent, pleadings
should only state regarding giving of such notice, without setting out the precise terms of such
notice. unless they are material.

• Rule 12 – Implied contracts or relations between persons may be alleged as a fact, and the series
of letters, conversations and the circumstances from which they are to be inferred should be
specified.

• Rule 13 – Presumption of law

Facts which the law presumes in favor of a party or as to which the burden of proof lies upon the
other side need not be pleaded

• Rule 14 –
- Every pleading should be signed by the party or one of the parties or by his pleader.
In case of inability, may be signed by any person duly authorized.
- Rule 14-A - Pleadings to contain address of party in prescribed form duly signed as under rule 4.
- Address may be changed by duly filling the forms.
- The address furnished in the statement shall be called the "registered address" of the party
- It shall be deemed to be the address of the party for the purpose of service of all processes in the
suit of in any appeal from any decree or Order therein made and for the purpose of execution.
- Service of any process may be effected upon a party at his registered address in all respects as
though such party resided there.
- False or fictitious address by plaintiff or defendant
o Registered address was furnished by a plaintiff, - stay the suit
o Furnished by defendant – defense to be struck out
- after correct address is provided, they may apply to the court to set aside the stay or the order striking
out the defense
- Court may do so if satisfied that the party was prevented by any sufficient cause

• Rule 15 – Every pleading should be verified on affidavit

a. by the party or
b. by one of the parties or
c. by a person acquainted with the facts of the case
- State the date & place of verification with the number of paragraphs verified.
- Person verifying shall also submit an affidavit in support of pleading
- Omission to verify is a mere irregularity u/s. 99, which could be cured at any stage
• Rule 16 Striking out pleadings by the court at any stage of the suit on any of the following grounds:
i. The pleading is unnecessary, scandalous, frivolous or vexatious
ii. The pleading tends to prejudice or delay fair trial of the suit
iii. The pleading is an abuse of the process of court.

Party allowed to include alternative pleadings even if inconsistent,

- The court would look upon such pleadings with suspicion.
- The underlying object of allowing alternative pleas and permitting alternative reliefs to be claimed
in one litigation is to obviate the necessity of another litigation.
- Once the court has given decision on a definite stand taken by party on one of the alternative
pleadings, party not allowed changing such pleadings.
- Moreover, all the inconsistent pleas sought to be raised by a party must be maintainable at law.
• Prem Raj v. D.L.F Housing & Construction Co.
- A plaintiff cannot pray for a declaration that a particular contract is void and in the alternative for
the specific performance of the same contract since it is not permissible under Section 37 of the
Specific Relief Act, 1877.
- Section 37 of the Act provides that a plaintiff suing for specific performance of the contract can
alternatively sue for the rescission of the contract but the converse is not provided.

Pleading in Writ Petitions

- There is essential distinction between pleading under the code and a pleading under Article 32 or
226.
- Under the code, every pleading (plaint or written statement) should state only material facts.
- In a writ petition, the party should not only state material facts but also the evidence in support and
proof of such facts by annexing necessary orders and documents.

• Rule 17 - Amendment of Pleadings

- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings
- such terms as may be just,
- all such amendments shall be made as may be necessary for the purpose of determining the real
questions in controversy between the parties

- Amendment allowed before trial commences if:

i. Amendment necessary to determine real dispute between the parties; and
ii. Amendment can be allowed without injustice to opposite party which cannot be compensated
with costs.
iii. Party could not have raised the plea before in spite of due diligence due to subsequent events
after institution of suit

Example - during trial of suit for declaration of title, if the plaintiff is forcefully dispossessed of
immovable property by the defendant, amendment can be allowed to include relief of recovery of
possession of property and permanent injunction
• Jai Jai Ram Manohar Lal v National Building Material Supply
- Irregularity in Name of the plaint – Amendment sought – HC declines – as amendment averment
did not mention that it was bonafide.
- SC overruled – not necessary to expressly mention that error in initial plaint is bona fide.
- A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or
even infraction of the rules of procedure.

When Amendment not allowed:

1. If amendment is not necessary to determine real dispute between the parties or without
substance
- Plaintiff’s property was damaged by A and B, filed suit for permanent injunction & damages.
Plaintiff obtained judgment against A in suit for recovery of money [separate suit]
A sought to amend his written statement to include the judgment against A as bar to suit against
A. Amendment not allowed as it is not necessary to determine the real dispute between the
plaintiff and A

2. If amendment introduces a totally different, new, inconsistent case or changes the fundamental
character of the plaint/defence.
• K.C. Taneja v. Pramod Kumar Taneja
Order 6 Rule 17--Amendment of pleadings-
Suit for possession and mesne profit against defendant (son of plaintiff)
Issues framed and thereafter plaintiff sought amendment of plaint to the effect that defendant is not
the son but adopted son of his sister and defendant has no right and title to the suit property
Plaintiff is trying to introduce a new case--Dismissed.

3. If the effect of the amendment is to take away legal right accrued in favour of the opposite
party.
• Modi Spinning & Weaving Mills Co v. Ladha Ram & Co.
- Amendment was sought by defendants in Written Statements
Such amendment would change the relationship from that off agent to purchaser and would remove
certain rights that had been accrued as a result of the earlier admission
- Held amendment not allowed

• Steward v North Metropolitan Tramways Co

- The plaintiff filed a suit for damages against the tramway company for damages caused by the
negligence of the company in allowing the tramway to be in defective condition.
- The company denied the allegation of negligence.
- It was not even contended that the company was not the proper party to be sued.
- More than six months after the written statement was filed, the company applied for leave to amend
the defense by adding the plea that under the contract entered into between the company and the
local authority the liability was of the latter and, therefore the company was not liable.
- At the date of the amendment application, the plaintiff's remedy against the local authority was
time-barred.
- Had the agreement been pleaded earlier, the plaintiff could have filed a suit even against the local
authority. Under the circumstances, the amendment was refused.

4. If amendment application is not made bona fide.

5. Rule 18 - If amendment application not made on time - Amendment to be done within time
specified by the court in the order or within 14 days.

INSTITUTION OF SUITS

- Section 26 and Order 4 provide for institution of suits

- The expression “plaint” has not been defined in the code.
- “A private memorial tendered to a court in which a person sets forth his cause of action, the
exhibition of an action in writing.

Presentation of plaint: Section 26, Or.4 R.1

- Every suit must be instituted by the presentation of a plaint in duplicate or in such other manner as
may be prescribed by the Code
- by the plaintiff himself or by his advocate or by his recognised agent or by any person duly
authorised by him
- Therefore, generally, a proceeding which does not commence with a plaint is not a suit
- A plaint must be presented to the court or such officer as it appoints in that behalf.(Rule 1(1) of
Order 4)
- Generally, the presentation of a plaint must be on a working day and during the office hours.
However, there is no rule that such presentation must be made either at a particular place or at a
particular time.
- A judge, therefore, may accept a plaint at his residence or at any other place even after office hours,
though he is not bound to accept it.
But if not too inconvenient, the judge must accept the plaint, if it is the last day of limitation.
- Every plaint must contain necessary particulars.
- Register of suit –entry in the register book (O.4,r.2)
- Thereafter, the particulars of a suit will be entered by the court in a book kept for the said purpose,
called the register of civil suits.
- After the presentation, the plaint will be scrutinized by the Stamp Reporter. If there are defects, the
plaintiff or his advocate will remove them. Thereafter the suit will be numbered.
Suit against a Minor
- A suit against a minor can be said to have been instituted when a plaint is presented and not when
a guardian ad litem is appointed.
Suit against a Dead person
- According to one view, a suit against a person who is dead at the time of institution thereof is of no
legal effect.
- According to the other view, however such suit is not void ab inito and can be continued against
legal representatives of deceased defendant.
- Thus, if a suit is filed against a dead person by the plaintiff without the knowledge about the death
of the defendant and takes prompt action as soon as he comes to know about such death, then he
cannot be deprived of his remedy against the legal representatives of the deceased defendant
 ORDER VII Plaint

Essential Elements of Plaint – Rules 1-8

- A plaint must contain the following elements/particulars as per Rule 1:

1. The name of the court in which the suit is brought;

2. The name, description and place of residence of the plaintiff;
3. The name, description and place of residence of the defendant.
4. Where either party is a minor or a person of unsound mind, a statement to that effect;
5. The facts constituting the cause of action and when it arose;
6. The facts showing that the court has jurisdiction;
7. A statement of the value of the subject matter for the purpose of jurisdiction and court fees;
8. The reliefs claimed by the plaintiff, simply or in the alternative if portion of claim relinquished by
plaintiff, the amount so relinquished.

- Rule 2 - Where the plaintiff seeks the recovery of money, the plaint shall state the precise amount.
In claim of unsettled accounts or mesne profits - not necessary to value future mesne profit, the
approximate amount shall be stated.

- Rule.3 - In suit relating to immovable property, description of property with survey numbers,
boundaries must be specified [description should be sufficient to identify the property].

- Rule 4 - Where the plaintiff sues in a representative character the plaint shall show
o that he has an actual existing interest in the subject-matter,
o that he has taken the steps (if any) necessary to enable him to institute a suit concerning it.

- Rule 5 - The plaint shall show that the defendant is or claims to be interested in subject-matter, and
that he is liable to be called upon to answer the plaintiff's demand.

- Rule 6 - If suit is time-barred, the grounds for exemption from law of limitation shall be given.

Relief
- Rule.7 - Relief to be specifically stated. General or other reliefs –not necessary to plead specifically,
that may be given as the court may think just.
Excess relief claimed – suit will not be dismissed, but decree will be given for what he is entitled
to.

- Rule 8 - Where plaintiff claims relief for several causes of action based on distinct grounds, the
causes of action to be stated separately and distinctly.

Admission of Plaint
- Rule 9 - Procedure on admitting plaint [as per the 2002 Amendment]
- The plaintiff shall endorse on the plaint, or annex thereto, a list of the documents (if any) which he
has produced along with it;
- summons will be served along with the copy of the plaint.
- Plaintiff will be asked to submit the duplicate copies along with fee for service of summons within
7 days.

Return of Plaint [O. VII R. 10, 10-A, 10-B]

- Rule 10 Court order return of plaint at any stage of the suit:
o On ground of want of jurisdiction.
- Court to endorse:
o date of presentation of plaint,
o name of party presenting it and
o reasons for returning the plaint.
- Returned plaint filed in proper court – to be freshly heard and not continued.
When the plaint is filed in the proper court, after getting it back from the wrong court, it cannot be
said to be a continuation of the suit and the suit must be deemed to commence when a plaint is filed
in the proper court

- Order of return of plaint - appeal allowed under Order XLIII Rule 1(O.43 R.1).

Rule.10 A - Power of court to fix a date of appearance in the Court where plaint is to be filed after
its return.
1. Where, in any suit, after the defendant has appeared, the Court is of opinion that the plaint should
be returned, it shall, before doing so, intimate its decision to the plaintiff.
2. After intimation of return of plaint, plaintiff can make an application in the same specifying
o the Court in which he proposes to present
o Praying for a date for appearance
o Requesting a notice of date
3. On such an application, the Court shall, notwithstanding the lack of jurisdiction,:
o Fix a date
o Give a notice
4. On giving such notice, it’s not necessary for the court to serve summons to the defendant. And the
said notice shall be deemed to be a summons for appearance.
5. Where such an application is allowed, the plaintiff shall not be entitled to appeal against the order
returning the plaint.

Rule.10 B Power of appellate court to transfer case to proper court –

- On an appeal against an order for the return of plaint,
- the Court hearing the appeal confirms such order,
- the Court of appeal may direct plaintiff to file the plaint in the Court in which the suit should have
been instituted
- and fix a date for the appearance of the parties
• Allahabad Bank v Shank (Steel Fab Pvt Ltd)
• Appellant/Nationalized Bank, filed suit for recovery of money notwithstanding fact that such suit
was barred and proceedings are entertainable only by Tribunal.
• Appellant on objection of Defendants, moved application u/o VII r. 10 CPC praying for direction
for return of plaint instead of rejection of same –
• Application as well as suit was dismissed vide impugned orders
• Held, Appellant has alleged in plaint that claim of Bank was more than Rs. 10 lakh and in view of
such claim, Civil Court has no jurisdiction to entertain suit, appropriate remedy being available
before Tribunal created under the Act
• Court was quite justified this is not case of lack of either territorial or pecuniary jurisdiction of Trial
Court, but is one where Statute has created total bar of jurisdiction of Civil Court.
• The Court can invoke provision of o. VII r. 10 only to case of lack of territorial or pecuniary
jurisdiction.

• Amar Chand v Union of India

Suit filed in Karnal Court – transferred to Panipat Court- Panipat court ordered it to be returned to
proper court – then filed at trial court.
Held, suit instituted in Trial Court by presentation of plaint returned by Panipat Court was not a
continuation of suit filed in Karnal Court.

Rejection of Plaint [O. VII R 11]

The plaint shall be rejected in the following cases:—

a) Non-disclosure of cause of action

• I.T.C. Ltd. v. Debts Recovery Appellate Tribunal

- Appellant was made defendant in original plaint
- Appellant applied for rejection of plaint on basis of there being no valid cause of action against
him
- SC held that the plaint does not disclose cause of action, clever drafting, ritual of repeating
words or creation of an illusion cannot insert a cause of action in a plain
- Inasmuch as the mere allegation of withdrawal of monies without movement of goods does not
amount to a cause of action based on 'fraud', the Bank cannot take shelter under the words
'fraud' in the plaint.
- The appeal was allowed

• Shakti Sugars Ltd v Union of India

If on a meaningful and not formal reading of the plaint, no cause of action is disclosed, the plaint
should be rejected
b) Suit/relief undervalued and not corrected valuation within time given by court (court-fees)
c) Plaint insufficiently stamped and not corrected within time given by court
d) Plaint is not filed in duplicate
e) Suit is barred by law – res judicata/limitation/any other law
f) Plaintiff has not complied with Rule 9, i.e., not paid the fees for service of summons with time given
by court.
g) Any other grounds – example vexatious/frivolous /signed by unauthorised person, etc.

• Rule 12 – Procedure for rejecting - Court has to record reasons for rejection of plaint in writing.
No revision lies against the order for rejection.

• Rule 13 - Where rejection of plaint does not preclude presentation of fresh plaint
No res judicata on order rejecting plaint, i.e., rejection shall not of its own force preclude the
plaintiff from presenting a fresh plaint in respect of the same cause of action.

Section 96
- An order rejecting a plaint is a deemed "decree" within the meaning of Section 2(2) of the
Code, and, therefore, is appealable – S. 96
1. An appeal shall lie from every decree passed by any Court exercising original jurisdiction the
Court authorized to hear appeals from the decisions of such Court.
2. An appeal may lie from an original decree passed ex parte.
3. No appeal shall lie from a decree passed by the Court with the consent of parties.
4. No appeal shall lie, except on a question of law, from a decree in any suit when the amount or
value of the subject-matter of the original suit does not exceed three thousand rupees.
 ORDER V – SUMMONS

- When the plaintiff files a suit, the defendant has to be informed that the suit has been filed
against him,
- and that he is required to appear in the court to defend it.
- The intimation which is sent to the defendant by the court is technically known as "summons"

Object of Summons to Defendant: audi alteram partem: No one should be condemned unheard.
If the defendant is not served with the summons, a decree passed against him will not bind him.

Essentials of Summons:

• Rules 1:
(1) To appear & answer the claims within 30 days from service of summons.
If the defendant appears and admits claims at presentation of plaint no summons shall be issued.
(2) Defendant may appear In person/pleader/pleader accompanied by some person to answer the
question
(3) Summons shall be signed by the judge/ duly authorised officer on his behalf
If summons not duly served, decree not binding on defendant.
• Rule 2 - every summons shall be accompanied by a copy of plaint
• Rule 3 - court may order D/P to appear in person (Consequence of non-appearance- O.9,r.12 )
• Rule 4 - no party will be ordered in person to appear unless residing within specified limits

Contents of Summons:

• Rule 5 - Court shall decide if summons is to settle issues OR for final disposal.
The same shall be mentioned in the Summons.

• Rule 6 - Fixing day for appearance

Court will decide keeping in mind the current business of court, place of residence of defendant
& time necessary for serving summons.

• Rule 7 - summons to order defendant to produce documents relied on by him-relying on r.1-

A.O.VIII

• Rule 8 - for final disposal defendant will be directed to produce his witness.

Order 16 summons to witnesses - Where the serving officer delivers or tenders a copy of the
summons to the defendant personally, or to an agent or other person on his behalf, he shall require:
- the signature of the person to whom the copy is so delivered or
- tendered to an acknowledgment of service endorsed on the original summons
Serving of summons

• Rule 9 - Delivery or transmission of summons for service

- Where the defendant resides within the jurisdiction of the Court the summons shall, be
delivered or sent to the proper officer to be served by him or one of his subordinates.
- The proper officer may be an officer of a Court other than that in which the suit is instituted,
and, where he is such an officer, the summons may be sent to him by post

Service by plaintiff: Rule 9A

Plaintiff submits application for serving summons
court will allow application - plaintiff will deliver personally/ through officer appointed by the
court.
If defendant is not accepting the summons, court re-issue the summons on basis of the
application by the plaintiff in regular manner by the court

• Rule 10 Modes of Service of Summons

- Delivering or tendering a copy
- signed by the Judge or such officer as he appoints in this behalf,
- and sealed with the seal of the Court.

• Rule 11 - where there are more defendants than one, service of the summons shall be made on
each defendant.

• Rule 12 - Wherever it is practicable service shall be made on the defendant in person.

• Rule 13 - In case of business, to the manager or agent.

• Rule 14 - In case of suit dealing with immovable property if defendant and no agent are
empowered then it can be served upon any agent in charge of such property.

• Rule 15 - If defendant is not there, can be served to adult member of the family (not any
servant).

• Rule 16 – Acknowledgement
The serving officer shall require
- the signature of the person to whom the copy is so delivered or tendered to
as acknowledgement of service endorsed on the original summons.

• Rule 17 - Procedure when defendant refuses to accept service, or cannot he found

The serving officer shall
- affix a copy of the summons on the outer door or some other conspicuous part of the house
 - shall then return the original to the Court from which it was issued, with a report of
circumstances

• Endorsement of summons by serving officer: Rule 18 –

Serving officer under rule 16 to endorse or annex to the original summon,
- the time and manner in which it was served
- Name and address of the person identifying the defendant
- Witness of delivery

• Bhabia Devi v Parmanand Prasad

- Suit for Specific performance
- When the process server had gone to serve summons to respondent personally on April 2, 1984
to the village and also on April 9, 1984 when the registered card acknowledgement was sent,
she refused to acknowledge it.
- Attempt through gazette publication was also tried
- Ex-Parte Hearing – Held Valid
 Order VIII – Written Statement

• Rule 1 - Written statement to be filed within 30 days from date of service of summons or within
the time extended by the court .
- Annex list of documents to the WS
- WS – reply to plaint
- Not defined in the code
- Filed by defendant/his duly constituted agent
- w/s filed by one person will not bind other defendants
- Defendant should file w/s within 30 days and can be extended upto 90 dys[2002 amendment]
• Salem bar association V. UOI,
Time can be extended only in exceptional circumstances & the legislature has fixed upper limit of
90 days
- Particulars of Written Statement: Rules 2-5, 7-10.
• New facts must be specifically pleaded[R.2]
• Where a defendant denies an allegation of fact in the plaint, he must not do so evasively[R.4]
• Specific denial—[R.3] - the defendant must deal specifically with each allegation of fact of which
he does not admit the truth, except damages
• Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated
to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against
a person under disability
• On failure to file written statement under this provision, the Court has been given the discretion
either to pronounce judgment against the defendant or make such other order in relation to suit as
it thinks fit [R. 10]
• Where the defendant relies on distinct grounds of defence /set-off/counterclaim founded upon
separate and distinct facts, they should be stated separately and distinctly
- Any new ground of defence which has arisen after institution of suit may be raised by the defendant
in his WS
- No pleading subsequent to the written statement of a defendant other than by way of defence to set-
off or counter-claim shall be presented except by the leave of the Court and upon such terms as the
Court thinks fit [R. 9]
Set-Off- Rule 6
- Mutual debts between the plaintiff and defendant - Cross-claim which off-sets the original claim
- Conditions for set-off:
i. Suit must be for recovery of money.
ii. Sum of money claimed as set-off must be ascertained.
iii. Sum claimed as set-off must be legally recoverable.
iv. All defendants must be entitled to set-off amount from plaintiff
v. All plaintiffs must be liable for the set-off amount.
vi. Sum claimed as set-off must not exceed pecuniary jurisdiction of court where suit filed.
vii. Plaintiff and defendant must fill same capacity or character in respect of defendant’s set-off.
- Extinction of debts in which two persons are reciprocally debtors to each other.
- Two types of set-off
- Legal & equitable set-off
- Legal set-off[O.8,r.6]
The suit must be for equitable sum of money
The sum of money must be ascertained
Sum must be legally recoverable by the defendant
It must not exceed the pecuniary jurisdiction of the court
- Equitable set-off
- R.6 deals with legal set-off only
- There are cases in which set-off is allowed in case of unascertained sum of money.
- Allowed by court of equity in England-provided both cross demands arise out of same transaction
- Eg: A sues B for Rs.15000/- under a contract and B can claim-set off towards damages sustained
by him due to breach of same contract
Difference between legal and equitable set-off:
- ascertained sum only; unascertained sum
- right of defendant; discretion of court
- time barred debt not allowed; may be time barred
- Govt of United States of Travancore & Cochin v Bank of Cochin Ltd
An attachment under Order 21 Rule 46 has merely the effect of preventing private alienation of the
property; it does not create any security, charge or lien in favour of attaching creditor
Any question of set off can arise only in respect of dues which are outstanding and which have not
already been adjusted. A plea of satisfaction by adjustment is essentially different from a plea or
claim of set off.
COUNTER CLAIM: Rules 6A-6G
- Claim made by defendant in a suit against the plaintiff
- 1976 Amendment Act - Claim made by the defendant against the plaintiff in the plaintiff’s suit.
- 6B. Counter-claim to be stated in WS
- Gurbachan Singh v Bhag Singh
In other words, by laying the counter-claim pecuniary jurisdiction of the Court cannot be divested
and the power to try the suit already entertained cannot be taken away by accepting the counter-
claim beyond its pecuniary jurisdiction.
Thus considered, we hold that in a suit for injunction, the counter-claim for possession also could
be entertained, by operation of Order 8, Rule 6A(1) of Code of Civil Procedure
- Conditions for counter claim:
not time-barred
not to exceed pecuniary jurisdiction
- Counter claim treated as plaint under Order VII and plaintiff reply treated as written statement under
Order VIII
- Saves time of the court & avoids multiplicity of proceedings
- Gives right to the defendant to raise a plea of set-off in addition to the counter-claim in same suit
- Decides all disputes between the parties
Modes of setting up Counterclaim
- In WS filed under O.8,r.1
- By amending the WS with the leave of the court
- In subsequent pleading under 0.8,r.9
- Defendant can set up counter claim against plaintiff and co-defendant but not against co-defendant
only.
- Counter-claim heard and decided on merits even if suit withdrawn or dismissed. (Rule 6D, 6F)
- Laxmidas v Nanabhai AIR 1964 SC 11
The appellant filed a suit for the enforcement of an agreement to the effect that a partnership
between himself Bai Itcha since deceased had been dissolved and that the partners had arrived at a
specific amount to be paid by the appellant in full satisfaction of the share of Bai Itcha in the
partnership. The respondents, who were the heirs of Bai Itcha, not only denied the allegations in the
plaint but also made a counter-claim in the written statement for the rendition of account against
the appellant and paid court fee on the counter-claim as on a plaint. At a later stage, the respondents
made a prayer to treat the counterclaim as a plaint in a cross-suit
Respondent has he any right whatever to claim that such a counter-claim made by him in his written
statement be treated as a plaint in across-suit. A court permitting a counter-claim to be treated as a
plaint in cross-suit does so merely by way of granting an indulgence. Where a counter-claim is so
treated as plaint, the plaint must be deemed for the purposes of the law of limitation to have been
filed on the day the court made the order permitting it to be so treatedIf plaintiff fails to file reply
to counter claim within time given, court may pass judgment against plaintiff or as it deems fit (Rule
6-E)
Difference between set-off and counter-claim:
- set-off is cross-claim; counter-claim is cross-suit
- set-off in money suits and ascertained sum only; counter-claim in any suit even for unascertained
sum
- Alternate dispute resolution mechanism[Sec.89]
 PRODUCTION, IMPOUNDING & RETURN OF DOCUMENTS - ORDER XIII
Production of Documents:
• Parties to produce relevant documents in original at time of filing their pleadings, or latest at the
time of settlement of issues (Rule 1)
• Documents not produced in the original at the said time are not allowed to be relied upon during
trial as evidence. (Order VII and Order VIII)
- Court can allow production of documents at later stage if document is genuine and material to
decide the real dispute.
Admission of documents as evidence
- Where document is admitted as evidence, endorsement is made on the document by the court with
the following details: number of suit ,name of party producing the document , date of production
& statement that the document is admitted (Rule 4)
- If document is entered in account book or public record or document of a third party, copy of the
document is marked for identification and after comparison with the original, it is admitted (Rule
5)
- Documents admitted as evidence form part of the record of the suit (Rule 7)
- Court can reject documents on grounds of irrelevance or inadmissibility at any stage of the suit and
record reasons for rejection (Rule 3)
- When rejected, court to make endorsement on document with following details:
number of suit
name of party producing the document
date of production
statement that the document is rejected (Rule 6)
- Mandakini Naik vs. G.K. Naik and Ors.
- Property - interpretation - document bequeathing property to daughter by father and expressed
nothing as such regarding its operation - can such document be called will - will should come into
force after death of testator and should be revocable - held, document not to be called will as no
time given for coming into force of its provisions.- document rejected
- Documents not admitted as evidence do not form part of record of the suit and are returned (Rule
7)
Impounding of documents:
- Court can direct any document in any suit to be impounded and kept in custody on sufficient cause
such as apprehension of forgery, manipulation or destruction of the documents or material objects
as evidence (Rule 8)
- Court can suo motu or on application of party, send for records of any other suit from its own
records or other court (Rule 10)
Return of Documents (Rule 9)
- Documents produced and admitted as evidence are returned to the party producing them:
i. When suit has been disposed and no appeal is allowed;
ii. When suit has been disposed and appeal is allowed but no appeal has been filed before expiry of
the limitation period;
iii. When suit is pending and party provides sufficient cause for return of document and delivers
certified copy as substitute with undertaking to produce original when required.
 Impounding of documents:
- Court can direct any document in any suit to be impounded and kept in custody on sufficient cause
such as apprehension of forgery, manipulation or destruction of the documents or material objects
as evidence (Rule 8, 11)
- Court can suo motu or on application of party, send for records of any other suit from its own
records or other court (Rule 10)
 Affidavit – Order XIX
- Meaning: Sworn statement in writing made under oath before authorized officer.
- Essentials:
declaration by person
contain facts within personal knowledge of deponent
in writing
addressed in first person
sworn before authorized officer
- Evidence on Affidavit:
Court can order any fact to be proved by affidavit (Rule 1)
Opposite party has right to cross-examine the witness whose affidavit is produced as evidence (Rule
2)
False affidavit – perjury – punishable offence under IPC
Perjury –giving false evidence[sec.191 IPC]
Sec.193 IPC-7yrs imprisonment
 Admissions – Order XII
- Party to a suit may give notice of admission by writing –stating that he admits truth of whole / any
part of the claim (Rule 1)
- Admissions if true and clear are the best proof –hence no necessity to prove those facts
- Three types:
1. In pleadings
• a } actual-those contained in pleading or in answer to interrogatories[O.11,r.22]
• b] constructive-those which are merely the consequence of form of the pleading adopted[O.8,R
3,4,5]
2. Admission by agreement
3. Admission by notice
- Once the fact is admitted it becomes concluded and no longer open to the Court to reopen it &
reappraise the evidence
- Either party at any stage may move to the Court for judgement on admissions[r.6]
- When the admission is without any reservation –it extents to proof and truth of the document &
contents
- Notice to admit documents[r.2]- party may call upon other to admit within 7 days from the date of
service of notice
- If neglects to accept , the cost of proving the document relies with the party who is neglecting
- Before 1976 no time limit for admitting evidence-
- in 1976- 15 days
- 2002 after amendment in 1999-7 days
- Admission between co-defendants cannot be treated as evidence against the plaintiff
- R.2-A- document not specifically admitted / denied may be deemed to be admitted
- When unreasonably neglects or refuses to admit a document after service of notice – court may
direct him to pay compensation
- R.3 form of notice –form.9, Appendix C
- R.3-A power of Court to record admission- no notice needed
- R.4 – notice to admit- not later than 9 dys before the dates fixed for hearing
 DISCOVERY OF FACTS & DOCUMENTS – ORDER XI
- Object: to allow party to get further information on facts (discovery of facts) or further information
on documents (discovery & inspection of documents) from the opposite party.
Interrogatories: Rules 1-11
- List of questions in writing by a party to opposite party to obtain further information on facts of
the opponent’s case with the leave of the court [Rule 1, Section 30(a)]
- Done by application before court to allow interrogatories, court to order allowing/refusing
interrogatories within 7 days (Rule 2)
- Answers of the opposite party to interrogatories - evidence in trial (Rule 22)
- Answer in form of affidavit within 10 days of order of court (Rule 8, 9)
- Interrogatories may be delivered to following parties: -
a) By plaintiff to defendant and vice-versa
b) By plaintiff to co-plaintiff or defendant to co-defendant if issues between them
c) By party to officer/member of corporation where the corporation is a party (Rule 5)
d) By party to next friend/guardian where minor / lunatic is a party (Rule 23)
Objections to Interrogatories:
- By opposite party in the affidavit that interrogatory irrelevant, scandalous, not bonafide,
unreasonable, vexatious, immaterial at the present stage, injurious to public interest, privileged &
confidential information such as those provided in Sections 122 - 129 of Evidence Act, 1872 (Rule
1, 6)
- Meenakshi Sundaram v Radha Krishna
Election - Jurisdiction - Order 11, Rule 1 of Code of Civil Procedure,1908 - Objection raised by
Petitioner/Respondent on administering certain interrogatories to Respondent was overruled by
Election Tribunal on ground that provisions contained in Code of Civil Procedure would apply in
regard to discovery and inspection, therefore, Petitioner was well within his limits to administer
interrogatories to Respondent
Hence, this Civil Revision Petition - Whether, Tribunal had jurisdiction to order interrogatories -
Held, under Order 11, Rule 1, and following rules under said order, Election Tribunal, was acting
as Tribunal in conformity with rules of Code of Civil Procedure, and was empowered to order
interrogatories
Further, if there was any objection from Respondent to answering of these interrogatories, it was
bounden duty of Trial Court to examine as to how far they were tenable
However, Tribunal did not consider rules of equity which ought to have been in its mind when it
was ordering interrogatories - Petitioner was asked whether he had written letters, and did several
acts referred to in interrogatories; and if he answers them, they may endanger him, and if that answer
was not in any way mala fide, then certainly it ought to be considered sufficient as not to entitle
Court to order interrogatories - Election Tribunal was not justified in ordering interrogatories -
- Power of court: Set aside / strike out interrogatory – unreasonable, vexatious, lengthy & vague,
unnecessary, oppressive, scandalous (Rule 7)
- Dismiss suit / strike out defence if plaintiff / defendant respectively do not comply with order to
answer interrogatory (Rule 21)
- Costs: Costs of administering interrogatory paid by party giving it.
Discovery & Inspection of Documents
- Party to suit can apply to court directing opposite party to disclose on oath documents in his
possession relating to the suit (Rule 12)
- Court order discovery of documents if any of the following requirements fulfilled:
i. It is necessary for fair disposal of suit or
ii. It is necessary for saving costs (Rules 12)
- Objections / refusal to order discovery:
i. It is not necessary or
ii. It is not necessary at that stage of the suit or
iii. It is unduly oppressive to the party or
iv. Documents are privileged.
- To inspect documents mentioned in pleadings (plaint/WS), party can give notice to opposite party
directly without interference of court to produce such documents for inspection and make copies
before issues are framed (Rule 15)
- To inspect documents not referred in the pleadings, party to apply to court with affidavit on
relevance of such document. Court can order opposite party to produce such document of the party’s
inspection if any one of the following requirements are fulfilled:
i. It is necessary for fair disposal of suit or
ii. It is necessary for saving costs [Rule 18(2)]
- TA Ahammed Kabeer v Azeez
Inspection of Election Ballots sought
Election Tribunal has undoubtedly the power to direct discovery and inspection of documents
within the narrow limits of Order XI of CPC. Inspection of documents under Rule 15 of Order XI
of CPC may be ordered of documents which are referred to in the pleadings or particulars as
disclosed in the affidavit of documents of the other party, and under Rule 18(2) of other documents
in the possession or power of the other party. The returning officer is not a party to an election
petition and an order for production of the ballot papers cannot be made under Order XI of Code of
Civil Procedure.
But the Election Tribunal is not on that account without authority in respect of the ballot papers. In
a proper case where the interests of justice demand it, the Tribunal may call upon the returning
officer to produce the ballot papers and may permit inspection by the parties before it of the ballot
papers which power is clearly implicit in Sections 100(1)(d)(iii), 101, 102 and Rule 93 of the
Conduct of Election Rules 1961.
This power to order inspection of the ballot papers which is apart from Order XI Code of Civil
Procedure may be exercised, subject to the statutory restrictions about the secrecy of the ballot paper
prescribed by Sections 94 and 128(1).
- Opposite party to reply within 10 days from notice, objecting or allowing inspection of documents
with details of time and place for inspection. (Rule 17)
Power of court:
- Court can order discovery of document from any party to suit suo motu at any stage of the suit.
(Rule 14)
- Dismiss suit / strike out defence if plaintiff / defendant respectively fail to comply with order of
discovery or inspection of documents.
- Postpone / reserve the application for discovery of facts/documents if court is satisfied that it is
premature and some issue in the suit should be determined first to decide on the right to seek
discovery of facts/documents. (Rule 20)
- Bagyalakshmi Ammal v. Srinivas Reddiar
Discovery of documents - Sections 53 and 151, Order 11 Rules 14, 15, 18, 18 (2) and 20 of Code
of Civil Procedure, 1908, Rules 63 and 64 of Civil; Rules and Land Acquisition Act
Discovery may precede particulars if two conditions satisfied first where information required
necessarily in opponent's knowledge - secondly no unfair attempt to fish out a case being made out
Presently, request for inspection in light of allegation in affidavit filed in support of petition appears
to be unfair attempt to fish out a case by means of asking for inspection of documents - documents
relevant for purpose of suit cannot by itself be sufficient reason to Order premature inspection or
discovery before suit taken up for trial
 UNIT 4- APPEARANCE, EXAMINATION AND TRIAL

ORDER IX (O. 9) - APPEARANCE OF PARTIES AND CONSEQUENCES OF NON

APPEARANCE

• Rule 1 - Parties to suit to appear in court in person or by pleaders on day fixed by court in summons.

Only Plaintiff appears

• Rule 2 - In case the defendant does not appear due to failure of plaintiff to pay the fees within time
for service of summons, the suit is dismissed.
If the plaintiff fails to serve the summons, the suit won’t be dismissed.
• Rule 5 – When defendant fails to appear due to failure on the part of plaintiff in applying for fresh
summons when the first summons were unserved, the suit is dismissed.
In this case, plaintiff needs to apply for fresh summons within one month of the return of unserved
summons unless:
- They failed to discover the defendant’s address.
- such defendant is avoiding the service.
- Any other sufficient cause
In these cases the court may extend the time period or the plaintiff may bring a fresh suit.
If out of several defendants, some do not appear, the court may still pronounce judgement against
all.

Electrical Industries Corporation v PNB

• Rule 6 – In absence of the defendant, when a suit is called for hearing:

i. When a summon is duly served – The case shall be heard ex-parte.
ii. When a summon is not served – Court shall direct a second summon.
iii. When a summon is served but not in due time - Court shall postpone the hearing.
If the delay in serving was due to the plaintiff, they shall bear the cost of the postponement.

Biswanath Chakroborty v Bagala Chakraborty A

• Rule 7 – If the defendant appears only on the day of adjourned hearing with a good cause for
previous non-appearance, he may be heard in answer to the suit as if he had appeared on the initial
date on the T&C of the court wrt the -costs.

• Rule 11 – The procedure in case of non-appearance of one or more of several defendants- A decree
can be passed against a defendant who remains absent. This rule also applies to a minor defendant
whose guardian does not appear.

Both parties do not appear

• Rule 3 – If both the parties don’t appear, the suit is dismissed. This dismissal order may be set aside
without serving a notice to the defendant.
• Rule 4 – When a suit is dismissed under rule 2 or 3, the plaintiff may bring a fresh suit (res judicata)
or may apply for setting aside the dismissal if he can satisfy the court of sufficient cause for failure
of payment of fees(2) or non-appearance(3).

ABE Marine Products Ltd v Indian Bank

Only Defendant appears

• Rule 8 – If only the defendant appears, the suit is dismissed but if defendant admits part of plaintiff’s
claim, court may pronounce judgment against defendant on his admission and dismiss suit for rest
of claim.
In this case, a review under O. 47 R. 1 may be filed within the period of limitation to set aside the
order of dismissal.

Remedies available to plaintiff against decree dismissing suit for non-appearance:

a. Appeal against decree dismissing suit under Section 96
b. Application for review of ex-parte decree under Order XLVII Rule 1
c. Application for setting aside decree dismissing suit under Order IX Rule 9

Surendar Kumar v Pappu

• Rule 9 – Decree against plaintiff by default bars fresh suit. Order to set aside decree shall be
applicable on a suit set aside under r.8.
If the plaintiff provides for a sufficient cause for non-appearance, an application for a setting aside
decree may be filed following a mandatory notice.
(Unlike a dismissal under r. 2 and r. 3, following a dismissal under r.8, a fresh suit cannot be brought
as per r. 9. Because res judicata is applicable)

Manilal V. Gulam Hussain

Plaintiff left the Court house before his case was called on the belief that ,it will take some time.
Not a sufficient cause therefore no setting aside decree was passed.

• Rule 10 – If there are more than one plaintiff and some do not appear, court proceed with suit as if
all plaintiffs present.

• Rule 12 states the consequence of non-appearance without showing sufficient cause to appear in
person.
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.
1. If the plaintiff does not appear, dismiss the suit.
2. If the defendant does not appear, pass an ex-parte order.

• Rule 13 – Setting aside ex-parte decree:

Remedies available to defendant who does not appear and ex-parte decree is passed against him in
suit are-
i. Appeal against ex-parte decree under Section 96
ii. Application for review of ex-parte decree under Order XLVII Rule 1
iii. Suit on ground of fraud by plaintiff as reason for non-appearance
iv. Application to set aside ex-parte decree under Order IX Rule 13

Grounds for setting aside ex-parte decree:

a) Summons not duly served; or
b) Non-appearance due to sufficient cause
• Lal Devi v Vaneeta Jain AIR 2007 SC 1889
• Rani Chowdhary v Suraj Chowdhary AIR 1982 SC 1397
 ORDER XIV (O. 14) – SETTLEMENT OF ISSUES

• Rule 1 - Framing of issues

• Issues refer to material propositions of fact / law affirmed by one party and denied by other party.
• Material propositions refers to statements that plaintiff alleges to show his right to relief and
defendant alleges to show his defence.
• Each material proposition affirmed and denied forms distinct issue.
• KINDS OF ISSUES:
i. Issue of fact
ii. Issue of law
iii. Mixed issue of fact and law
A general issue whether plaintiff entitled to relief of declaration of title, possession and injunction is
not proper.
• At the first hearing of the suit the Court shall, after reading the plaint and the written statements,
proceed to frame and record the issues on which the right decision of the case appears to depend.
• Nothing in this rule requires the Court to frame and record issues where the defendant at the first
hearing of the suit makes no defence.

• Rule 2 - Court to pronounce judgment on all issues

1. Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to
the provisions of sub-rule (2), pronounce judgment on all issues.
2. Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case
or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue
relates to-
(a) the jurisdiction of the Court, or
(b) a bar to the suit created by any law for the time being in force,
and for that purpose may postpone the settlement of the other issues.

Manager, Bettiah Estate v. Sri Bhagwati Saran

Unless a preliminary point has been pleaded by the parties, it cannot be considered as a preliminary
issue.

• Rule 3 - Materials from which issues may be framed:

a. allegations made on oath by the parties, or by any persons present on their behalf, or made by the
pleaders of such parties;
b. allegations made in the pleadings or in answers to interrogatories delivered in the suit;
c. the contents of documents produced by either party.

• Rule 4 - Court may examine witnesses or documents before framing issues

Where the Court is of opinion that the issues cannot be correctly framed without such examination,
it may adjourn the framing of the issues and may compel the attendance of any person or the
production of any document.
• Rule 5 - Power to amend and strike out, issues
The Court may at any time before passing a decree:
- amend the issues or
- frame additional issues
- strikeout any issues that appear to it to be wrongly framed or introduced.

• Rule 6 – Questions of fact or law may by agreement be stated in form of issues

Where the parties to a suit are agreed as to the question of fact or of law to be decided between
them, they may state the same in the form of an issue, and enter into an agreement in writing.

• Rule 7 - Court, if satisfied that agreement was executed in good faith, may pronounce
judgment
a. that the agreement was duly executed by the parties;
b. that they have a substantial interest in the decision of such question as aforesaid, and
c. that the same is fit to be tried and decided,

The court it shall proceed to record and try the issue and state its finding or decision thereon in the
same manner as if the issue had been framed by the Court.
 ORDER XVII (O.17) – ADJOURNMENT

The general rule reads that the hearing of evidence must be done on a day to day basis until all
witnesses in attendance have been examined.
The exceptions to the same are provided in order 17.

• Rule 1 - Court may grant time and adjourn hearing.

1. If sufficient cause is shown, the court may adjourn the hearing.
2. Cost of adjournment to be fixed by the court.
- Adjournment may not be granted at the request of a party unless the circumstances are beyond their
control.
- As per the 1999 amendment act, , maximum 3 adjournments are allowed.

• Rule 2 - Procedure if parties fail to appear on day fixed.

In this case, the Court may proceed to dispose of the suit in one of the modes directed in that behalf
by Order IX or make such other order as it thinks fit.

• Rule 3 - Court may proceed notwithstanding either party fails to produce evidence, etc.
If a party fails to produce evidence, or perform any act for which time has been granted, the court
may:
a. if the parties are present, proceed to decide the suit forthwith, or
b. if the parties are, or any of them is, absent, proceed under rule 2.

FACTORS CONSIDERED FOR GRANTING ADJOURNMENT:

i. ground for seeking adjournment to be factually correct
ii. ground to be sufficient
iii. reasons for adjournment to be recorded by court
iv. cost to be imposed on adjournment

Salem Advocate Bar Association v Union of India

In this case, the legal position of the amendments to the CPC was clarified.
With respect to order 17, it was stated that grant of adjournment where the circumstances are beyond
the control of the party.
In such a case, there is no restriction on number of adjournments to be granted. It cannot be said
that even if the circumstances are beyond the control of a party, after having obtained third
adjournment, no further adjournment would be granted. There may be cases beyond the control of
a party despite the party having obtained three adjournments.
 ORDER XIX (O. 19) - AFFIDAVITS

An affidavit is a sworn statement made under oath before an authorised officer.

• Rule 1 – Power to order any point to be proved by affidavit

The court may, for sufficient reasons, order that any particular fact or facts may be proved by
affidavit.
If it appears that either party bona fidely desires the production of a witness, and that such witness
can be produced, an affidavit shall not be authorised.

• Rule 2 – Power to order attendance of deponent for cross-examination.

Opposite party has right to cross-examine the witness whose affidavit is produced as evidence.

• Rule 3 – Matters to which affidavits shall be confined

1. Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove.
2. The costs of every affidavit be paid by the party filing the same.

ATTRIBUTES OF AN AFFIDAVIT
• Declaration by person
• Contain facts within personal knowledge of deponent
• In writing
• Addressed in first person
• Sworn before authorized officer

A false affidavit would be considered as perjury which is a punishable offence under IPC
 INTERESTS AND COSTS

SECTION 34 – INTEREST

1. Where a decree is for the payment of money, the Court may, in the decree,
- order interest at a reasonable rate from the date of the suit to the date of the decree,
- in addition to any interest on such principal for any period prior to the institution of the suit,
- with further interest at such rate not exceeding six per cent, per annum from the date of the decree
to the date of payment

where the liability in relation to the sum so adjudged had arisen out of a commercial transaction:
- the rate of such further interest may exceed six per cent, per annum,
- but shall not exceed the contractual rate of interest
where there is no contractual rate, the rate at which moneys are lent or advanced by nationalised
banks in relation to commercial transactions.

2. Where such a decree is silent with respect to the payment of further interest on such principal sum
from the date of the decree, the Court shall be deemed to have refused such interest, and a separate
suit therefore shall not lie.

SECTION 35 – COSTS

General Cost – To secure expenses incurred in litigation, not as penalty to party losing the suit.
Successful party entitled and opposite party to pay.
Exceptions: if successful party guilty of misconduct, not entitled, court record reasons.

1. The costs of and incident to all suits shall be in the discretion of the Court.
Court shall have full power to determine by whom, out of what property and the extent of such
costs.
Lack of jurisdiction shall not bar the exercise of such power.

2. Where the Court directs that any costs shall not follow, it state its reasons in writing.

SECTION 35 A - COMPENSATORY COSTS IN RESPECT OF FALSE OR VEXATIOUS

CLAIMS OR DEFENCES

Compensatory Cost – Compensation to injured party - Maximum of Rs. 3,000/-

1. If any party objects to the claim or defence
on the ground that the claim false or vexatious
and it is proven so,
the court may, after recording its reasons
make an order for payment to the objector by the party by whom such claim was put forward ,
of costs by way of compensation.
2. No court can make any such order for payment of an amount exceeding 3000 rupees or exceeding
the limits of the pecuniary jurisdiction , whichever amount is less.

3. No person against whom an order has been made under this section shall be exempted from any
criminal liability in respect of any claim or defence made by him.

4. The amount of any compensation awarded under this section shall be taken into account in any
subsequent suit.

Section 35 B - Costs for causing delay

If on any date fixed for the hearing of a suit, a party
a. fails to take the step which he was required
b. obtains an adjournment
Court may make an order requiring such party to pay to the other party such costs which would be
reasonably sufficient to reimburse the other party in respect of the expenses incurred by him in
attending the Court.
And payment of such costs shall be a condition precedent to the further prosecution of-
a. the suit by the plaintiff, where the plaintiff was ordered to pay such costs.
b. the defence by the defendant, where the defendant was ordered to pay such costs.

Ashok Kumar v Ram Kuma

Order XX A – MISCELLANEOUS COSTS

• Rule 1 - Provision relating to certain items

The court may award costs in respect of –

a. expenditure incurred for the giving of any notice required to be given by law before the institution
of the suit
b. expenditure incurred on any notice which, through not required to be given by law, has been given
by any party to the suit to any other party before the institution of the suit
c. expenditure incurred on the typing, writing or printing of pleadings filed by any party
d. charges paid by a party for inspection of the records of the Court for the purposes of the suit
e. expenditure incurred by a party for producing witnesses
f. in the case of appeals, charges incurred by a party for obtaining any copies of judgments and decrees
which are required to be filed along with the memorandum of appeal.

• Rule 2 - Costs to be awarded in accordance with the rules made by High Court

Order XXV – Security for Costs

Court can order plaintiff to furnish security for payment of costs incurred or likely to be incurred
by
defendant in following cases:
a. plaintiff going/residing outside India;
b. plaintiff does not have sufficient immovable property in India;

Failure to furnish security would lead to suit dismissed.

Mere absence of immovable property in India is not a ground for demanding security for costs.
 ORDER XXVI (O. 26) – ISSUE OF COMMISSIONS
Part III of CPC talks about commissions as incidental proceedings.

Section 75- Power of Court to issue commissions.

As per this, subject to certain conditions, the court may issue a commission –
a. to examine any person;
b. to make a local investigation;
c. to examine or adjust accounts; or
d. to make a partition;
e. to hold a scientific, technical, or expert investigation;
f. to conduct sale of property which is subject to speedy and natural decay and which is in the custody
of the Court pending the determination of the suit;
g. to perform any ministerial act.

The above mentioned are the grounds for which commissions are issued.

Order 26 states the provisions for commissions to examine witnesses

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 may be exempted if:

• Rule 1: Cases in which Court may issue commission to examine witness –

The Court may, if necessary, issue a commission for the examination of any person within the local
limits of its jurisdiction who is exempted under this Code from attending the Court or who is from
sickness or infirmity unable to attend it
The court may accept a certificate purporting to be signed by a registered medical practitioner as
evidence of the sickness or infirmity of any person, without calling the medical, practitioner as a
witness.

• Rule 2: Order for Commission –

An order for the issue of a commission for the examination of a witness may be made by the Court
either of its own motion or on the application
It should be supported by affidavit of any party to the suit or of the witness to be examined.

• Rule 3: Where witness resides within Court's jurisdiction –

Such a commission may be issued to any person whom the Court thinks fit to execute it.

• Rule 4: Persons for whose examination commission may issue –

A court may issue a commission for examination of the following parties:
a. any person resident beyond the local limits of its jurisdiction;
b. any person who is about to leave such limits before the date on which he is required to be examined
in Court; and
c. any person in the service of the Government who cannot in the opinion of the Court, attend without
detriment to the public service

• Rule 5: Commission or request to examine witness not within India –

Where any Court to which application is made for the issue of a commission for the examination of
a person residing at any place not within India is satisfied that the evidence of such person is
necessary, the Court may issue such commission or a letter of request.

• Rule 6: Court to examine witness pursuant to Commission –

Every Court receiving a commission for the examination of any person shall examine him or cause
him to be examined pursuant thereto.

• Rule 7: Return of commission with depositions of witnesses –

Where a commission has been duly executed, it shall be returned, together with the evidence taken
under it, to the Court from which it was issued.
Unless the order for issuing the commission has otherwise directed, in which case the commission
shall be returned in terms of such order.

• Rule 8: When depositions may be read in evidence –

Evidence taken under a commission shall not be read as evidence in the suit without the consent of
the party against whom the same is offered unless:
(a) the person who gave the evidence is
- beyond the jurisdiction of the Court,
- or dead
- or unable from sickness or infirmity to attend to be personally examined,
- or exempted from personal appearance in Court,
- or is in the service of the Government who cannot attend without detriment to the public service
(b) the Court authorizes the evidence of any person being read as evidence in the suit

ORDER 18 RULE 4(2)

This provides for recording of evidence by commission. As per rule 4(2), -
- The evidence (cross-examination and re-examination) of the witness in attendance,
- whose evidence (examination-in-chief) by affidavit has been furnished to the court
- shall be taken orally by a Commissioner
- to be appointed by the court from amongst the panel of Commissioners prepared for this purpose
on the same day.

Provided that, in the interest of justice and for reasons to be recorded in writing, the court may
direct that:
- the evidence of any witness shall be recorded by the court in the presence
- and under the personal direction and superintendence of the judge.
 ORDER XXXVIII (O. 38)- ARREST BEFORE JUDGEMENT

As a rule, an arrest is made after a decree is passed but in certain extenuating circumstances, arrest
may be made before judgement.

Rule 1 of Order 38 provides for Where defendant may be called upon to furnish security for
appearance.

In case the court, by affidavit or otherwise, is satisfied of the following –

(a) That the defendant, with intent to delay the plaintiff, or to avoid any process of the Court or to
obstruct or delay the execution of any decree that may be passed against him:
i. Has absconded or left the local limits of the jurisdiction of the Court, or
ii. is about to abscond or leave the local limits of the jurisdiction of the Court, or
iii. has disposed of or removed from the local limit soft the jurisdiction of the Court his
property or any part thereof, or

(b) that the defendant is About to leave India under circumstances affording reasonable probability
that the plaintiff will or may thereby be obstructed or delayed in the execution of any decree

The court may issue a warrant to arrest the defendant and bring him before the Court to show cause
why he should not furnish security for his appearance.

Provided that:
- the defendant shall not be arrested if he pays to the any sum specified in the warrant as sufficient
to satisfy the plaintiffs claim;
- and such sum shall be held in deposit by the Court until: the suit is disposed of or until the further
order of the Court.

SECTION 57: Subsistence-allowance.

The State Government may fix scales, graduated according to rank, race and nationality, of monthly
allowances payable for the subsistence of judgment-debtors.

As per this section, Plaintiff has to deposit subsistence allowance for detention of defendant in
prison.

DEFENDANT MAY BE RELEASED IN THE FOLLOWING CASES:

- when suit disposed
- if security furnished or warrant amount paid
- on serious illness
- failure to pay subsistence allowance
- on request of plaintiff
 NO ARREST IN THE FOLLOWING CASES:
1. woman in suit for payment of money (section 56)
2. suit for immovable property under section 16(a) – 16(d)
3. member of legislature bodies/committee during continuance of meeting
4. judicial officer on the way to, from or while presiding in court (section 135)

SECTION 56: Prohibition of arrest or detention of women in execution of decree for money.
Notwithstanding anything in this Part, the Court shall not Order the arrest or detention in the civil
prison of a woman in execution of a decree for the payment of money.

SECTION 95: Compensation for obtaining arrest, attachment or injunction on insufficient ground.
1. In case of arrest or attachment effected or a temporary injunction granted:

(a) on Insufficient grounds

(b) the suit of the plaintiff fails and it appears to the Court that there was no reasonable or probable
grounds for instituting the same

the defendant may apply to the Court for an award against plaintiff an amount not exceeding Rs.
50,000 for the expense or injury (including injury to reputation) caused to the defendant.

2. An order determining any such application shall bar any suit for compensation in respect of such
arrest, attachment or injunction.

Chelsea Mills v Chorus Girls Inc

Nidhi Dhawan v Sunil Dhawan

 ORDER XXXVIII (O. 38) - ATTACHMENT BEFORE JUDGEMENT

This is an exception to the general rule of attachment.

Raman Tech and Process Engineering Co v. Solanki Traders

Order 38:

• Rule 5 - Where defendant may be called upon to furnish security for production of property
1. If the court is satisfied that the defendant, with the intent to obstruct or delay the execution of any
decree, is about to:
(a) Dispose his property
(b) remove property from court jurisdiction
In such cases, court may direct the defendant to either furnish a security or to appear and show
cause why he should not furnish security.
2. The plaintiff shall specify the property required to be attached and the estimated value thereof.
3. The Court may also in the order direct the conditional attachment.

• Rule 6 - Attachment where cause not shown or security not furnished

1. In this case, the court may order that the property specified be attached.
2. Where the defendant shows such cause or furnishes the required security, and the property specified
or any portion of it has been attached, the Court shall order the attachment to be withdrawn.

• Rule 7 - Mode of making attachment

It shall be made in the manner provided for the attachment of property in execution of a decree.

• Rule 8 - Adjudication of claim to property attached before judgment

Such a shall be adjudicated upon in the manner provided for the adjudication of claims to ‘property
attached in execution of a decree.’

• Rule 9 - Removal of attachment when security furnished or suit dismissed

- When suit disposed
- If defendant furnishes security
- On request of plaintiff
- If decree satisfied
- If decree set aside or reversed on appeal.

• Rule 10 - Attachment before Judgment not to affect rights of strangers, nor bar decree -holder
from applying for sale
Such attachment shall not:
- affect the rights, existing prior to the attachment, of persons not parties to the suit
- Bar any person holding a decree against the defendant, from applying for the sale of the property in
execution of such a decree.
• Rule 11- Property attached before Judgment not to be re-attached in execution of decree
If a decree is passed in the favour of the plaintiff, it is not necessary to apply for fresh attachment
of property in execution of such decree.

• Rule 12 - Agriculture produce not attachable before Judgment

• Rule 13 - Small Cause Court not to attach immovable property

SECTION 95: Compensation for obtaining arrest, attachment or injunction on insufficient ground.
1. In case of arrest or attachment effected or a temporary injunction granted:

- on Insufficient grounds
- the suit of the plaintiff fails and it appears to the Court that there was no reasonable or probable
grounds for instituting the same

the defendant may apply to the Court for an award against plaintiff an amount not exceeding Rs.
50,000 for the expense or injury (including injury to reputation) caused to the defendant.

2. An order determining any such application shall bar any suit for compensation in respect of such
arrest, attachment or injunction.

SBI v M.P Iron & Steel Works Pvt Ltd

 ORDER XXXIX (O.39) – TEMPORARY INJUNCTIONS

Temporary injunction is a judicial process wherein parties are required to either do or refrain from
doing a particular act. This does not refer to suspension of a judicial proceeding but only directs the
actions of a party.

Grounds for injunction-

• Rule 1 - Cases in which temporary injunction may be granted

(a) In case a property in dispute is in danger of being wasted, damaged or alienated or wrongfully sold
(b) If the defendant threatens, or intends, to remove or dispose of his property with a view to defrauding
his creditors
(c) If the defendant threatens to cause injury to plaintiff

• Rule 2 - Injunction to restrain repetition or continuance of breach

Injunction may be granted in any suit for restraining the defendant from committing a breach of'
contract or other injury of any kind.

Triple test
Principles to be considered before granting an injunction – The following questions must be
satisfied by the court to justify the order of temporary injunction.

1. Prima facie case: whether the plaintiff has a prima facie case?

2. Irreparable injury: whether the plaintiff would suffer irreparable injury if the injunction is not
granted?

3. Balance of convenience: Whether the balance of convenience favours the plaintiff?

Balance of convenience is a legal term used to describe how a court would weigh up the
convenience for you of being granted the injunction, in comparison to the inconvenience that it may
cause for the other side.

Dalpat Kumar v Prahlad Singh,

In this, the court had recognised the triple test principles.
i] There is a serious disputed question to be tried in the court and that an act, on the facts before the
court, there is
probability of his being entitled to the relief asked for by the plaintiff/defendant.
ii] The Court's interference is necessary to protect the party from the species of injury. In other
words irreparable
injury or danger would ensue before the legal right would be established at trial and
iii] That the comparative hardship on mischief or inconvenience which is likely to occur from
withholding the
 injunction will be greater than that would be likely to acted from.
granting it.

Best Sellers Retail v Aditya Birla

Gujarat Bottling Co. v. Coca Cola & Co

Consequences and duration –

Duration of a temporary injunction:

1. Till the pendency of suit
2. For the limited period prescribed by court
3. Till higher court approached for appeal

• Rule 2A - Consequence of disobedience or breach of injunction

In case of disobedience, the court may:
- order the property of the person guilty of such disobedience or breach to be attached (not more than
1 year),
- order such person to be detained in the civil prison ( not exceeding 3 months), unless in the
meantime the Court directs his release.

If disobedience continues after 1 year of attachment, the property attached may be sold and out of
the proceeds, the Court may award such compensation as it thinks fit to the injured party.

General rules -

• Rule 3 - Before granting injunction, Court to direct notice to opposite party

Notice to be directed in all cases except –
- where the object of granting the injunction would be defeated by the delay.

If injunction is proposed without notice, Court shall record the reasons for its opinion that the object
of granting the injunction would be defeated by delay.

In this case, the applicant has to deliver to the opposite party, immediately after the injunction was
granted:
- a copy of the application of injunction
- a copy of the affidavit filed in support of the application;
- a copy of the plaint
- copies of documents on which the applicant relies,

The applicant must then file an affidavit stating that these documents have been sent.

• Rule 3A - Court to dispose of application for injunction within thirty days

 Where an injunction has been granted without giving notice to the opposite party, the Court shall
finally dispose of the application within thirty days.
In case of inability, it shall record its reasons in writing.

• Rule 5 - Injunction to corporation binding on its offices

Vacating Injunction –

• Rule 4 - Order for injunction may be discharged, varied or set aside

This may be done on application of any party dissatisfied by the order.

- If in an application for temporary injunction, a party his knowingly made a false or misleading
statement, the Court shall vacate the injunction unless, for reasons to be recorded.
- where an order for injunction has been passed after giving to a party an opportunity of being heard,
the order may only be discharged, varied or set aside if:
1. It is necessary because of a change in circumstance or
2. The Court is satisfied that the order has caused undue hardship to that party.

Temporary mandatory injunction –

This may be issued in exceptional circumstances. These circumstances include
- Extreme hardship
- Compelling circumstances
- When status-quo existing on the date of institution of suit is be restored

The jurisdiction to issue mandatory injunction is discretionary jurisdiction which can be exercised
under section 37 to 41 of Specific Relief Act.

Kishore Kumar Khaitan v Praveen Kumar Singh

 ORDER XL (O.40) - APPOINTMENT OF RECEIVER

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.
A receiver is appointed with the objective to preserve suit property/funds and rights of parties during
litigation.
The appointment is only ordered in extreme cases at the discretion of the court. A receiver may be
appointed either on application by a party to the suit but by the court Suo motu.

Principles to be followed while appointment of a receiver:

1. Court’s discretion : That the question of appointing a receiver is a matter resting in the discretion
of the Court
2. Prima facie case of the plaintiff : That a receiver should not be appointed unless the party has an
excellent chance of succeeding in the suit
3. Appointment is a protective relief necessary to prevent harm : That plaintiff himself shall show
that there was some emergency or danger or loss that may be caused to the right involved in the suit
4. Appointment should not deprive the defendant : That an order appointing a receiver shall not be
made if it has the effect of depriving a defendant of do facto possession
5. Bona fide intention : That, the Court should always look into the conduct of the parties who seek
for the appointment of a receiver.

Krishnaswamy Chetty v. C. Thangavelu Chetty

In this case, the court had enunciated five principles, which have been described as the 'panch
sadaachar', which should be borne in mind by the Courts while exercising equity jurisdiction in
appointing receivers.
The aforementioned are the five principles recognised in this case.

• Rule 1 – Appointment of receivers

1. Where it appears to the Court to be just and convenient, the Court may by order-
(a) appoint a receiver of any property, whether before or after, decree;
(b) remove any person from the possession or custody of the property;
(c) commit the same to the possession, custody or management or the receiver; and
(d) confer upon the receiver all such powers, as to:
- bringing and defending suits and
- for the realization, management, protection, preservation and improvement of the property,
- the collection of the rents and profits
- execution of documents
- any powers as the Court thinks fit.

2. Nothing in this rule shall authorise the Court to remove from the possession or custody of property
any person whom any party to the suit has not a present right so to remove.
 S. B. Industries v. United Bank of India

• Rule 2 – Remuneration
To be fixed by the court by general or special order

• Rule 3 – Duties
Every receiver shall:
(a) furnish such security (if any), duly to account for what he shall receive in respect of the property
(b) submit his accounts at such periods and in such form as the Court directs;
(c) pay the amount due from him as the Court directs; and
(d) be responsible for any loss occasioned to the property by his wilful default or gross negligence

• Rule 4 – Enforcement of receiver's duties

In case a receiver:
(a) fails to submit his accounts at such periods and in such form as the Court directs, or
(b) fails to pay the amount due from him as the Court directs, or
(c) occasions loss to the property by his wilful default or gross negligence,
the Court may:
- direct his property to be attached and may sell such property,
- may apply the proceeds to make good any amount found to be due from him or any loss occasioned
by him,
- and shall pay the balance (if any) to the receiver.

• Rule 5 – When Collector may be appointed receiver

- Where the property is land paying revenue to the Government,
- or land of which the revenue has been assigned or redeemed,
- and the interests of those concerned will be promoted by the management of the Collector,
- the Court may, with the consent of the Collector, appoint him to be receiver of such property
UNIT – 5
Execution
- The term "execution" has not been defined in the Code. In its widest sense, the expression
"execution" signifies the enforcement or giving effect to a judgment or order of a court of
justice.
- Stated simply, "execution" means the process for enforcing or giving effect to the judgment of
the Court.
- In other words, execution is the enforcement of decrees and orders by the process of the court,
so as to enable the decree holder to realize the fruits of the decree.
- The execution is complete when the judgment creditor or decree holder gets money or other
thing awarded to him by the judgment, decree or order
- All proceedings in execution are commenced by an application for execution[E.P]
- Except in the case of a money decree, every application for execution shall be in writing, signed
and verified by the applicant or by some other person acquainted with the facts of the case. It
shall contain the necessary particulars like the number of the suit, the names of the parties, the
date of the decree, the amount of the decree, etc [Rule 11]
- Application is filed by the decree-holder/transferee/legal representatives [S. 49, O.21 R. 16]
- Against the
a) Judgement Debtor
b) legal representative – S. 50- legal rep if JD dies
c) Representative of or the person claiming under the judgment debtor. – S. 146
d) Surety of the judgment debtor – S. 145
- Rule 22 provides for the issue of show cause notices to persons against whom execution is
applied for in certain cases. As a general rule, the law does not require any notice to be issued
for execution.
- In the following cases, however, such notice must be issued: - O. 21 R. 22
(i) Where an application is made two years after the date of the decree; or more than two
years after the date of the last order made on any previous application for execution; or
(ii) Where an application is made against the legal representative of the judgment debtor;
or
(iii) Where an application is made for the execution of a decree passed by a court of
reciprocating territory; or
(iv) Where an application is made against the assignee or receiver of insolvent judgment
debtor; or
 (v) Where the decree is for payment of money and the execution is sought against the
person of the judgment debtor
- Sec.38- Decree may be executed by the Court which passed it or by the court to which the
it is sent for execution
- Sec.37 court which passed the decree is defined in the following manner
i. The court of first instance which actually passed the decree;
ii. The court of first instance in case of appellate decree
iii. Where the court of first instance has ceased to exist, the court which would have jurisdiction
to try the suit at the time of execution
iv. Where the court of first instance has ceased to have jurisdiction to execute the decree, the
court which at the time of execution would have had jurisdiction to try the suit
- Sec.39 transfer of decree by the Court which has passed it and lays down conditions for
it.
i. The JD actually or voluntarily resides or carries on business/personally works for gain
within local limits of jurisdiction of the other Court
ii. JD does not have sufficient property to satisfy the decree within local limits of jurisdiction
of the Court which passed by decree , but has property within local limits of other court
iii. Decree directing sale/delivery of immovable property situated outside the local limits of
jurisdiction of other court
iv. Other reasons to be recorded in writing
-
- Power of the transferee court: S. 42
i. Punish for disobeying or obstructing execution
ii. Send decree for execution to another court
iii. No powers in matter that can be determined by court which passed the decree only
- Jai Narain v. Kedarnath
The transferee court can decide when executing a decree for specific performance,
whether the defendant is in a position to perform his part
Section 42 of the Code expressly gives the Court executing a decree sent to it the same
powers in executing such decree as if it had been passed by itself.
- Amendment Act 2002 the Court passing the decree has no power to execute the decree against
a person or property outside the local limits of its territorial jurisdiction – S. 39(4)
- S. 40 - Where a decree is sent for execution in another State, it shall be sent to such Court and
executed in such manner as may be prescribed by rules in force in that State.
 • Salem Bar Association Case
- Indian Courts has power to execute decree passed by :
i. Indian courts to which the provisions of the Code do not apply – S. 43
ii. The courts situate outside India which are established by the authority of the Central
Government – S.43
iii. Revenue courts in India to which the provisions of the Code do not apply. – S. 44
iv. Superior Courts of any reciprocating territory S. 44A
- Raj Rajendra Sardar Moloji Nar Singh v Shankar Saran
appeal against Allahabad High Court holding that execution of decree passed by District
Judge Gwalior in favour of appellant is not executable at Allahabad - Gwalior Court could
not send decree under Section 39 which had been passed by it when not governed by Indian
Code - Court opined that Gwalior Court which made Order of transfer when it was
governed by Indian Code was a different Court from what it was at the time it passed a
decree when functioning under different Code of Civil Procedure - decree of Gwalior Court
sought to be executed was decree of foreign Court which did not change its nationality in
spite of subsequent changes or amendment in Code - Gwalior Court could not transfer
decree for execution to Court at Allahabad under Sections 38 and 39.
Section 43 of the Code provided for the execution of decrees passed by the Civil Courts in
places where the Indian Code did not extend. The decree of the Gwalior Court did not fall
within this section as it stood before the Constitution.
- Kishen Das v Indo Carnatic Bank Ltd
Executability of a decree passed by the Madras High Court in 1940 by the City Civil Court
Hyderabad on the ground of its be a foreign decree was called in question
The Respondent went into liquidation and a liquidator was appointed by the original side
of Madras High Court. The liquidator filed an application under Sec. 191 of the Indian
Companies Act for the recovery of a sum of Rs. 1375 from the Appellant who was a subject
of H.E.H the Nizam and a resident of Hyderabad on account of unpaid calls and the Court
passed on ex-parte decree on 15-8-1940 against the appellant. The liquidator field an
execution petition in that Court praying for a transfer of the decree to the City Civil Court
Hyderabad which was ordered on 15-3-1951 when. the Hyderabad Civil Procedure Code
was in force in the Hyderabad Stat under which the decree of the Madras High Court would
be a foreign decree and the only way in which the liquidator could recover the decreetal
amount was by filing a suit on that decree.
 No doubt the Madras High Court could not on that date i.e. 15-3-1951 pass an order
directing the transfer of the decree as it was to a Court which was not governed by the
Indian Civil Procedure Code (hereinafter called the Code) nor on that date were there any
reciprocal arrangements for executing those decrees in the Hyderabad State.
- When a decree is sent for execution to another Court; [O. 21 R. 6]
Copy of the decree
Certificate of non satisfaction/part satisfaction
Copy of an order of execution
- An executing court cannot go beyond the decree

R.10 – Application for execution

- DH,LR, Representative can apply for execution, Person claiming under decree holder,
transferee[by assignment, person having any special interest
- To the court which passes the decree/ officer of court/ court to which it is send for execution.
- Execution may be taken against
- JD, LR, Representative, Suerty
- Application may be submitted to the Court which passed the decree
- When the territorial jurisdiction is passed from the court which passed the decree , then to the
transferee court

Contents of application: [R.11]

- Every application shall be in writing, signed and verified by the applicant
- except in money suit [ oral application allowed]
- Number of the suit, name of parties, date of decree, amount of decree
- Application for execution in form.6 ,appendix E [first schedule]

Procedure to be followed on receiving application

a) Admission
- R.17 –admission application has to comply with the requirement of R.11 to 14.
- Admit and register the application
- Amendment Act 1976 inserted R.105 to 106 for hearing of application
b) Hearing of Application
- R.105-fixing date for hearing
- R.106 if dismissed/ex-parte order is passed court can set aside the order-order rejecting
application under R.106 is appealable
 - An order rejecting an application under Rule 106(1) is appealable. [O. 43 R. 1(ja)]
c) Notice of Execution
- R.22-notice of execution
- Show-cause notice to persons against execution
- Notice is mandatory if
i. application is made after 2 yrs from the date of last order made by court
ii. Against the LR
iii. Against the assignee or receiver of an insolvent
iv. Against a surety
v. Application is made when decree is passed by a Court of reciprocating territory
vi. Decree is for payment of money
vii. When application is made by transferee
- Omission to give notice can make the proceedings null and void
d) Procedure after Notice – Rule 23
- If person to whom notice is issued did not appear then Court can issue process for execution of
decree[R.23]
- Period of limitation is 12yrs [except for a decree granting mandatory injunction].
- Mandatory injunction.[3yrs]
- Amendment Act 1976-Res judicata -provision apply to execute.
- Before decision can operate as res judicata, the execution application must have heard, &
finally decided by the Court.
- But before an earlier decision can operate as res judicata, the execution application must have
been heard and finally decided by the Court.
Stay of Execution
- R.26- if sufficient reasons be shown, on JD furnishing the security.
- Stay for a reasonable time.
- Court cannot invoke inherent powers to grant stay.
- JD must obtain security.
- R.29- stay of execution of pending suit
- Rule 29 provides for stay of execution pending suit between the decree holder and the judgment
debtor. It enacts that where a suit by the judgment debtor is pending in a court against the decree
holder such court may, on the judgment debtor furnishing security or otherwise as it thinks fit,
stay execution of the decree until the disposal of such suit.
 - Court will stay the execution ,-for avoiding multiplicity of suit & enable JD & DH to adjust
their claims

Modes of Execution
- Decree holder has the right to chose the mode of execution
- Section 51 of the Code is very wide and permits execution of decrees by different modes. It
gives an option to the decreeholder of enforcing a decree by several modes available under the
Code. As a general rule, therefore, a court passing a decree against the defendant should not
ordinarily place any limitation as to the mode in which it is to be executed
- Shyam Singh vs. Collector, District Hamirpur, U.P. and Ors
Commercial - sale of land - Debt law, Sections 10B, 11 and 11B of Uttar Pradesh
Agricultural Credit Act, 1973, Sections 11A and 279 of Uttar Pradesh Zamindari
Abolition and Land Reforms Act, 1950 and Section 51 and Order 21 Rule 30 of CPC,
1908 - whether simultaneous proceedings be permitted against debtor for realization of
same amount - creditors proceeded against immovable property of respondents without
ascertaining recoveries from sale of movable property - without ascertaining amount of
dues realized creditors not entitled to proceed against different movable or immovable
properties of debtor under different provisions.
Discretion is with the court to order simultaneous execution and that discretion must be
exercised judicially The court can refuse simultaneous execution by allowing the decree
holder to avail of only one mode of execution at a time

1. Delivery of property
• Movable [sec.51,r.31]
• By seizure & delivery, detention of JD, attachment and sale, attachment and detention
• Immovable propety-R.35 & 36
Where the decree is for immovable property in the possession of the judgment debtor
or in the possession of the person bound by the decree, it can be executed by removing
the judgment debtor or any person bound by the decree and by delivering possession
thereof to the decree holder. If the decree holder satisfactorily establishes identity of
decretal property, the decree must be executed by the court by putting the decree holder
in possession thereof [Rule 35]
Where the immovable property is in possession of a tenant or other person entitled to
occupy the same and not bound by the decree, the delivery of the property should be
 made by affixing a copy of the warrant at some conspicuous place on the property and
proclaiming to the occupant by beat of drum or other customary mode at some
convenient place the substance of the decree regarding the property This is known as
symbolical or formal possession [Rule 36]

2. Attachment and sale of property sec.51(b)

• The words attachment and sale in clause (b) of Section 51 are to be read disjunctively.
Therefore, the attachment of the property is not a condition precedent
• Attach the property and sell the property-issuing proclamation of sale through notice
including :
Time and place of sale.
Details of property or part thereof to be sold.
Revenue if any attached to property.
Encumbrance to which the property is liable.
Amount to be recovered under the decree.
Such other particulars which court considers material.

3. Arrest and detention.[sec.51(c)]

- It is for the decree holder to decide in which of the several modes he will execute his decree.
One of such modes of executing a decree is arrest and detention in civil prison of the judgment
debtor. However, clause (c) should be read subject to the proviso to Section 51.

- The proviso lays down that where the decree is for payment of money, execution by

detention in civil prison should not be ordered unless, after giving the judgment debtor an
opportunity of showing cause why he should not be so detained, the court for reasons to be
recorded in writing is satisfied that -
a. That the judgment debtor with the object of obstructing or delaying the execution of the
decree
i. Is likely to abscond or leave the local limits of the jurisdiction of the court; or
ii. Has, after the institution of the suit in which the decree was passed, dishonestly
transferred, concealed or removed any part of his property, or committed any other
act of bad faith in relation to his property; or
b. That the judgment debtor has, or has had since the date of the decree, the means to pay
the amount of the decree or some substantial part thereof and refuses or neglects or has
refused or neglected to pay the same; or
 c. that the decree is for a sum which the judgment debtor was bound in a fiduciary capacity
to account for
- These provisions are mandatory in nature and must be strictly complied with. They are not
punitive in character.
- The object of detention of a judgment debtor in a civil prison is twofold. On the one hand, it
enables the decree holder to realise the fruits of the decree passed in his favour; while on the
other hand, it protects the judgment debtor who is not in a position to pay the dues for reasons
beyond his control or is unable to pay.

4. Appointment of receiver[sec.51(d)]
- Execution by appointment of a receiver is known as equitable execution and is entirely at the
discretion of the court
- The appointment of a receiver in execution proceedings is considered to be an exceptional
remedy and a very strong case must be made out in support of it.44 The decree holder before
resorting to this mode must show that there is no effective remedy for obtaining relief by the
usual statutory modes of execution.
- The court also must be satisfied that the appointment of a receiver is likely to benefit both the
decree holder and the judgment debtor rather than a sale of the attached property
- It has also to be satisfied that the decree is likely to be realised within a reasonable time from
the attached properties so that the judgment debtor may not be burdened with property while
he is deprived of the enjoyment of it4

5. Partition[sec.54]
- Where a decree is for partition or separate possession of a share of an undivided estate assessed
to the payment of revenue to the Government, the partition or separation of the share should be
made by the Collector.
- The object underlying this provision is twofold: firstly, the revenue authorities are more
conversant and better qualified to deal with such matters than the civil court54, and secondly,
the interests of the Government with regard to the revenue paying estate would be better
safeguarded by the Collector than by the court.

6. Cross decree
- if amount is equal then no payment –cross payment is a set off
- Rules 18 to 20 of Order 21 deal with setoff of cross decrees and cross claims
(a) Cross decrees: Rules 18 and 20
 • Doctrine explained.—Rule 18 enacts that cross decrees for the payment of money shall be
set off against each other. If the amounts under the two decrees are equal then both the
decrees shall satisfy each other and full satisfaction will be recorded and no payment is
required to be made by any party and no execution will be allowed to be taken out
• Over and above ordinary suits, the provisions of Rules 18- 20 also apply to mortgage suits.
The court has also power to allow setoff to cases not strictly covered by Rule 18
• Rule 19 provides for a set off in the case of cross claims in the same decree. It lays down
that if the two sums in cross claims under the same decree are equal, satisfaction of each
shall be entered in the decree and no execution shall be allowed to be taken out. If the two
sums are unequal, the party entitled to the larger sum may take out execution for the
balance

7. Payment of money [R. 1,2, 30]

- Payable out of /court/depositing in the executing Court/giving as per the direction of the court[
civil prison]
- A decree for payment of money (simpliciter or as an alternative to some other relief) may be
executed by attachment and sale of property of the judgment debtor or by his detention in civil
prison or by both
a) Payment in Court
Where the payment has to be made in court, it may be made either by depositing the decretal
amount in court or by a postal money order or through a bank.
If the court is closed on the last day for making such payment, the maxim les non cogit ad
impossibilia (the law does not compel a man to do that which he cannot possibly perform)
will apply and the payment can be made on the day the court reopens
b) Payment out of Court
A payment to the decree holder out of court also discharges the decree. Such payment may
be made by postal money order or through a bank or by any other mode wherein payment
is evident in writing
When the payment is made out of court, the following particulars must be accurately stated:
a. The number of the original suit
b. The names of the parties
c. How the money remitted is to be adjusted, that is to say, whether it is towards the
principal, interest or costs;
d. The number of the execution case of the court ; and
 e. The name and address of the payer.
A payment made in accordance with Rule 1 of Order 21 discharges the judgment debtor
from decretal dues. On the amount being paid, interest shall cease from the date of payment
Where the decreeholder refuses to accept the postal money order or payment through a bank,
interest shall cease to run from the date of such refusal
No payment or adjustment can be recorded by the court at the instance of the judgment
debtor unless such payment has been made either in the court or out of court as per Rule 1;
Or such payment or adjustment is proved by documentary evidence, or such payment or
adjustment is admitted by or on behalf of the decree holder in his reply to the notice by the
court or before the court.
A payment or adjustment, which has not been certified or recorded as aforesaid, shall not be
recognized by any Court executing the decree.
A payment made in accordance with the provisions of the Code operates as a valid discharge
of the decree against the judgment debtor

8. Specific performance of contract R.32

- Where a decree is for specific performance of a contract, and the judgment debtor wilfully
disobeys it, it may be executed by the attachment of his property, or for an injunction- By his
detention in Civil Prison.
- A decree for specific performance creates mutual rights and liabilities in favour of both the
parties. The defendant is as much entitled to enforce the decree as the plaintiff. Where the
decree does not specify the time for performance of the contract, it should be performed within
reasonable time.
- Even if the decree for specific performance does not provide for delivery of possession, the
court can deliver possession as incidental to the execution of the sale deed
- A party seeking to execute the decree for specific performance must fulfil the obligations
imposed upon him by the decree. If he deposits considerations in the court, he is entitled to
have the sale deed executed.
- Where the party against whom a decree for specific performance has been passed is a
Corporation, the decree may be enforced by attachment of the property of the Corporation or,
with the leave of the court, by detention in civil prison of the directors or other principal officers
thereof, or by both attachment and detention
9. Injunction [R 32(1)]
- Where a decree is for injunction, and the judgment debtor disobeys it, it may be executed by
attachment of his property, or his detention in civil prison, or by both. The provision applies to
prohibitory as well as mandatory injunctions.
- Where the party against whom a decree for an injunction has been passed is a Corporation, the
decree may be enforced by attachment of the property of the Corporation or, with the leave of
the court, by detention in civil prison of the directors or other principal officers thereof, or by
both, attachment and detention

10. Restitution of conjugal rights [R 32-33]

- if decree passed and disobeyed then attachment of property
- A decree for restitution of conjugal rights cannot be executed by sending the person (husband
or wife, as the case may be) to civil prison and the only permissible mode of executing the
decree is attachment of the property of the judgment debtor.
- Where the parents do not comply with the decree for restitution of conjugal rights, they can be
dealt with under this provision.9

11. Execution of document[R.34]

- Where a decree is for the execution of a document and the judgment debtor neglects or refuses
to obey the same, the court shall, after giving an opportunity to the decree holder as well as to
the judgment debtor to prepare a draft of the document in accordance with the terms of the
decree, execute a document in the prescribed form.
- It shall have the same effect as the execution of a document by the party ordered to execute the
same.
- Order under this provision is appealable

12. Attachment of rent, mesne profit- property of JD attached [R.42]

- Where a decree is for unascertained rent, or mesne profits, or any other matter, the court may
order attachment of the property of the judgment debtor before the amount due from him is
ascertained. Such attachment, however, cannot affect any interest created in the property prior
to the attachment.
- The expression "any other matter" should be construed ejusdem generic.111 It covers matters
similar to rent and mesne profits
 13. Endorsement of NI
- Where a decree is for the endorsement of a negotiable instrument and the judgment debtor
neglects or refuses to obey the decree, the court shall, after giving an opportunity to the decree
holder as well as to the judgment debtor to prepare a draft of endorsement in accordance with
the terms of the decree, endorse a negotiable instrument in the prescribed form.
- Order under this provision is appealable

Arrest & Detention [R. 30]

- Who cannot be arrested?
(a) Women [S. 56]
(b) Judicial officers [S. 135(1)]
(c) Members of legislative bodies [S. 135 A]
(d) Any person or class of persons, whose arrest, according to the State Government, might be
attended with danger or inconvenience to the public [S. 55(2)]
(e) The parties, their pleaders, mukhtars, revenue agents and recognised agents and their
witnesses acting in obedience to a summons, while going to, or attending or returning from
the court [S. 135(2)]
(f) JD, where the amount does not exceed Rs.2000/-
- Show cause notice will be issued for showing the reason why he should not be arrested
- A judgment debtor may be arrested at any time and on any day in execution of a decree. After
his arrest, he must be brought before the court as soon as practicable. For the purpose of making
arrest, no dwelling house may be entered after sunset or before sunrise. Further, no outer door
of a dwelling house may be broken open unless such dwelling house is in the occupancy of the
JD and he refuses or access thereto. [S. 55]
- Where the judgment debtor pays the decretal amount and costs of arrest to the officer, he should
be released at once
- In an application for the arrest and detention of the judgment debtor in prison, the decree holder
must state or must file an affidavit stating the grounds on which arrest is sought.19 No order of
detention can be passed where the total amount of the decree does not exceed two thousand
rupees. The burden is very heavy on the decree holder to prove that the circumstances specified
in the Proviso to Section 51 exist.
- Decree-holder to apply – affidavit – grounds for arrest (Rule 11-A)
- Court issue show cause notice to judgment-debtor (Rule 37) – on hearing judgment-debtor,
may reject application for arrest (Rule 40) – non-appearance of judgment-debtor, court issue
warrant (Rule 38) - Decree-holder pay subsistence allowance (Rule 39)
- Where the judgment debtor appears before the court in obedience to such notice, and if the
court is satisfied that he is unable to pay the decretal amount, the court may reject the
application for arrest. On the other hand, where the judgment debtor appears but fails to show
cause to the satisfaction of the court against the arrest and detention, the court may, subject to
the provisions of the Code, make an order of detention. [Rule 40(1)]
- Provided that in order to give the judgment-debtor an opportunity of satisfying the decree, the
Court may, before making the order of detention, leave the judgment-debtor in the custody of
an officer of the Court for a specified period not exceeding fifteen days or release him on his
furnishing security to the satisfaction of the Court for his appearance at the expiration of the
specified period if the decree be not sooner satisfied [Rule 40(3)]
- Mere omission to pay, however, cannot result in arrest or detention of the judgment debtor.
Before ordering detention, the court must be satisfied that there was an element of mala fide or
bad faith, "not mere omission to pay but an attitude of refusal on demand verging on disowning
of the obligation under the decree
- No judgment-debtor shall be arrested in execution of a decree unless and until the decree-holder
pays into Court such sum as the Judge thinks sufficient for the subsistence of the judgment-
debtor from the time of his arrest until he can be brought before the Court. [Rule 39(1)]
- A judgment debtor may be released in the following cases: [S. 58 & 59]
a. On the amount mentioned in the warrant being paid; or
b. On the decree against him being otherwise fully satisfied; or
c. On the request of the decree holder; or
d. On the omission by the decree holder to pay subsistence allowance; (such release,
however, does not discharge the judgment debtor from his debt, but he cannot be
rearrested on the same ground)
e. On the ground of illness
- Normally, a judgment debtor once released, cannot be rearrested in execution of the same
decree
- The court is required to record reasons for its satisfaction for detention of the judgmentdebtor.
Recording of reasons is mandatory.
- The period of detention shall be for 3 months-exceeds Rs.5000/- & if it is between Rs2000-
5000 then for 6 weeks [S. 58]
 Attachment
- The primary object of attachment of property is to give notice to the judgment debtor not to
alienate the property to anyone as also to the general public not to purchase or in any other
manner deal with the property of the judgment debtor attached in execution proceedings. At
the same time, it protects a judgment debtor by granting exemption to certain properties from
attachment and sale
- The words "attachment" and "sale" are to be read disjunctively and not conjunctively
- In attachment of property- court will hear claims and objections- adjudicate on these claims [
right/ title / interest] before taking decision
- Sections 60 CPC to 64 CPC, Rules 41-59 of Order 21.
- Sec.60 [ property to be attached and property exempted from attachment]
- Land, House or other building, goods, money and bank notes, cheques or bill of exchange,
hundies, promissory notes, Government securities, bonds etc, debts, shares in a corporation and
all other saleable properties (movable or immovable) belonging to the judgment debtor or by
another person in trust for him.

Property Exempted from attachment [Proviso to S. 60(1)]

• Necessary wearing apparel/cooking vessels beddings/personal ornaments linked with religious
usage
• Tools of artisan/implements of husbandry, cattle, seed grains
• Houses/other buildings of agriculturists/labourer/domestic servant[ necessary for their
enjoyment
• Books of account;
• Stipends and gratuities allowed to pensioner;
• Wages and salaries of labourers and domestic servants; pay and allowance of air/naval/army
mem; allowances declared by any Indian law to be exempt;
• Compulsory deposits and insurance premium; interest of a lessee of a residential buildings;
• Any movable property which is exempted from sale of recovery of arrears of land revenue.
Modes of Attachment
- How attachment NOT to be done: (Section 62) -no entry in house after sunset, before sunrise – no
breaking down the front door unless judgment-debtor refuses entry – notice and reasonable time to
pardanashin woman to withdraw
S.No Type of Property Mode of Attachment Rule
Movable property (other than agricultural By actual seizure thereof But if such property
produce) in possession of the judgment- is perishable, the expense of keeping it is
1 debtor; likely to exceed its value, it may be sold. 42, 43
 Movable property consisting of livestock,
agricultural implements or other articles
2 which cannot conveniently be attached;
Movable property not in possession of the
3 judgment-debtor;
Negotiable instrument neither deposited in a
4 court nor in the custody of a public officer;
5 Debt not secured by a negotiable instrument;
6 Share in the capital of a corporation;
Share or interest in movable property
belonging to the judgment-debtor and
7 another as co-owners;
Salary or allowance of a public servant or a
8 private employee;
9 Partnership property;
Property in custody of court or public
10 officer;
(i) Decree for payment of money or sale in
enforcement of a mortgage or charge—
a)passed by the court executing the
decree;
b)passed by another court;
11 (ii)Decree other than that mentioned above;"
By leaving the same in the custody of a
respectable person "custodian". 43-A
By an order prohibiting the person in
possession thereof from giving it to the
judgment-debtor: 46(1)(c)
By actual seizure and bringing it into court. 51
By an order prohibiting the creditor from
recovering the debt to the debtor from paying
the debt. 46(1)(a)
By an order prohibiting the person in whose
name the share stands from transferring it or
receiving dividend thereon. 46(1)(b)
By a notice to the judgment-debtor
prohibiting him from transferring or charging
it. 47
By an order that the amount shall (subject to
the provisions of Section 60), be withheld
from such salary or allowances either in one 48 &
payment or by monthly installments. 48-A
By making an order:
a) charging the interest of the partner in the
partnership property;
b) appointing a receiver of the share of the
partner in profits;
c) directing accounts and inquiries; and
d) ordering sale of such interests 49
By notice to such court or officer, requesting
that such property, and any interest or
dividend thereon, may be held subject to the
order of the court) 52
By an order of such court. k
By issuing a notice to such court requesting it k-
to stay execution thereof] l 53(1)(a)
By issuing a notice (a) to the decree-holder l-
prohibiting him from transferring or charging 53(1)(b)
it in any way; (b) to the executing court from m-
executing it until such notice is cancelled. m 53(4)
 By (i) affixing a copy of the warrant (a) in
case of growing crop, on land on which such
crop has grown; and (b) in case of ready
"crop, the place at which it is lying; and (ii)
also by affixing a copy on the house in which
the judgment-debtor ordinarily resides, carries
on business or personally works for gain, or
last resided, carried on business or personally
worked for gain. n
Where application is for the attachment of
growing crop, it shall specify the time at
which is likely to be harvested. o
(The object is to enable the court to make
necessary arrangements for the custody of the n- 44
12 Agricultural produce; crop.) P o-45
By an order prohibiting the judgment-debtor
from transferring or charging it in any manner
and all persons from taking any benefit from
13 Immovable property; such transfer or charge. q 54

- Property attached for execution of decrees of several courts: Section 63

Precept
- Precept[sec.46]-command or order given by the Court which passed the decree to court which is
competent to execute the decree to attach any property belonging to the JD.
- The principal object of attachment by precept is to enable the decree holder to obtain an interim
attachment of the property of the judgment debtor situate within the jurisdiction of another court
where it is apprehended that the decree holder may otherwise be deprived of the fruits of the decree

Garnishee Order
- Order 21 Rules 46A-46I
- Garnishee proceeding is a proceeding by which the decree holder seeks to reach money or property
of the judgment debtor in the hands of a third party (debtor of judgment debtor). By this process,
an executing court may order a third party to pay to the judgment creditor (decree holder) the debt
from him to the judgment debtor. The payment made by the garnishee pursuant to the order passed
by the executing court is a valid discharge to him against his decree holder.
- "Garnishee" means a judgment debtor's debtor. He is a person who is liable to pay a debt to a
judgment debtor or to deliver any movable property to him. "Garnisher" (Garnishor) is a judgment
creditor (decree holder) who initiates garnishee proceedings to reach judgment debtors money or
property held or possessed by third party (garnishee).
- The Court may, in the case of a debt (other than a debt secured by a mortgage or charge) which
has been attached under Rule 46, upon the application of the attaching creditor, issue a notice to
 the garnishee liable to pay such debt, calling upon him either to pay into court the debt due from
him to the judgment debtor or so much thereof as may be sufficient to satisfy the decree and costs
of execution, or to appear and show cause why he should not do so.
- Rule 46A requires a notice to be issued to a garnishee before a garnishee order is passed against
him.
- The payment made by the garnishee into the court pursuant to such notice shall be treated as a
valid discharge to him as against the judgment debtor. The Court may direct that such amount may
be paid to the decree holder towards the satisfaction of the decree and costs of the execution [R.
46E,F & G]
- Where neither the garnishee makes the payment into the court, as ordered, nor appears and shows
any cause in answer to the notice, the court may order the garnishee to comply with such notice
as if such order were a decree against him [R. 46B &H]
- Orders passed in garnishee proceedings are appealable as "decrees" – R. 46H
- Costs of garnishee proceedings are at the discretion of the court. – R. 46G
- Mackinnon Mackenzie & Co. (P) Ltd. v. Anil Kumar Sen
Garnishee order - appellant contended that his client had totally denied claim of second
respondent and garnishee order ought not to have been made by Trial Court - procedural
advantage of garnishee proceeding ought not to be made available to decree-holder so
as to deny to garnishee opportunity of contesting claim unless Court satisfied that there
was no substance in dispute or objection raised by garnishee - garnishee raised objection
to claim which had been denied and disputed - cannot be held dispute without substance
- matter remanded to Trial Court to be determined upon trial on evidence
Where the court finds that there is a bona fide dispute against the claim and the dispute
is not false or frivolous, it should not take action under this rule

DETERMINATION OF ATTACHMENT: RULES 55-58

- An attachment under the Code will be determined in the following circumstances:
(i) Where the decretal amount is paid or the decree is otherwise satisfied;
(ii) Where the decree is reversed, or is set aside;
(iii) Where the court upholds objection against the attachment and makes an order releasing
the property
(iv) Where after the attachment the application for execution is dismissed;
(v) Where the attaching creditor withdraws attachment
(vi) Where the decree holder fails to do what he is bound to do under the decree;
 (vii) Where the attachment is ordered before judgment and the defendant furnishes the
necessary security;
(viii) Where there is agreement or compromise between the parties;
(ix) Where the attaching creditor abandons the attachment.

Decree of Maintenance
- (1/3 portion of salary is exempted)
- In any other decree (First Rs. 1000/- + 2/3 of the rest of salary is exempted)
- A mere right to sue for damages, any right of personal service, a right of future maintenance,
an expectancy of succession by survivorship.
- Sec.61- partial exemption of agriculture produces by order of state Govt.
- Sec.62 seizure of property in dwelling house- entry not allowed- after sunset and sunrise/ no
outdoor be broken unless JD refuses to open- if a room in occupancy of women who does not
appear in public- notice to withdraw
UNIT 6- SPECIAL SUITS
Sections 79 to 93 of the CPC govern special suits and Orders 27 to 37 of CPC deal with the procedure
involved in special suits.
I. Suits by or against Government or Public Officers (S.79-82)
S.79- Suits by or against Government
⎯ If suit filed against the Govt., it is the defendant. If filed by the Govt., it is the plaintiff.
⎯ If filed by or against the Central Govt., the party will be known as Union of India.
⎯ If filed by or against the a State Govt., the party will be known as State of [..].
⎯ Rajasthan v Vidyawati, the Hon’ble Supreme Court observed that in case if any wrongs are
committed by the government employees during their employment, then the government
itself will be liable for the acts committed by its employees. However, such acts must not
include the sovereign powers of the government.

S.80- Notice
⎯ A 2-month notice needs to be given to the Govt. or public Authority before the filing any
suit against them. No suit against Government or Public Officer in respect of any act done
in his official capacity until the expiry of the 2 month period.

⎯ Bihari Choudhary v State of Bihar AIR 1984 SC 1043:

Facts: Respondent no 1 was the state government. Under section 80 of CPC, plaintiff prior
to the institution issued notice to the respondent but did not wait for the expiry of statutory
period of 2 months and instituted the suit. State contended that the suit was not maintainable
as there was no proper notice under section 80 of CPC. The trial court dismissed the suit.
First appellate court confirmed the order. High court dismissed the second appeal preferred
by the appellants.

⎯ Held: The suit against the government or any public officer against whom there is a
requirement of prior notice under section 80 of CPC, it cannot be valid to institute until the
expiry of the statutory period of 2 months after the notice is delivered to the concerned
authorities and if the suit if instituted before the said period then it has to be dismissed as it
is not maintainable.

When a suit is filed for obtaining immediate relief either against the government or any
public officer working in its official capacity, then without serving notice on the opposite
party, such suit shall be filed after taking the permission of the court.

⎯ Exception to Notice Requirement: Urgent relief with leave of Court, Waiver of government

⎯ Harish Chandra Pvt Ltd v Corp Bank - Suit for perpetual injunction restraining bank from
encashing Bank Guarantee - pltf could not send 2 months notice because the bank could
encash guarantee even before the 2 month period.
 No such suit shall be dismissed merely for the reason of any error or defect in the notice as
long as name, description and the residence of the plaintiff, along with the cause of action
and relief claimed has been given to the appropriate authority.

⎯ Contents of notice: name, description, place of residence of person giving notice; statement
of cause of action, and relief claimed. Defect in content of notice – no dismissal of suit.

⎯ Ghanshyam Dass v Dominion of India AIR 1984 SC 1004:

As far as possible, no proceedings in the court of law should be allowed to be defeated on
mere technicalities. The CPC shall be interpreted so as to advance justice, not defeat it.

⎯ State of Maharashtra v Chander Kant AIR 1977 SC 148:

Section 80 of the Code of Civil Procedure therefore is attracted when any suit is filed
against a Public Officer in respect of any act pur- porting to be done by such Public Officer
in his official capacity.
The language of section 80 of the Code of Civil Proce- dure is that a notice is to be given
against not only the Government but also against the Public Officer in respect of any act
purpoting to be done in his official capacity. The Registrar is a Public
Officer. The order is an act purport- ing to be done in his official capacity.

S.81- Exemption from arrest and personal appearance

⎯ When a suit is filed against a public office due to his conduct in his official capacity, then
such public officer shall neither be arrested nor will his property be attached. In case the
court accepts that it is impossible for the public officer to appear before the court, he shall
be excluded from presenting himself from the court.

⎯ Coal Mines PF Commissioner v Ramesh Chander Jha- Suit filed against officer
temporarily placed with PF Board - The lower court had erred in their judgement which
held that such person is not a Public Officer - Though temporary, he is appointed by
government - notice required.

⎯ (Notice mandatory even if such an act done within course of employment / while
discharging duty happens to be mala fide or for personal gain) -- Takwani on the other
hand says (Chhaganlal v Collector, Kaira)- Act should be bona fide and must have
minimum nexus with the duty of officer.

S.82- Execution of Decree

⎯ In a suit by or against the Government or by or against a public officer, if a decree is passed
against the UOI, State Govt. or Public Officer, an execution shall not be issues in respect
of it unless is has been unsatisfied for 3 months from the date of decree.
⎯ Limitation: notice period (2 months) excluded- 80 CPC r/w S 12 Limitation Act.
II. Suits by/against Foreign State/Rulers/Ambassadors Sections 84 – 87A
Suit by Foreigner:
• S. 87A- Definitions of "foreign State" and "Ruler"
Any state which is outside the boundaries of India but at the same it is recognized by the Central
Government, then such state shall come under the purview of ‘Foreign State’ and whereas the
person acting as the head of the Foreign State, appointed and recognized by the Central
Government, is a Ruler.
• S. 84- When foreign states may sue
May sue in any competent Court. Provided that the object of the suit is to enforce a private
right vested in the Ruler of such State or in any officer of such State in his public capacity. (not
political/territorial rights).
• S. 85- Persons specially appointed by Government to prosecute or defend on behalf of foreign
Rulers.
The government shall appoint specific persons for either prosecution of the foreign rulers or
their defense. Here, the term ‘Government’ ideally refers to the Central Government. Such
appointed persons shall be deemed to be the recognized agents working on behalf of the foreign
rulers.
Suit against foreigner:
• S. 86- Suits against foreign Rulers, Ambassadors and Envoys
Central government grant consent on following conditions:
⎯ Foreign state filed suit against person wanting to file suit or
⎯ Foreign state trades within court’s local jurisdiction or
⎯ Foreign state is in possession of immovable property within court’s local jurisdiction and suit
to be filed in respect of such property or
⎯ Foreign state waived privilege expressly/impliedly

Shanti Prasad Agarwal v Union of India 1991

The Central Government while considering the application under Section 86 of the Code must
decide the application in accordance with the provisions of the section itself and state clearly
and intelligibly its reasons for rejecting the application.

VDS Rostok, Dept of Germany Democratic Republic v N.C. Jutemills Co. Ltd 1994
In the present case, the appellant having been held to be a foreign State within the meaning of
Section 86 and the plaintiff-respondent not having obtained the consent of the Central
Government, as required by Section 86, the suit filed on its behalf was not rightly entertained
by the trial court. The question whether a suit should be entertained, cannot be deferred, till the
stage of the final disposal of the suit, because that will serve neither the interest of the plaintiff
nor of the defendant. The object of Section 86 is to save foreign States from being harassed by
defending suits in which there are hardly any merits. If the foreign State is required to file
written statement and to contest the said suit and only at the stage of final disposal, a verdict is
given whether in the facts and circumstances of the particular case, such foreign State is entitled
to the protection of Section 86 of the Code, the very object and purpose of Section 86 shall be
 frustrated. The bar of Section 86 can be taken at the earliest opportunity and the court concerned
is expected to examine the same.

No arrest in execution of decree against foreign state ruler/ambassador

Mirza Ali Akbar Kashani vs. United Arab Republic and Anr.
A suit was filed against the United Arab Republic and the Ministry of Economy, Supplies,
Importation Department of Republic of Egypt at Cairo, for recovery of damages for a breach
of contract.

The question discussed was whether the consent under Section 86 was required in this case or
not. Having discussed the recognition of sovereign immunity of foreign states by the Indian
Legislature, the court went on to hold that the provision of Section 86 indeed was required to
be followed in this case.

S. 87- Style of foreign Rulers as parties to suits

The ruler of a foreign state can both sue as can be sued, however in the name of their state.
• Limitation: Period to obtain consent of Central government excluded

III. Interpleader Suit – Section 88 Order 35

• An interpleader suit is defined as a suit wherein no dispute is between the parties; namely the
plaintiff and the defendant, but the dispute is actually between the defendants themselves, who
inter-plead against each other.
• One can differentiate between an original suit and an interpleader suit as the former is a dispute
between plaintiff and defendant whereas the latter is between defendants.

Who can file interpleader suits?

In National Insurance Co. Ltd. vs Dhirendra Nath Banerjee And Anr, it was observed that one
can file an interpleader suit in case there exists two or more than two individuals claiming
adversely to one another for some debt, money, movable property, or immovable property,
from a person who does not claim any interest therein expect the charges and costs incurred by
him that person is also ready to pay the same to the rightful claimant.
• Who cannot file?
Order 35, Rule 5 of the CPC, 1908 provides that, neither an agent can sue his principal
(Duraiswami Chettiar v Dindigul Urban Cooperative Bank), nor a tenant can sue his landlord
to compel the principals and landlords to interplead with persons other than persons claiming
through these principals and landlords (S 116, Indian Evidence Act.)

S.88- Where interpleader suit may be instituted.

Condition for filing suit:
⎯ There must be some debt, sum of money or other property movable or immovable in dispute
⎯ Two or more persons must be claiming it adversely to one another
 ⎯ The person from whom such debt, money or property is claimed (in the above example - the
bank) must not be claiming interest therein other than the charges and costs. And they must be
willing to pay / deliver to the rightful claimant.
⎯ There must be no suit pending wherein the rights of rival claimants can be properly adjudicated.
⎯ There must be no Collusion between the plaintiffs and any of the defendants
⎯ As held in case of National Insurance Co. Ltd v. Dhirendra Nath.
Procedure: (Order 35)
⎯ Rule 1: Plaint to state the following
1. Plaintiff has no interest in disputed property
2. Co-defendants making adverse claims severally
3. No collusion between plaintiff & defendants
4. Plaintiff ready & willing to deliver property to rightful owner/court
⎯ Rule 2: Discretionary power given to court.
If a thing is claimed and it is capable of being paid into the court, then, the plaintiff has to
deposit such an amount or thing before the court.
⎯ Rule 3: If any of the defendants sue the plaintiff on the same subject matter, that suit will be
stayed.
⎯ Rule 4: Discretionary powers to court to declare at the first hearing the discharge of the plaintiff
from all liabilities
⎯ Rule 5: The agents, as well as the tenants, won’t be permitted to file an interpleader suit against
their principles or landlords respectively.

IV.Suit by / against Minor/Lunatics – Order 32

Suit by minor/person of unsound mind:
Rule 1, 2, 2A
Rule 1: Every suit by a minor shall be Instituted in his name by a person who in such suit shall be
called the next friend of the minor.
Rule 2: Where suit is instituted without next friend, plaint to be taken off the file if applied for by the
defendant. Notice of this application shall be given to person and the court, and objections can be
made.
When suit filed by minor without next friend/guardian
Keshav Das Tulshan v Jagadish Prasad Tulshan AIR 1973 Cal. 83
Suit by minor without guardian/next friend – decree for/against minor - not null
Court has discretion, depending on facts and circumstances of the case
Rule 2A: Security to be furnished by next friend when so ordered- to discourage vexatious litigation.

Suit against minor/person of unsound mind:

Rule 3:
• When suit instituted against minor/ unsound person
• Court appoints guardian ad litem to defend suit
• Continues through all proceedings including appeal, revision, etc
 • Usually natural / legal guardian - if not both, appointed by court for litigation only - Ad litem
- May appoint any of the court officers for this purpose.
Rule 4:
• Who may be appointed as guardian/ net friend?
• Any person attained age of majority and of sound mind; and
• Has no adverse interest to that of minors; and
• Not opposite party to suit; and
• Consent in writing by such a person willing to act as guardian/ next friend.

Powers and duties of guardian (Rule 5,6,7)

• Cannot receive amount/movable property on behalf of minor under decree or order without
leave of court.
• Cannot enter into compromise/agreement on behalf of minor without leave of court –
• Compromise/agreement by guardian without leave of court – voidable at instance of minor.
• Court grant leave – benefit of minor – order furnishing of security to protect property from
waste, ensure proper application by guardian
• Court dispense security if guardian is manager of Hindu undivided family and decree is
• for property/business of the family or guardian is parent of the minor.
Termination of guardianship (Rules 8-11)
• Retirement
• Removal by court – adverse interest; connection to opposite party; not discharge duty;
• ceases to stay in India; other sufficient justifiable cause
• Retirement/removal/death – stay of proceedings – court appoint another guardian.

Decree Against Minor/ Unsound Mind

Decree against minor without appointment of next friend or guardian - null and void not merely
voidable - Ram Chandra v Man Singh
But a decree passed against minors cannot be declared illegal nor can be set aside merely because the
guardian / next friend had interest in subject matter adverse to that of minors.
If minor prejudiced by adverse interest of guardian/ next friend - Can be set aside on minor attaining
majority.
Minor may obtain appropriate relief for misconduct or gross negligence on the part of his next friend
/ guardian - Ram Chandra v Man Singh

Attainment of majority/Lunatic attaining sanity (Rule 12-14):

continue suit – apply for discharge of guardian – proceed in own name
abandon suit – apply for dismissal – costs to defendant/guardian
apply for dismissal – ground – unreasonable/improper – no costs
if co-plaintiff, apply to strike out name – court dismiss if not necessary party – court make minor
defendant if necessary party
Asharfilal v Koili AIR 1995 SC 1440
V. Suit by/against Partnership Firm – Order 30
• General rule – one of two or more joint promises cannot sue alone – sec 45 Contract Act
• Exception – partner (joint promisees) can sue alone in name of partnership firm – rule 1

• Rule 1: if the partners of the firm are aggrieved by the action of certain persons or if certain
persons are aggrieved by the actions of the partners, the partners can sue or be sued in the name
of the firm. It means that the suit shall be titled in the name of the firm but the partners shall be
the ones liable for the execution of any order of the court.
Mandalsa v Ram Narain AIR 1965 SC 1718
• Rule 2: when the partners of a partnership are the plaintiff and sue the third party, the defendant
in such case can also apply before the court for the details of the partners of the firm at the time
when the cause of is claimed to have arisen by the partners.

The rule provides that the proceedings may be stayed by the court in case the firm or the
partners fail to comply with the requisition.

The suit may not be dismissed if the names of all of the partners is not disclosed and the
implication of such an action shall merely be that the litigation shall be deemed to be against
only the declared names.

Purushottam & Co. v. Manilal AIR 1961 SC 325: the apex court observed that Order XXX of
the code does not apply firms carried on the name of the owner himself such as a sole
proprietorship firm. It applies to situation where firms are carried on the names of other persons
such as partnership.

• Alwar Iron v Union of India

if the list of the declared names contains certain names which are not present in the register of
the firms, the suit is not maintainable

Service of Summons and Notice (Rule 3, 5)

• Rule 3: summons to place of business of firm or one/more partners
⎯ Service on the Partner: The plaintiff may opt to serve the summons issued by the court upon
one or more of the partners of the firm at their place of residence respectively. If the summon
is duly received by even one partner with acknowledgement, it will be deemed to be served
upon the firm and all the partners thereof. If the partner refuses to receive the summon, the
court at its discretion may deem it to be served.
⎯ Service at the Place of Business: The plaintiff may serve the summon upon the firm by sending
it to the place of business from where the firm carries on its business and serving it upon the
person in the management of the firm at that time. The plaintiff should serve the summon upon
the place of business at the time stipulated by the court itself.
⎯ Service to Third Person: In R.D. Khan v. Bombay Iron Syndicate[4], the Bombay High Court
held that in the above two situations when the summon is served to the partners or upon the
firm manager and the partners are out of India at the time of receipt, the receipt of the summon
 by the third person shall be deemed to be complete service as it shall be the duty of the third
party to inform the partners of the firm.
⎯ Service in Case of Dissolution: When the firm has dissolved, i.e. ceased to carry on business
and it is within the knowledge of the plaintiff, then the plaintiff shall serve the summons on the
individual partners of the dissolved firm who were associated with it at the time when the cause
of action arose. The plaintiff shall decide which partners were liable or whom he seeks to make
liable and serve the summons upon them. In P. Sen (Engineering) Pvt. Ltd. v. Delite Builders
• Rule 5: The plaintiff must serve notice right after the summons is served. The object of the
notice is to let the partners of the firm know the capacity in which they have been sued.

Appearance before the Court

• Rule 6: Where persons are sued as partners in the name of their firm, they shall appear
individually in their own names, but all subsequent proceedings shall, nevertheless, continue
in the name of the firm.
• Rule 7: the partners are required to be present in the court at the time of hearing provided they
are sued in their capacity as partners.
If the partners are sued in the capacity of a manager, they are not required to appear before the
court mandatorily,
• Rule 8: Enables a person who is served with summons to appear under protest and deny that
he was a partner at material time and have the issue as to him being a partner tried at trial.
If court holds that he was a partner at the material time, it does not preclude him from denying
the liability of the firm .
If the court holds that he was not a partner and thus not liable, it does not preclude the plaintiff
from serving a summons on the firm and proceed with the suit - Ganesh Trading Co v Moki
Ram
• Gajendra Narain Singh v Johrimal Prahlad AIR 1964 SC 581
Appearance under protest by the persons sued render the service of summons as regards the
defendant firm ineffective. The plaintiff may obtain a fresh summons against the firm and serve
it in the manner prescribed by Order XXX, Rule 3, C.P.C. against another person who is alleged
to be a partner by the plaintiff. A decree against the defendant firm so obtained may with leave
under Order 20, Rule 50(2) be executed against the firm and also against the person who had
been initially served as a partner and who had appeared under protest denying that he was a
partner. The plaintiff, however, is not obliged to obtain a fresh summons; he may request the
Court to adjudicate upon the plea of denial raised by the person served and appearing under
protest. The Court will then proceed to determine the issue raised by that plea, if the Court
finds evidence that the person served was not a partner at the material time, the suit cannot
proceed unless summon is served afresh under Rule 3. If the Court holds that he was a partner,
service on him will be regarded as a good service on the firm and the suit will proceed against
the firm.

Death of partner pendent lite: (Rule 4)

• Suit continue with other partners
 • Legal Representative will not be brought on record if one of the partners is already on record
(Kasturi Bai v Amlok Chand 2001)
Execution of decree against partnership firm:
• If the decree passed is against the firm or all partners- the property of the firm may be attached
/ sold.
• If decree is only against a few partners/ one partner, the property of the form cannot be attached
- Topanmal Chotamal v Gangaram

VI. Suits & Appeals by Indigent Persons – Order 33, 44

Indigent person: (Rule 1)
if he is not possessed of sufficient means (other than property exempt from attachment in
execution of a decree and the subject-matter of the suit) to enable him to pay the fee prescribed
by law for the plaint in such suit, or
where no such fee is prescribed, if he is not entitled to property worth one thousand rupees
other than the property exempt from attachment in execution of a decree, and the subject-matter
of the suit.

• Union Bank of India v Khader International Construction AIR 2001 SC 2277

“If the plaintiff ultimately succeeds in the suit, the court would calculate the amount of court
fee which would have been paid by the plaintiff if he had not been permitted to sue as an
indigent person and that amount would be recoverable by the State from any party ordered
by the decree to pay the same. It is further provided that when the suit is dismissed, then also
the State would take steps to recover the court fee payable by the plaintiff and this court
fee shall be a first charge on the subject- matter of the suit. So, there is only a provision for the
deferred payment of the court fees and this benevolent provision is intended to help the poor
litigants who are unable to pay the requisite court fee to file a suit because of their poverty.”

Procedure to Sue in Forma Pauperis:

• Indigent person to apply for leave of court -
• Rule 2: Contents of Application:
o The particulars required in regard to plaints to suits;
o A schedule of any movable or immovable property belonging to the applicant with the
estimated value thereof; and
o Signature and verification as provided in Order 6 Rules 14 and 15
• The court will issue notice to the opposite party and a government pleader - Rule 6 and 7
• Court will order inquiry/ investigation as to the truth of the applicant’s status - Rule 1A
• If the court finds it satisfactory - Plaint will be admitted and pleader will be assigned - Rule 8
and 9A
• If rejected - Court fees to be paid before admission of Plaint - Rule 5, 15A

Rule 5: Rejection of Application:

1. Where the application is not framed and presented in the prescribed manner; or
2. Where the applicant is not an indigent person; or
 3. Where the applicant has, within two months before the presentation of the application,
disposed of any property fraudulently or in order to get permission to sue as an indigent
person; or
4. Where there is no cause of action; or
5. Where the applicant has entered into an agreement with reference to the subject-matter
of the suit under which another person has obtained interest; or
6. Where the suit appears to be barred by law; or
7. Where any other person has entered into an agreement with the applicant to finance
costs of the litigation.
8. When permission is granted: Rules 8-9A
9. Where an application to sue as a indigent person is granted, it shall be deemed to be a
plaint in the suit and shall proceed in the ordinary manner, except that the plaintiff will
not have to pay court fees or process fees.

Rule 9: Revocation of Permission:

• Where he is in guilty of vexatious or improper conduct in the course of the suit; or
• Where his means are such that he ought not to continue to sue as an indigent person; or
• M.L.Sethi v R.P.Kapur AIR 1972 SC 2379
• Where he has entered into an agreement under which another person has obtained an interest
in the subject-matter of the suit.
• Ebrahim Pathan v Mohiddin Khan AIR 1940 Bom 49

Recovery of Court Fees and Costs: Rule 10 and 11

• Where Indigent Person Succeeds: Rule 10- Court shall calculate amount of court fee and costs
- State govt to recover from judgement debtor.
• Where Indigent Person Fails : Rule 11 - Where suit is dismissed on merits/ technical defects of
pltf - State Government to recover court fees from plaintiff
• Withdrawal of Suit - Plaintiff to pay court fees before withdrawal
• Abatement of Indigent Suit: Rule 11A - Death of indigent pendente lite - state govt to recover
from estate of deceased plaintiff - Muthukumaran v State of TN - Pltf died, his legal
representative substituted - suit dismissed - Legal representative to pay costs out of what he
inherited by deceased.
Appeal: Order 44
• If a person is unable to pay court fees during a memorandum of appeal - he may file an
application to be treated as an indigent person - same procedure as mentioned under order 33
to be followed.
• If a person already made an application to be treated as an indigent in lower court and wants to
appeal, no fresh inquiry will be necessary - he has to file an affidavit saying he continues to be
an indigent person.
VII. Summary Procedure – Order 37
Nature:
A summary suit under order 37 of the Code of Civil Procedure is a legal procedure used for enforcing
a right that takes effect faster than ordinary suits as unlike in ordinary suits the courts do not hear the
defence.
However it does not violate the principles of Audi Alteram Partem, nobody should be condemned
unheard as it is used only in certain limited cases (elaborated below under scope) where the defendant
has no tenable defence, which is a complex question of law and fact and has been elaborately analyzed
subsequently.
Object:
to ensure an expeditious hearing and disposal of the suit
to prevent unreasonable obstruction by the defendant who has no defence or a frivolous and vexatious
defence
to assist expeditious disposal of cases

Conditions:
a. suits on bills or exchange, hundies, promissory notes; or
b. suits to recovery of debt/liquidated amount based on written contract, statute or guarantee

Procedure: rule 2, 3
Rules 2 and 3 provide the procedure of summary suits. Under rule 2 after the summons of the suit has
been issued to the defendant. The defendant is not entitled to defend Summary suit unless he enters an
appearance.
In default of this, the plaintiff will be entitled to an ex parte decree which is on a different footing to
an Ex Parte decree passed in ordinary suits(the differences have been analyzed subsequently).
In the case that the defendant appears, the defendant must apply for leave to defend within ten days
from the date of service of summons upon him and such leave will be granted only if the affidavit filed
by the defendant discloses such facts as may be deemed to entitle him to defend.
The cases where leave to defend should and shouldn’t be granted have been analyzed subsequently.

V.K. Enterprises v Shiva Steels AIR 2010 SC 2885- If the court is satisfied that the defence has raised
a Triable case, leave to defend should not be refused. The object underlying the summary procedure
is to prevent unreasonable obstructions by the Defendant who has no defence and to assist expeditious
disposal of cases.

Decree in summary suit – appealable

Summary suits to Regular suits

defendant to apply for leave of court to defend – defendant has right to defend
summons for appearance & judgement – summons for appearance only
ex-parte decree if defendant fails to appear – ex-parte trial if defendant fails to appear
Difference between Summary Suits and Regular Suits
Summary Suits Regular Suits

Defendant will get a chance to defend himself only if leave to Defendant is entitled to defend
defend is granted the suit as a matter or right

Summary suit can be filed only for two categories of Suits- Ordinary suit (Regular Suit)
(1) Suit upon Bill of Exchange, Hundies, Promissory Notes and can be filed for any purpose, It
is not restricted to any
(2) To Recover debt, Liquidated demand in money payable by the particular category of the suits
defendant on written Contract, and on Guarantee.

Summons will be given for appearance and judgement Summons will be given only
for appearance

ex-parte decree if defendant fails to appear ex-parte trial if defendant fails

to appear

In case of Summary Suits, After decree the Court may, under In ordinary suit (Regular Suit),
special circumstances, set aside the decree, and if necessary stay or the Decree cannot be set aside
set aside execution, and may give leave to the defendant to appear by trial Court except on the
to the summons and to defend the suit, if it seems reasonable to the grounds of review.
court so to do, and on such points as the Court thinks fit

In Summary suit, the defendant must prove his fact Within 10 Days In ordinary Suit (Regular Suit)
Time Limit is 30 Days for
filing a written Statement

VIII. Suits relating to Public Nuisance – Section 91

• Public nuisance –Section 268 IPC- “any act or an illegal omission which causes any common
injury, danger or annoyance to the public or to the people in general who dwell or occupy
property in the vicinity, or which must necessarily cause injury, obstruction, danger or
annoyance to persons who may have occasion to use any public right. A common nuisance is
not excused on the ground that it causes some convenience or advantage.”

Remedies:
⎯ Punishment under IPC – Section 90 IPC
⎯ Summary powers exercised by Magistrates to remove public nuisance (Section 133-143 of
Criminal Procedure Code)
⎯ Suit for declaration/injunction/other relief
⎯ In case of special damage – suit for damages
Who can file suit: (Section 91)
⎯ Advocate-general
⎯ 2/more persons with leave of court
⎯ Private person who has sustained special damage.

• Perumal Naicker v Rathna Naicker AIR 2004 Mad 492

“Cause (2) of Section 91, C. P. C. makes it clear that this Section would not limit or otherwise
affect any right of suit which may exist independently of its provisions thereby meaning that if
any individual gets affected by such public nuisance being caused, he or she, would have the
same right to file a suit for declaration and injunction and for mandatory injunction and
therefore since the plaintiffs in the suit being the neighbours, they are personally affected by
the nuisance created by the defendant, which is also bound to affect the general public from
freely making use of the pathway-cum-cart track for reaching important places such as the
school, river and the graveyard and such other places of vital importance and therefore it cannot
be said that no individual will have the right to question the validity of such a wrongful act
committed on the part of persons like defendants particularly in view of the fact that Section
91, C. P. C does not create a bar on any individual from resorting to the Court for relief in such
matters and therefore this substantial question of law regarding the capacity of the plaintiffs to
maintain a suit of this character has to be decided only against the appellant”

• Order refusing leave to file suit for public nuisance – appealable

IX. Suits relating to Public Trusts – Section 92

• Suit relating to public trusts/charities can be instituted by beneficiaries; all persons interested
in suit – representative suit.

Venugopala v. V. N Charities AIR 1990 SC 444

“the property of religious and charitable endowments or institutions must be jealously protected
because much segment of the community has beneficial interest therein. Sale by private
negotiations which is not visible to the public eye and may even give rise to public suspicion
should not, therefore, be permitted unless there are special reasons to justify the same. Care
must be given to fix the reserve price, after ascertaining the market value for safeguarding the
interest of the endowment.”

Conditions:
- Trust created for public purposes of charitable / religious nature
- Breach of trust
- Relief under Section 92 claimed, not any other relief

• R. M. Narayana Chettiar v N Lakshmanan Chettiar AIR 1991 SC 221

“Although, as a rule of caution, court should normally give notice to the defendants before
granting leave under the said section to institute a suit, the court is not bound to do so. If a suit
is instituted on the basis of such leave, granted without notice to the defendants, the suit would
 not thereby be rendered bad in law or non-maintainable. The grant of leave cannot be regarded
as defeating or even seriously prejudicing any right of the proposed defendants because it is
always open to them to file an application for revocation of the leave which can be considered
on merits and according to law. The defendants could bring to the notice of the court: for
instance that the allegations made in the plaint are frivolous or reckless. Apart from this, they
could, in a given case, point out that the persons who are applying for leave under S.92 are
doing so merely with a view to harass the trust or have such antecedents that it would be
undesirable to grant leave to such persons”

Who can sue: Section 93

• Advocate-general or Collector
• Two or more persons interested in trust with leave of cout

Relief allowed:
1. Removal of trustee;
2. Appointment of new trustee;
3. Vest property in trustee
4. Direct the guilty trustee to deliver possession of property to trust;
5. Direct inquiries into accounts;
6. Declaration on proportion of trust property to particular object of trust;
7. Settle scheme of trust;
8. Authorise mortgage or exchange of trust property.

Doctrine of cy-pres:
• As nearly as possible to donor/testator’s wishes which cannot be followed precisely.
• When a gift is made by will or trust (usually for charitable or educational purposes), and the
named recipient of the gift does not exist, has dissolved, or no longer conducts the activity for
which the gift is made, then the estate or trustee must make the gift to an organization which
comes closest to fulfilling the purpose of the gift.
• Meaning - As nearly as possible to the donor/testator’s wishes where it cannot be followed
precisely. SC explained this doctrine in Ratilal v State of Bombay
• On recommendation of Law commission, the doctrine of cy-pres is applicable to sec 92 - The
court would not have the power, authority or jurisdiction to deviate from the intention
expressed by the settlor - Ratilal v State of Bombay
UNIT- 7
Appeal
● Appeal - not refined in CPC
● Nagendra Nath Dey v Suresh Chandra Dey - Judicial examination of the decision of a lower
court by a higher court.
● 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.
● Appeals may lie as follows:
○ First appeal from lower court to first appellate court
○ Second appeal from first appellate court to HC
○ Appeal to SC from HC
○ SLP to SC
First Appeal (Section 96 - 99, Order 41)
- 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.
Who can file Appeal?
- Party to a suit adversely affected
- Representative in interest of party / Legal Representative
- Person claiming under party to suit (transferee/assignee)
- Court appointed guardian/ next friend
- Person who is not a party but is either bound by decree or is prejudicially affected by it
- Any other person adversely affected - with the leave of the court
When can the 1st Appeal be filed?
- After passing of judgement and decree - can be filed after preliminary decree and before final
decree
- Within limitation period under Limitation Act: 90 days from the date of decree before the HC
and 30 days before any other appellate court
Who may not 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.
- If a party agrees not to appeal or waives his right to appeal, he can not file an appeal and will
be bound by an agreement if otherwise such agreement is valid. Such an agreement, however,
must be clear and unambiguous.
Appeal Not allowed Against
According to Sec 96, appeal is not allowed in the instant matters
 - In a case of a compromise decree where decree passed by the Court with the consent of the
parties.
- No appeal lies against the decree passed by small-clause court, if the value of the subject-matter
does not exceed Rs. 10,000 -except on appeal question of law.
- No appeal against final decree if preliminary decree is not appealed.
Procedure of First Appeal (Order 41)
● Memorandum of appeal filed by appellant in prescribed form memorandum to contain: grounds
of objections under distinct heads; copy of judgment and decree
● Memorandum not to contain new grounds not raised in suit - Shreevastava v Veena
● Limitation: to High Court 90 days from date of decree; to any other court 30 days from date of
decree
● If memorandum not in prescribed form – return or rejection of memorandum (rule 3)
● If no prima facie error in decree – summary dismissal of appeal with reasons (rule 11, 11A)
● Ajit Kumar Singh v Chiranjibi Lal
○ If prima facie error in decree, appeal admitted (rule 12) and notice to respondent and to
trial court whose decree challenged in appeal (rule 14)
○ Respondent to appear and file objections to appeal within 30 days from notice
○ Non-appearance of appellant – appeal dismissed for default (rule 17); non-appearance
of respondent – appeal proceed ex-parte (rule 21)
● Respondent file objections to memorandum and cross-objections (rule 22) – cross-objections
is the objection to original decree also on different grounds - Oriental Insurance Co. Ltd. v.
Usha Gopalakrishnan
Powers of Appellate Court: (Section 107, Order 41 Rules 23-33)
1. Power to decide case finally on different grounds: Sec 107(1)(a), R24
- Decide case after resettling issues
- Distinct from grounds relied on by trial court
2. Power to remand case: S 107(1)(b), R 23, 23A, 26A
- Exceptional power - appellate remands case to trial court for retrial
- Conditions for remand
- Decree of trial court set aside / reversed as erroneous decree
- Original suit disposed on preliminary points or re-trial necessary in opinion of appellate
court
- Mohd Haji v Abdul Salam
3. Power to frame issues and refer them for trial: Sec 107(1)(c), R 25, 26
● Trial court omitted to frame/try issues essential for deciding dispute - appellate court frames
issue and refers matter to lower court
● Rallis India Ltd v Kanthan
4. Power to take additional evidence or require such evidence to be taken: S 107(1)(d), R 27-29
● General rule: Parties cannot produce additional evidence in appeal
● Exception:
○ If lower court refused to admit such evidence which ought to have been admitted
○ If party proves evidence not to be within knowledge despite due diligence during trial
● If appellate court requires evidence to pronounce judgement or any other sufficient cause
 ● Dondapati Narayan Reddy v Duggireddy - Modes of taking additional evidence in appeal
(R.28) - by appellate court itself or direct trial court to take evidence and report to appellate
court.
5. Power to Modify Decree: R33
- Pass any decree or order - Modify decree of trial / set aside or overrule decree of trial court
- Even on issues not challenged by parties in appeal - or on cross-decrees, even if other decree
is not challenged in appeal
6. Power of summary dismissal of appeal: R 11, 11A
- Appeal not in prescribed form - no substance prima facie
- Appellant fails to hear on date of hearing
7. Power to stay proceedings of lower court: R 5,6
- Filing appeal does not automatically stay execution proceedings
- Appellate court to expressly order stay
8. Other powers of court of original jurisdiction
Second Appeal
Essentials
Section 100 - appeal from decree passed in appeal by court lower than HV
- First appellate court is lower than HC - Appeal against order of 1st appellate court to HC as
2nd appeal
- Limitation: 90 days from date of 1st appellate court’s decree/order
- If HC is satisfied - and case involves substantial question of law - where decree was passed ex
parte - 2nd appeal is admitted
When Second Appeal not Allowed: Sec 101, 102
When substantial question of law not involved
- Substantial question of law is not defined
- Chunilal V. Mehta And Sons, Ltd. vs The Century Spinning And Manufacturing Co -
whether it is of general public importance or whether it directly and substantially affects the
rights of the parties and if so whether it is either an open question in the sense that it is not
finally settled by this Court or by the Privy Council or by the Federal Court
- Various precedence - Misconstruction of evidence, non consideration of relevant evidence,
consideration of irrelevant evidence, misinterpretation of relevant facts - Hero Vinoth v
Seshamal
- What is not a substantial question of law - When there are concurrent findings of trial court and
1st appellate court and the SC has settled that question earlier - even if improper reasoning in
trial court - matter not appealable in second appeal - Kanti Devi v Poshi Ram
Where original suit for recovery is less than Rs 25,000
- Self Explanatory
Letters Patent Appeal
- Section 100-A - 2002 amendment - no further appeal from decree/ order passed by single HC
judge in 1st or 2nd appeal
- Is the appeal from a single bench to division bench - whether this is allowed or not depends on
the HC rules
Procedure (Sec 100, O41, 42)
● Memorandum of appeal to contain substantial question of law – filed within 90 days from date
of decree in first appeal
● If no substantial question of law – summary dismissal of second appeal
● If appeal admitted - Notice to respondent and lower court
● High court itself formulate substantial question of law - they may file additional substantial
questions - reasons to be recorded
Power of Second Appellate court (Sec 107, 108)
● Power to remand
● Power to frame additional
● Power to take additional evidence
● Power to decide case on different ground
● Power to pass any decree/order
Difference between first and second appeal
First Appeal Second Appeal

Against decree of court of original jurisdiction Against decree/order of appellate court

In higher court above trial court In HC Only

On question of law and fact On substantial question of law only

Appeal From Orders (Sec 104-108, O 43)
● General rule – no appeal against orders unless expressly provided.
● Exceptions – orders under Section 104 and Order 43 appealable.
● Orders appealable are - Order awarding compensatory costs on vexatious grounds -
Interpleader orders
● Any order (appealable or not) can be challenged in final appeal against the final decree
● No second appeal against appealable orders also
● Limitation: to High Court 90 days; to other courts 30 days from date of order.
Appeal to Supreme Court (Sec 109, O 45 - Art 133, 134A, Constitution)
Conditions for appeal to Supreme Court (Section 109):
1. Final Decree / order by High Court
2. Substantial question of law of general public importance
3. Opinion of the High Court that the question ought to be decided by the Supreme Court.
Procedure: Order 45 Rules 2-12
● Aggrieved party petition High Court passing impugned decree for certificate of fitness
● High Court issue show cause notice to opposite party as to why certificate not to be granted
● High court to decide petition for certificate within 60 days
● If certificate issued under Article 134A – appellant to furnish security for costs of service to
respondent and expenses for translation, transcription, transmission of case record to Supreme
Court
Revision (Section 115)
“To revise” stands for “to look again” or “to look repeatedly at” or “to go through a matter carefully
and correct where necessary”.
Object
- prevent arbitrary illegal or irregular exercise of jurisdiction by the subordinate court.
- High Court is empowered to keep an eye on the proceedings of subordinate courts that the
proceedings are being conducted in accordance with the law, under its jurisdiction for which it
is bound for and in furtherance of justice - Major S S Khanna v Brig. F J Dillon
Conditions
1. The case must be decided.
2. The revisional jurisdiction is exercised when no appeal lies in the case decided by the
subordinate court.
3. The subordinate court has decided such case by:
● Exercise of jurisdiction which is not vested to that court by law - example - ordering
appearance of pardanashin woman - execution of preliminary decree before final decree
is passed, Order evicting persons protected under special rent control statute -
Jamadhar v Amirbi ., or
● It has failed to exercise the vested jurisdiction, or
● Illegal exercise of the vested power or with immaterial irregularity - material defect in
procedure - non consideration of relevant evidence - without recording reasons - DLF
Housing Co v Sarup Singh - suit doe specific performance for sale of land - part of
land acquired under land acquisition act - compensation disputed - corrected by HC in
revision - whether HCs revisional jurisdiction covers correction of decision?
Limitation period for revision - 90 days
Aman Finance Corp v Nithesh Kumar - Hire purchase agreement - vehicle taken into possession -
dispute as to who has lawful possession - Application that the matter was to be heard by arbitrator was
rejected - HC allowed for revision.
Review (Section 114, Order 47)
● Aggrieved persons can file an application for review in the same court which has passed the
decree. This provision has been made so as to facilitate the court to review their own decree or
judgement and rectify the same in case any error has been made while passing the judgement.
● Once judgment is pronounced, it is absolute and the court has no jurisdiction to alter.
● Exception: review - judicial re-examination of the case by the same court, same judge.
● Ram Baksh v Rajeshwari - option of review is still there even if the appeal has been dismissed
on any ground.
Order 47 - Conditions
In the following situation, the application for review can be filed by the parties:
- The decree or judgement is appealable however, no appeal has been preferred under the law.
- In case of no provision for appeal has been mentioned in the law for certain decree or
judgement.
- The Court of Small Causes has passed the decision.
Grounds for Revision
1. Where there are new discoveries of the facts, which were not in knowledge or could not be
produced at the time of passing of decree due to ignorance. - Northern India Caterers Ltd v.
Lt. Governor of Delhi
2. In case, the error is found on the face of the record and does not require the argument of the
entire case again. These errors are not related to wrong decisions made by the court. - Labh
Singh v Bant Singh
3. Any other case, in which case the delusion of the court can be considered as sufficient ground.
- S. Nagraj & Ors. V. State of Karnataka & Anr - held that any other sufficient ground has an
expanded meaning. An order passed in case of misinterpretation of the true facts can be
considered as sufficient ground.
Procedure
● aggrieved party apply for review after decree/order within 30 days from decree/order
● court reject application if no sufficient ground or call opposite party through show cause notice
● Order allowing / rejecting review application - appealable
● Hearing of application for review – same judge, same court
● If application granted – rehear case on review – original decree recalled
● Review by SC - Art 137, Consti
Reference (Section 113, Order 46)
Under the provision of Section 113, a lower or subordinate court can reach out to a higher court for
the doubt on a question of law in order to avoid the misinterpretation of the law which is called
reference.
Conditions
● Suit/appeal pending in subordinate court
● Question of law involved on validity of any statute/law
● Question of law material to case
● Subordinate court has reasonable doubt on validity of statute/law
● Statute/law not been declared invalid by High court or Supreme court
Procedure
● Subordinate court to formulate question of law with brief statement of facts and its own opinion
on validity of statute/law and refer to High Court – suo motu or on application
● Subordinate court may stay its proceedings or continue subject to decision of High court
● High court may decide question of law and transmit decision to subordinate court
● High court may withdraw entire case from subordinate court and hear itself
● High court may set aside or alter decision of referring court in the case
Differences
UNIT 8 - RESTITUTION, CAVEAT, INHERENT POWERS OF COURT RESTITUTION:
● Section 144:
144. Application for restitution – (1) Where and in so far as a decree or an order is varied or reversed
in any appeal, revision or other proceeding or is set aside or modified in any suit instituted for the
purpose, the Court which passed the decree or order shall, on the application of any party entitled in
any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may
be, place the parties in the position which they would have occupied but for such decree or order or
such part thereof as has been varied, reversed, set aside or modified; and, for this purpose, the Court
may make any orders, including orders for the refund of costs and for the payment of interest, damages,
compensation and mesne profits, which are properly consequential on such variation, reversal, setting
aside or modification of the decree or order.
● Object:
○ no person to suffer from act of court;
○ any injury caused by act of court ought to be undone
● Meaning
○ on reversal of court decision, restoring to a party what was lost in execution of
decision or directly from such execution; parties to be placed in the position
which they would have occupied but for the decree or order reversed, modified or
set aside.
● Conditions for restitution:
○ restitution for decision reversed or set aside
○ applicant entitled to benefit after reversal
○ claim directly due to reversal
● Who can apply:
○ Any party entitled to benefit – need not be appellant only, transferee of decree,
LR.
● Procedure:
○ Judgment-debtor to apply to court of first instance for restitution
○ court issues notice to all concerned parties
○ duty of court to pass any orders required for such restitution – not discretionary
● Case laws:
○ Lala Bhagwandas v. Lala Kishen Das AIR 1953 SC 136
○ Vindhyachal Tewari v Board of Revenue AIR 1956 All 663
○ Eastern Coalfields Ltd v State of Madhya Pradesh AIR 2003 SC 4482
It has been further considered by other coordinate Bench of this Court in the recent past in Murti
Bhawani Mata Mandir Rep. Through Pujari Ganeshi Lal (D ) Through LR Kailash v. Rajesh &
Ors. [2019 (3) SCC 707] as under:
“Section 144 applies to a situation where a decree or an order is varied or reversed in appeal, revision
or any other proceeding or is set aside or modified in any suit instituted for the purpose. In that
situation, the Court which has passed the decree may cause restitution to be made, on an application
of any party entitled, so as to place the parties in the position which they would have occupied but for
the decree or order or such part thereof as has been varied, reversed, set aside or modified. The court
is empowered to pass orders which are consequential in nature to the decree or order being varied or
reversed.”
It clearly transpires that Section 144 applies to a situation where a decree or order is varied or reversed
in appeal, revision or any other proceeding or is set aside or modified in any suit instituted for the
purpose. The principle of doctrine of restitution is that on the reversal of a decree, the law imposes an
obligation on the party to the suit who received the benefit of the decree to make restitution to the other
party for what he has lost. This obligation arises automatically on the reversal or modification of the
decree and necessarily carries with it the right to restitution of all that has been done under the decree
which has been set aside or an order is varied or reversed and the Court in making restitution is bound
to restore the parties, so far as they can be restored, to the same position as they were in at the time
when the Court by its action had displaced them.
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.
● How to file for 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 proceeding filed
as anticipated by 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:
1. Support the caveat petition with an affidavit. Both petition and the affidavit should be signed
by the caveator;
2. 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.
● Section 148-A
● Meaning: (not defined in CPC) caution/warning by party to court – not take action / grant relief to
applicant without information/notice to party lodging caveat called caveator
○ warning-cum-request
○ Nirmal Chandra v. Girinder Narayan AIR 1978 Cal 492
● Object:
○ Protect/prevent/Safeguard interest against order/relief ex parte
● Parties:
○ Caveator (person filing)
○ Respondent (likely to file a plaint or IA against the caveator) 81
● Duty of Court:
○ After caveat filed - any application for any ex-parte relief against caveator – court bound to issue
notice to caveator before granting any relief - should not grant the relief
○ Notice issued at expense of caveator - deposited at time of lodging caveat
application
● Procedure:
○ Caveator to lodge caveat in court, notify persons expected to sue caveator, deposit process fee in
court
● Rights and duties of caveator:
○ To give notice of lodging of caveat to persons who may make application for relief
○ To deposit process fee in court for the court to issue notice to caveator before granting interim order
against caveator
○ To deposit process fee for opposite party to furnish copy of application to caveator
● Rights and duties of applicant:
○ To furnish copy of application and documents to caveator at caveator’s expense
● Rights and duties of court:
○ To issue notice of application for interim relief to caveator – enable caveator to
appear, object to application
● Effect of failure to serve notice to caveator:
○ Interim order passed by court against caveator without notice to caveator – not void – operates till
set aside on appearance of caveator.
○ RBI Employees Association v. RBI AIR 1981 AP 246
■ If court grants ex-parte (bonafide) - not void - operative till set aside (caveator should bring it to the
notice of the court)
● Duration of caveat: valid for 90 days from date of lodging – renewed at the end of 90 days.

INHERENT POWERS OF THE CIVIL COURT

● Sec.148 - Enlargement of time by court over specified fixed time for any act under CPC
○ Extend time to a party over any specified fixed time to an act in CPC
○ (eg: O8R1 - time limit for filing WS - if unable, then Def can apply to court under s.148 for extension)
● S.149 - permission by court to consider court fees payment in full or partly
○ Generally: Plaintiff required to file court fees - failure can result in rejection of plaint
○ CC has the discretionary power to consider such amt paid to be payment in full
● Sec.150 - same extent of power of courts to which business of another court is transferred
○ Power to proceed with the cases which have been transferred from another civil court.
○ (example in case HC does it under writs) 82
● Sec.151 - power of court to pass any orders necessary for ends of justice or to prevent abuse of
process of court
○ Quite wide
○ Any types of orders to meet ends of justice or prevent abuse of court process
○ Incase any relief is not given under CPC, then s.151
○ Residuary provision
● Sec.152 - power of court to correct clerical, arithmetical mistakes in its judgements, decrees
and orders
○ Correct any clerical, arithmetic or petty mistake
○ Without waiting for party to apply
○ Suo motu
● Sec.153 - power of court to amend any errors in any proceedings
○ Pleadings included
○ Amend any error in any proceedings
○ Without waiting for parties to approach
○ Suo Motu
● Sec. 153A - power of trial court to make any changes to degree against which appeal
filed
○ Power to make any changes to decree against appeal which has been filed
○ While the appeal is pending, trial court has the power to make such decree, notice should be sent to
appellate court about the changes
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 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 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 theres words are not merely a polite expression as
per juristic methodology. These words also indicate that Justice is the persuit 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 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 so 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.

Amendment of judgments, decrees, orders, and other records

Section 152 of CPC deals with the “Amendment of judgements, decrees, and order.” According to
Section 152 of CPC, 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.
Summary of Provisions of Inherent powers of Courts
A summary of Section 148 to Section 153B is that the powers of the court are quite deep and extensive
for the scope of:
• Reducing litigation;
• Evade multiplicity of proceedings; and
• To supply full and complete justice between the parties.
Suggestions
It may be recommended that rules put down by the courts in the application of inherent powers
concurrently with the restraints and limitations on the application of the power be arranged in the form
of rules to be made by the Supreme Court and be made desirable to the courts for their leadership. The
rules may also provide to deal with different circumstances unprovided for which arises in future.
Conclusion
Inherent powers are the power of court which are helpful in minimizing litigation, avoid multiplicity
of proceedings and to render complete justice between two parties. Section 148 to 153B of CPC
discusses the provisions of the Inherent powers of the Court. These provisions discuss the enlargement
of time, payment of court fees, transfer of the business of one court to another court, end of justice,
abuse of process of the court, amendment of judgement, decree, orders, and records, etc.
UNIT 9- LIMITATION ACT

32 sections; 137 Articles; 3 Parts

- Imposes time limitation on Suits, appeals and applications.

- It is applicable only on Judicial proceedings.
- Not applicable to Quasi-judicial proceedings, criminal proceedings and Writ petitions.

It only bars the remedy and not the inherent right itself:

• Spears V. Hartley
In case of a debt, the debt isn’t considered as settled only the remedy through judicial proceedings
is barred.

• PNB V. Surendra Sinha

Rules of limitation do not destroy the rights of the party.

EXCEPTION:

Section 25- Acquisition of easement by prescription

The right to easement is absolute and indefeasible once a person has peaceably and openly enjoyed
the right to access and use light, air or any building, etc. without interruption and for 20 years. (30
years in case of government property)
In case of any disturbance, a suit to enforce may be filed within the two years of such disturbance
otherwise such right shall not be considered as absolute.

• Venkata reddy v Koti reddy

The respondent-plaintiff filed a suit for declaration of the easementary right of the plaintiff to let
off rain water discharged from the western plots. It was contended that water used to flow in the
natural way since a very long time.
It was alleged that the defendants dug up two wells and dug channels also. The earth so removed
was placed along the ridge thereby preventing the water to as a result the water was stagnating and
causing damage to the lands of the plaintiff.
The plaintiff has a right to either drain off the water in the natural way according to the levels of the
lands or he can also collect and direct it through a particular vent, but while doing so he must take
care that it should not cause more damage to the servient owner than what was caused when the
water was flown in the natural way.
In this case, this point does not arise. According to the lie of the land the water was flowing in its
natural way. By a device the defendants seem to have obstructed it. According to the lie of the land
the water was flowing in its natural way. thus the Courts below have directed that this device has
to go away.

• Raja Braja Sundar Deb v Moni Behara

 The doctrine of lost grant originated as a technical device to enable title to be made by prescription
despite the impossibility of proving immemorial user and since it originated in grant, its owners,
whether original or by devolution, had to be such persons as were capable of being the recipients
of a grant.
In this case, from the evidence, it appeared that the fishermen who were residents of certain villages
had been for a long time exercising the right of fishing in certain rivers.
Held, that the fishermen residing in these villages cannot be treated as a corporate body or a kind
of unit in whose favour a lost grant could be presumed or who could acquire a right to fish either
by adverse possession or by prescription.
It was stated that a right exercisable by the inhabitants of a village from time to time is neither
attached to any estate in land nor is it such a right as is capable of being made the subject of a grant,
there being no ascertainable grantees.

• Raghunath v. Madan Mohan

It has been held that there can be interruption only if in execution the decree-holder takes possession
of the property thereby physically preventing the other party from continuing in enjoyment of the
right. Mere protests do not amount to interruption. A right of easement is not interrupted by mere
verbal quarrels or contentions.

• A Sundar v S.N.Jaiswal
It was held that in a suit for removal of obstruction of the easement right, the limitation is two years
from the date of obstruction otherwise the suit will be barred by limitation.
A claim for prescriptive right would be defeated if the period of user had terminated more than two
years before the filing of the suit.

Section 26- Exclusion in favour of reversioner of servient tenement

When any land/water upon which easement has been enjoyed by the virtue of lease or servient
tenement for over three years, such time period is excluded from the 20 year period.
A lessor/Reversioner may resist the lessee’s right to easement within 3 years from the end of lease
period.

Section 27- Extinguishment of right to property

In cases with respect to property, if a suit hasn’t been filed within the period of limitation, the right
to the property shall be extinguished.

ADVERSE POSSESSION is when the defendant is in actual possession of someone else’s

property with the notice/ knowledge of the owner but without any interruption from the said owner
for 12 years (30 years in case of government property)– Adverse possession. Such possession has
to be open, hostile, exclusive as well as uninterrupted.
In such a situation, the owner’s right to property is extinguished.

• Anjanappa V. Somalingappa
In this case a suit was filed for declaration of title and possession.
 The defendant believing that it was government property had encroached upon plaintiff’s property.
It was held that mere possession however long does not necessarily means that it is adverse to the
true owner. Adverse possession has to include open and hostile possession which denies the title to
the true owner.
Held that the defendants don’t need to prove their lack of knowledge regarding the owner of the
property. If the defendants are not sure who is the true owner the question of their being in hostile
possession and the question of denying title of the true owner do not arise. Thus it was not
considered as adverse possession.

Section 3

- Sets a bar of limitation

- Suits, appeals or applications filed after the period of limitation are immediately dismissed.

WHEN IS A SUIT INSTITUTED?

1. When the plaint is presented to the officer.

2. In case of a pauper- When application to sue as a paper is made.
3. When a claim against a company being wound up is made, suit is instituted when the claim is sent
to the liquidator.
4. An application by notice in the high court is instituted when the application is presented to the
officer.
In case of a set off or a counter claim, it will be treated as a separate suit.
- A set off is instituted on the date on which it is pleaded.
- A counter claim is instituted on the date on which it is made.

Section 4- Expiry of prescribed period when court is closed.

In case of expiry on the date the court is closed- the time before limitation will extend until the court
reopens.

Section 5- Extension of prescribed period.

Any appeal or any application, other than an application under any of the provisions of Order XXI
of the Code of Civil Procedure, 1908 may be admitted after the prescribed period if the plaintiff
provides a satisfactory reason for delay. Liberal interpretation is given to the term “satisfactory”.

• Collector (Land Acquisition) V. Katiji

A delayed appeal filed was accepted because of a satisfactory reason provided by the state in the
court.

Disability
 Section 6 – Legal Disability
1. In case of a disability, a person may institute a suit within the same period after the disability has
ceased, as the time prescribed in the schedule.
2. In case of two disabilities, the time period shall commence after both the disabilities have ceased.
3. In case the disability leads to death, the legal representative may institute the suit within the
prescribed time period commencing after the death of the person.
4. If the legal representative in (3) is affected with any disability, the rules under (1) & (2) shall apply.
5. If the person dies after the disability has ceased but before the limitation period is over, the legal
representative may institute the suit within the same time period after the death as would otherwise
have been available to the person had he not died.

These disabilities include Minority (including a child in womb) as well as insanity.

The limitation period in this case starts from the time all disabilities have ceased and not from the
cause of action.

• Shah Hiralal v Shah Fulchand

In this case, the court had held that the date on which an individual becomes a major shall be
excluded while calculating the limitation period for a minor.

• Nathuram v Manphool
In this case there was a suit to challenge a gift by a grandmother. It was held that the right of
extension of the limitation period is a minor’s personal right and will not be extended to other parties
in the suit.
In this case there were three petitioners, two of whom had not filed the suit within the limitation
period while the third could extend the period by the virtue of being in the womb of his mother
when the limitation period started. It was held that the interest of the other two parties will not be
treated in the same manner as the latter’s because the extension of the limitation period was a person
right of the minor attaining majority and would not extend as a shadow claim for the other parties.

Section 7 – Disability of one of several persons

In case one of the several people jointly entitled to institute a suit is disabled and a discharge can
be given without the concurrence of such person, time will run against all the persons.
But if such a discharge is not possibly, time will not run against any of them until:
- either one of them becomes capable of giving such discharge without concurrence
- or when the disability of the person whose concurrence is required has ceased

Section 8 – Special exceptions

Sections 6 and 7 for extension of period of limitation are not applicable to suits to enforce rights for
more than three years from the cessation of the disability or death.

• Darshan Singh V Gurdev Singh

 The respondent was a minor at the death of his father and had filed a suit for possession within 12
years as per limitation act after attaining majority but after passing of 3 years from the date of which
the limitation period began and the disability ceased.
It was held that in each case the litigant is entitled to a fresh starting period of limitation from the
date of cessation of disability subject to the condition that in no case the period extended by this
process under S. 6 or 7 shall exceed three years from the date of cessation of the disability. The
Supreme Court was of opinion that the suit of the respondent is barred by limitation.

• Madhukar Vishwanath V Madhao

A suit for possession of property was filed but it was submitted that the suit was barred by time.
The respondent had become the de facto guardian after the death of the appellant’s parents. After
the respondent alienated the property, the appellant enjoyed possession as a consequential relief
didn’t filed the suit much after three years from attaining majority.
The first appellate court held that the period of limitation began on the date the respondent attained
majority and since the respondent didn’t file the suit within three years of the same, it was barred
by limitation.

Section 9 – continuous running of time

One the time is running, a subsequent disability or inability to institute the suit does not stop it.

Provided that – In case letters of administration to the estate of a creditor has been granted to the
debtor, the limitation period is suspended while the administration continues.

• State Of Punjab V Surjit Kaur

In this case, an appeal was dismissed on the grounds that it was barred by limitation. In this case
there were petitioners who were minors at the time the cause of action occurred so as per the
limitation act, they could file a suit within 3 years of attaining majority. The petitioners submitted
that the prescribed period of limitation for redemption of mortgage was shorter in the 1963 act than
the 1908 act so by the virtue of section 30 of the 1963 act, -

“30. Provision for suits, etc ., for which the prescribed period is shorter than the period prescribed
by the Indian Limitation Act, 1908. —
Notwithstanding anything contained in this Act,—
(a) any suit for which the period of limitation is shorter than the period of limitation prescribed by the
Indian Limitation Act, 1908 (9 of 1908), may be instituted within a period of 1 [seven years] next
after the commencement of this Act or within the period prescribed for such suit by the Indian
Limitation Act, 1908 (9 of 1908), whichever period expires earlier.”

It was held that as per this provision, the petition could have been filed by 1971(7 years after the
1963 act was commenced) but since the petitioners were minors at that time, they had to follow the
provision of filing the suit within three years of attaining majority.
Since They didn’t file the application in the said period, the appeal was dismissed.
 Section 18. Limitation Act - Effect of acknowledgment in writing
when acknowledgement of liability made –fresh period of limitation begins.
“1. Where, before the expiration of the prescribed period for a suit or application in respect of any
property or right, an acknowledgment of liability in respect of such property or right has been made
in writing signed by the party against whom such property or right is claimed, or by any person
through whom he derives his title or liability, a fresh period of limitation shall be computed from
the time when the acknowledgment was so signed.”

Conditions for valid acknowledgement:

1. Before limitation period for debt expired – acknowledgement of subsisting debt is allowed. if
limitation has already expired, it would not revive under section 18 of the Limitation Act.
Exception: acknowledgement of time-barred debt is allowed only if express promise to pay.
2. Must be in writing
3. signed by debtor, if written by another
4. dated – if undated, oral evidence allowed to prove date
5. by debtor / person deriving title from debtor
6. acknowledgement of liability – no need for promise to pay – even refusal to pay amounts to
acknowledgement but a denial of debt is not acknowledgement
7. made to creditor or to any other person – even stranger

• State of Kerala v Chacko

The Supreme Court has clarified that an acknowledgment need not be specific. If the necessary
facts which constitute the liability are admitted, an acknowledgment may even be inferred from
such an admission.
The ingredients of Section 18 were summarised as follows:\
1. There must be an acknowledgement of liability in respect of property or right;
2. the acknowledgement must be in writing signed by the party against whom such right or property
is claimed (or by any person) through whom he derives his title or liability;
3. the acknowledgement must be made before the expiration of the period prescribed for a suit or
application (other than application for the execution of a decree) in respect of such property or right.

Further, it was stated that the acknowledgement may be sufficient for purposes of Section 18 even
though,
- it omits to specify the exact nature of the property or right;
- it avers that the time for payment, delivery, performance or enjoyment has not yet come;
- it is accompanied by refusal to pay, deliver, perform or permit to enjoy;
- it is coupled with a claim to set off; or
- it is addressed to a person other than a person entitled to the property or right.
Clause (b) of the explanation defines the word "signed' to mean signed either personally or by an
agent duly authorised in that behalf.

• Subbarsadya v.Narashimha
 It is not necessary that an acknowledgment within Section 18 must contain a promise pay or should
amount to a promise to pay.

• Syndicate Bank v Veeranna

It was held that if the person liable acknowledges the debt in writing as required by Section 18 of
the Limitation Act, 1963, the acknowledgment also operates as a fresh contract to repay the amount.

• Carboxy Chemicals Ltd v Deepika Housing Project Ltd

Petitioner had given loan to company.
When petitioner demanded refund of money, company responded to demand contained in statutory
notice that no amount was due or payable by company to petitioner.
The petitioner filed a suit for recovery of amount and when same was pending company filed
application for winding up wherein injunction was granted and provisional liquidator was
appointed.
It was held that company acknowledged receiving the payment but claimed, without any reason in
support thereof, that the money stood forfeited in the company's hands.
It was held that Cl. (a) of the Explanation to s. 18 makes it clear that the refusal to pay would not
affect the claim.
In this case, there is acknowledgment of receipt of payment and the denial of liability on some
ground. The denial is the justification for non-payment and mere denial, in the face of Explanation
(a) to the section, will not take much sheen off a document that can otherwise be read as an
acknowledgment of liability.

• Valliamma Pillai v Sivathanu Pillai

It was held that it is essential that a person either making acknowledgment of liability or a person
making the payment must make acknowledgment or payment by his own writing signed by him or
in writing at least signed by him. In other words, there must be a written acknowledgment
containing an admission of a subsisting liability, and a mere admission of past liability is not
sufficient to constitute such an “acknowledgment”.

Exclusion of Time in Limitation period (Sections 12-15)

Periods excluded:
1. Day when limitation starts; (Section 12 (1))
2. Day when decree/order pronounced in case of an appeal, revision or review; (Section 12(2))
3. Time for obtaining certified copy of decree/order/sentence; (Section 12(3))
4. In computing the period of limitation for an application to set aside an award, the time requisite for
obtaining a copy of the award shall be excluded. (Section 12(4))

5. Time for hearing application to sue as indigent person/pauper; (Section 13)

6. Time during which the plaintiff has been prosecuting in good faith, another civil proceeding against
the defendant shall be excluded. (Section 14(1))
7. Time in proceedings initiated bona fide in court without jurisdiction; (Section 14(2))

8. Period of stay on proceedings by court; (Section 15(1))

9. Time for giving notice/obtaining consent from government as required by law; (Section 15(2))
10. Period during which receiver/liquidator appointed and functioning; (Section 15(3))
11. Time in proceedings to set aside sale of property pending in suit for possession; (Section 15(4))
12. Period when defendant outside India (Section 15(5))

Postponement of Date when Limitation period starts (Sections 16-23)

Date when period of limitation starts postponed till:
1. Person who can sue/be sued comes to exist (on death of person, limitation starts when LR found to
exist)
2. In case of fraud/mistake, when fraud/mistake discovered or could have been discovered with
reasonable diligence
3. The date of acknowledgement in writing of right/liability
4. The date of payment, in part/whole, of debt
5. In case of new plaintiff/defendant added in pending suit, date when added as plaintiff/defendant
6. In case of continuing breach of contract/tort, every day the breach/tort continues
7. The date when injury results in case of suit for compensation for special damage.