Civil Procedure Code Notes

Section 2 from book

Order 1 and 5 and Section 27, 29 from book

Introduction

Section 9 of the “Civil Procedure Code” explicates the jurisdiction of civil courts in India. The
Section reads “subject to provisions herein contained courts shall have the jurisdiction to
adjudicate on all suits of a civil nature barring those the cognizance of which are impliedly or
expressly barred.” Two conditions need to be satisfied for a civil court to exert jurisdiction
on a suit:

1. “The suit must be civil

2. The cognizance should not have been impliedly or expressly barred for such a suit.”

A civil suit has not been defined in any Act. Any suit of a non-criminal nature which ratifies
or determines civil rights can be termed as a civil suit. The Supreme Court enunciated on the
definition of a civil proceeding in Kehar Sinha Nihal Singh v. Custodian General as an
approbation of private rights to corporations or human beings. The reward or retrieval of
private property is the objective of a civil action. A civil action may, in other words, be
defined as “a legal proceeding between two parties for the redressal, determination or
implementation of private rights.”

The private rights and obligations of citizens are covered under the expression “suit of civil
nature.” A civil suit shall not adjudicate on a political or religious question. However, if the
moot question in a suit relates to property and certain ancillary questions involving caste or
religion a decision relating to caste or religious rites shall not terminate the suit from being
one of civil nature. The courts have the jurisdiction to decide on such cases, to adjudicate on
the more important question which is civil.

Each phrase of the doctrine approbates a duty of the Apex Court to apply its jurisdiction for
the purpose of allocation of rights. If the requirements under Section 9 are satisfied for a
particular case, no court can deny examining the matter in concern. The dictionary
definition of the word civil relates it to a citizen or an individual. The inherent qualities of a
person/thing can be termed as his/her “nature.” The phrase “civil nature” is more pervasive
than the phrase “civil proceeding.” The Supreme Court in PMA Metropolitan v. M.M
Marthoma, enunciated the meaning of the term jurisdiction. The court observed, “the
expensive nature of the section is demonstrated by the use of phraseology both positive
and negative, the language used is simple but explicit and clear […]. It is structured based on
a civilised jurisprudence that the absence of machinery for enforcement of rights renders it
nugatory. The heading which is normally a key to the section brings out unequivocally that
all civil suits are cognizable unless barred. What is meant by it is explained further by
widening the ambit of the section by use of the word ‘shall’ and the expression all suits of
civil nature unless expressly or impliedly barred.”
Phrases including words and expressions obligate the court to invoke its jurisdiction for the
purpose of application of rights. Further mandated by the usage of the word “shall.” So long
a suit pertains to the nature mentioned in the section, the same cannot be refused by the
court. The expression “all suits of civil nature” amplifies this duty. The above contention was
reaffirmed in the case of Shankar Narayanan v. K. Sreedevi, wherein the Apex Court
observed: “Civil Court has primary jurisdiction in all types of civil matters as per Section 9 of
CPC unless the action is expressly or impliedly barred.” The decision implied that a civil
court’s jurisdiction can be ousted by the legislature by amending or adding a provision to
the Act in itself. The court was instructed in the case of Shri Panch Nagar v. Purushottam
Das, if any specific terms are lacking from any statute, to find an implied dismissal of the
civil courts’ jurisdiction enumerated in any design, plan, or suitable provisions of the
statute.

Therefore, a suit which concerns a question of property is a suit of civil nature, irrespective
of whether such suits might include a question pertaining to religious ceremonies or rituals
and the complainant bears the authority to commence a civil suit unless its jurisdiction is
“expressly or impliedly” forbidden by the court. The burden to prove the jurisdiction of the
court is on the parties which try to dismiss it. The statute dismissing the court’s jurisdiction
must be well explained and established. The court is supposed to refer to the theory of
jurisdiction in case there is any doubt concerning the same. While a civil court is authorised
to decide on a suit concerning its jurisdiction, in consequence, however, it may be
established that the court lacks the jurisdiction to adjudicate the case.

The project seeks to understand several nuances of Section 9 in a comprehensive and

analytical way. With a view to understanding several crucial concepts under the section
better, the project presents an analysis of section 9 along with several key judgments on the
issue. The authors end by providing their own insight and comments on the section.

Understanding important concepts under Section 9

Jurisdiction

In the world of law, the first point that an attorney is supposed to prove is that the court
which has been approached by him has the jurisdiction to try the suit. However, neither
procedural nor substantive laws attempt to describe what is meant by the term
“Jurisdiction.” The word “Jurisdiction” has stemmed from the Latin phrase “juris” which
translates to “law” and “dicere” meaning “to speak”. In simple terms, it can be defined as
“The power of a court to decide a case or issue a decree.” A court is said to have jurisdiction
for the suit when it not only has the power to try the suit but can also pass orders or
decrees in relation to it.

In the year 1928, the Calcutta High Court attempted to explain the meaning of the term
jurisdiction in the case of Hriday Nath Roy v. Akhil Chandra Roy, the court stated:
“jurisdiction is the power of the court to hear and determine a cause, to adjudicate and
exercise judicial powers in relation to it.” It went further and demarcated three different
categories of jurisdictions:
 1. Subject matter jurisdiction – Subject matter implies the main or the fundamental
matter of a particular nature which is under question. Subject matter jurisdiction
essentially states whether the court has the authority to try the subject matter in
question. It primarily specifies whether the courts are allowed to try matters of a
certain nature. If not, then the courts cannot try that particular case.
2. Pecuniary jurisdiction – Pecuniary implies “related to capital”. It means of a certain
monetary value. A court can have certain financial limitations which the courts
should adhere to and beyond which the courts cannot try the matter. The primary
aim of setting a pecuniary jurisdiction is to preclude the higher courts from getting
burdened and at the same time extend help to the parties.
3. Territorial jurisdiction – Also known as local jurisdiction, territorial jurisdiction lays
down the geographical limits of a court’s authority. It ensures that such limits of
courts are clarified clearly and specifically. No court is authorized to try matters
which exist beyond their respective territorial limit.

Apart from the above three classifications, jurisdictions are also divided on the basis of
“original”, and “appellate jurisdiction” or “exclusive” and “concurrent jurisdiction.”
Additionally, the jurisdiction of the court is not decided on the arguments of the defense but
on the basis of the allegations made in the complaint. An order passed by a court lacking
jurisdiction is nullified and is unenforceable by law. When it comes to civil courts they are
governed by the “Code of Civil Procedure 1908”, which is procedural law. The jurisdiction of
the civil courts is dealt with under Section 9 of the Code of Civil Procedure, 1908.

Suits of civil nature

The term civil denotes rights and “remedies sought by action”. It relates to a suit that is not
criminal in nature and concerns the rights of and wrongs done to individuals regarded as
private persons. A cursory glance at Section 9 clarifies that all civil courts, subject to the
provisions of the act, have the jurisdiction to try all suits of civil nature “except the suit of
which cognizance is either expressly or impliedly barred.” Therefore, essentially any suit of
civil nature can be tried by the court unless it is either expressly or impliedly barred. This
implies that a court cannot try any matter which is not of civil nature.

As can be observed from the explanations, suits of civil nature mean a suit that is presented
before a Civil Court for adjudication of a civil matter, more specifically to determine the right
of property or office. In the landmark case, Shankar Narayan Potti v. K Sreedevi, the Apex
Court held that ”it is obvious that in all type of civil dispute civil courts have inherited
jurisdiction as per Section 9 of the CPC unless a part of Jurisdiction is carved out from such
jurisdiction, expressly or by necessary implication by any statutory provision conferred on
any other tribunal or authority.”

Expressly or impliedly barred

1. Suits expressly barred – A suit barred by an enactment for the time being in force is
said to be expressly barred. A competent legislature can bar jurisdiction of civil
courts with respect to a particular class of suits of a civil nature, provided that, in
doing so, it keeps itself within the field of legislation conferred on it and does not
 contravene any provision of the Constitution. Hence, a suit is said to expressly barred
when it is prohibited by the statute for the time being in force.
2. Suits impliedly barred – A suit barred by general principles of law is said to be
impliedly barred. Where the statute provides a specific remedy, it deprives the
person of a remedy of any other form. Similarly, even civil suits are barred from the
cognizance of a civil court on the ground of public policy. A suit is said to be impliedly
barred when it is said to be excluded by general principles of law. When a specific
remedy is given by statute, it, therefore, denies a person who requires a remedy of
any different form than is given by statute.”

In Raja Ram Kumar Bhargava v. Union of India, the Supreme Court set down certain
important considerations for the determination of implied exclusion of Civil Court’s
jurisdiction. They are:

a) Whether a right, not pre-existing in common law has been created by a statute.

b) That statute itself provided machinery for enforcement of that right.

c) Both rights and remedies have been created uno flatu.

d) A finality is intended to be the result of the statutory proceedings.

Unless the relevant statute entails a provision expressly or indicates to an

inevitable/necessary implication stating the jurisdiction of the civil courts is excluded to try
the immediate case, exclusion of the jurisdiction of civil courts will not be assumed. The
general rule states the presumption would be made in favor of the existence of a right to
sue in a civil court, whereas exclusion of the same would be considered an exception. If at
all there are doubts regarding the ousting of the jurisdiction of a civil court, the court shall
make an interpretation that would maintain the jurisdiction.

Relevant rights under the Section

The Section covers within its ambit three important rights. First is the right to property. This
right implies and includes “movable, immovable, intellectual, inheritable property and
property that arise out of any contract, agreement, litigation, or out of any other civil
rights.” Other than the former, we also have the right to the office, as given under the
explanation. As against the right to property which only has to do with ownership, the right
to office implies a right to both acquire a position and subsequently exercise it. This could
include any position in a job, religion, etc.

In what has spurred controversy and debate, the right to religion has also been declared as a
civil right. It must be noted that any suit, the primary question of which pertains to a religion
or a caste, does not belong to a civil nature. However, if such question in a suit is of a civil
nature (right to property or to an office) and it so happens that the adjudication incidentally
involves an element that involves a dispute relating to caste or to religious rites and
ceremonies, the suit does not immediately cease to be of a civil nature.

Analysis of Section 9 of CPC

Presumption and scope

It is a general presumption that when there’s a suit pending before a civil court, it would
have the jurisdiction to try the same. If a party wishes to challenge the competence of the
court, then it must prove it with relevant authorities as to why that is the case and such
claims are not accepted on a prima facie perusal of facts. Further, even if there is a claim of
non-competence of the court to hear the particular claim, the court may still exercise
jurisdiction for cases wherein statutory bodies or tribunals have heard cases beyond their
jurisdiction.

It is quite clear that Section 9 of the CPC covers “the jurisdiction of a Court to try the suit.”
However, it is pertinent to note that there are two essential prerequisites that need to be
fulfilled before the hearing of the suit. Firstly, there must be a “cause of action.” Without
proving that there was a proper cause of action, could lead to the suit being summarily
rejected. Additionally, courts have opined that suits for temporary injunctions are not
maintainable.

Secondly, there needs to be an inherent right of the plaintiff to sue the defendant. It is
pertinent to note that common law grants this as an inherent right upon all individuals for
the filing of a suit. However, this would differ in cases of appeal as in the case of appeals
there are statutory provisions that govern who may and who may not appeal, but that is not
the case in the case of instituting suits. Furthermore, the principles that are to be applied
have been very clearly laid down by a Constitution Bench of the Hon’ble Supreme Court
wherein the object and scope of Section 9 have been discussed.

Limitations concerning the exclusion of jurisdiction

Common assumption dictates, civil courts have the jurisdiction to try any suit and the
prosecution has the power to initiate a suit of civil nature in a civil court independent of any
statute unless expressly or impliedly barred. However, the above-stated rule is not without
exceptions. A court has the jurisdiction to adjudicate whether the provisions of the act and
rules enumerated thereunder have or have not been complied with if the order is in
contradiction to the law, mala fide, ultra vires, perverse, arbitrary, ‘purported’, or is in
contradiction to the principles of natural justice, is based on “no evidence” rule and so forth.
The Privy Council in Secretary of State v. Mask and Co., commented it is the established law
that jurisdiction of civil courts is not supposed to be expressly inferred but should have been
impliedly barred or explicitly expressed by any statute. The court further enunciated that
civil courts have the jurisdiction to examine cases which may not have observed the
fundamental principles of the judicial process.

In-State of A.P v. Majeta LaxmiKanth Rao, the Supreme Court examined the elimination of
jurisdiction of the civil courts. First, the court needs to decide on the legislative intent to
remove the suit either directly or impliedly. While the courts are obliged to discern the
causes for the exclusion of the jurisdiction of civil courts and find an explanation for the
same, the reason is not subject to judicial examination. Thereafter, the court after being
convinced of the reasons needs to ponder on whether the statute prohibiting the
jurisdiction allows for an alternative remedy. The civil court’s jurisdiction cannot be
obliterated if no alternative remedy is stated. However, in Balawwa v. Hasanabi, it was
propounded that the jurisdiction of a civil court is excluded only to such extent concerning a
tribunal established by a statute when the support approbated by the tribunal is
questioned.

Justice SubbaRao, J. in the leading case of Radha Kishan v. Ludhiana Municipality,

enumerated the appropriate legal position concerning the jurisdiction of courts under
Section 9 of the Civil Procedure Code, the court shall have jurisdiction to try all suits of civil
nature except suits of which cognizance is either expressly or impliedly barred. A statute,
therefore, expressly or by necessary implication, can bar the jurisdiction of civil courts in
respect of a particular matter. The mere conferment of special jurisdiction on a tribunal in
respect of the said matter does not in itself exclude the jurisdiction of civil courts. The
statute may specifically provide for ousting the jurisdiction of civil courts; even if there was
no such specific exclusion, if it creates liability not existing before and gives a special and
particular remedy for the aggrieved party, the remedy provided by it must be followed. The
same principle would apply if the statute had provided for the particular forum in which the
remedy could be had. Even in such cases, the civil court’s jurisdiction is not completely
ousted. A suit in a civil court will always question the order of a tribunal created by statute,
even if its order is, expressly or by necessary implication, made final, if the said tribunal
abuses its power or does not act under the act but in violation of its provisions.”

A glance at the landmark judgments

The above discussion clarifies the jurisdiction of civil courts is all-encompassing unless
expressly excluded by law or intentions arising from such law.

Dhulabhai v. State of M.P.

Justice Hidayatulla, in the case of Dhulabhai v. State of M.P, enumerated certain principles
concerning the exclusion of jurisdiction of civil courts. The facts and the principles laid down
in the aforementioned case are enlisted below.

Facts

The appellants, in this case, were tobacco dealers operating in Ujjain. Tobacco is bought and
sold for the purposes of smoking, eating, and preparing bidis. During the same time the
Madhya Bharat Sales Tax Act, 1950 was enumerated on 1st May 1950. As per Section 3 of
the Act, every dealer whose business in the last year exceeded by rupees 12,000 was liable
to pay a tax concerning the sales. It was explicated under Section 5 of the Act, the tax was of
a single point nature, and the proviso specified the government is liable to point out the
point of sales when the tax was to be paid. The Section specified the maximum and
minimum level of tax, allowing the respective government to decide the actual rate i.e even
though the tax rate is not prescribed the minimum and maximum level is. A plethora of
notifications were issued by the government from April 1950 to January 1954 imposing
taxes at different rates on tobacco as mentioned above. However, the tax was not collected
at the above-stated rate. In Madhya Pradesh, the tax was not imposed on the purchase or
sale of tobacco. The tax was accumulated by authorities in varying amounts for different
quarters from the plaintiff. The plaintiff issued notices under Section 80 of the Civil
Procedure Code explaining no suit can be instituted against the public officer/government
until the completion of the two months’ notice in his official duty.

Principles laid down

1. Wherein a finality is attributed to orders of special tribunals, the jurisdiction of civil

courts is assumed to be excluded if sufficient remedy to do what normally civil courts
in a suit would do. However, cases wherein the provisions of a particular Act has not
been adhered to or the fundamental principles of judicial procedure have not been
complied with by a statutory tribunal is excluded by the provision.
2. Where an explicit bar exists to the jurisdiction of a court, finding the reasonableness
and sufficiency of the provided remedies by examining the scheme of a particular Act
may be deemed relevant but indecisive for preserving the jurisdiction of a civil court.
However, when no definite exclusion exists, scrutiny of the remedies and scheme of
a particular act to glean the intent becomes essential and the result of the probe
may be decisive. It is necessary in the latter case to glean whether the statute
enumerates any special rights or liabilities and provides for its determination. The
statute further enumerates questions pertaining to the same right and liability as
determined by the constituted tribunals and whether the remedies related to
actions in civil courts are stipulated by the said statute or not.
3. Any suit challenging the provisions of a particular act as ultra vires cannot be brought
before the tribunals created under this Act. Neither can the High courts delve into
such a question on a reference or revisions from decisions of tribunals.
4. A suit may be filed in a case wherein the constitutionality of a provision is questioned
or is deemed unconstitutional.
5. A suit is said to lie where a particular Act does not consist of any machinery for a
refund of the tax collected illegally or over constitutional limitations.
6. A civil suit cannot be brought forth before the court if the directions of the
authorities are deemed final and an explicit prohibition is enumerated in the Act.
Concerns regarding the correctness of an assessment, barring questions concerning
its constitutionality are to be decided by the requisite authorities. The Scheme of a
particular Act in either case must be scrutinised considering the relevance of the
enquiry.
7. Unless the aforementioned conditions are satisfied, questions concerning an
exclusion of the jurisdiction of a civil court are not to be inferred.

The principles enumerated are essential in deciding the exactitude of the assessment of
orders under axing statutes.

Premier Automobiles v. K.D. Wadke

The Supreme Court in Premier Automobiles v. K.D. Wadke, propounded certain directions
concerning industrial disputes relevant to the jurisdiction of civil courts. The facts and the
principles laid down are mentioned below.

Facts
The case relates to Section 18(1) of the Industrial Disputes Act concerning the dispute
between employer and employee and whether such a dispute can be decided by a civil
court. The jurisdiction of the civil court concerning industrial dispute principles. Section 10A
of the Industrial Disputes Act of arbitration-jurisdiction of civil courts to adjudicate.

Principles laid down

1. If the suit is not an industrial dispute and it does not correspond to the enforcement
of any rights under the Industrial Disputes Act, it shall come under the purview of
civil courts.
2. If the dispute is an industrial conflict arising from a right or liability under the public
or general law and not under the ID Act, the jurisdiction of the civil court is to be
decided by the appellant (person concerned), his/her remedy for the relief capable
of being granted in a particular remedy.
3. If the Industrial dispute concerns the enforcement of any right or obligation
enumerated under the Act, the suitor can get a remedy only under the Industrial
Disputes Act.

Meaning

Res means every object of right that forms the subject matter in a particular case. In Latin,
the term Sub-judice means ‘under a judge’ or in other words, a matter ‘under
consideration’. It means a cause that is under trial or pending before a court or judge. The
doctrine of res-judicata prevents the trial of a suit which is already pending in a court of
competent jurisdiction. When the same parties file two or three cases in the same matter,
the competent court has the power to stay proceedings of another court. The primary aim is
to prohibit the courts of concurrent jurisdiction from simultaneously entertaining two
parallel litigations.

Nature, Scope and Objective

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

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

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

Meaning of suit

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

In Pandurang Ramchandra vs. Shantibai Ramchandra, the Supreme Court has stated suit is
to be understood to apply on any proceeding in a court of justice by which an individual
pursues that remedy which the law affords.

Conditions

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

 Where the matter in issue is same

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

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

Matter directly and substantially in issue– Here “directly” means immediately i.e. without
any intervention. The word “substantially” implies essentially or materially.
Matter collaterally and incidentally in issue– It is just contrary to the matter directly or
substantially in issue.

 Where the parties in suits are same

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

 Where the title of the suit is same

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

 Where the suit must be pending

The former suit must be pending in the court while the latter suit is instituted. The word
pending is for the previously instituted suit, where the final decision has not been arrived at.

 In a competent court

Section 10 also specifies that the former suit must be pending before a court which is
competent to carry out the trial. If the former suit is pending before an incompetent court,
no legal effects can flow from it.

Illustrations:

 ‘X’ and ‘Y’ decide to enter into a contract for the sale of machine. ‘X’ is the seller and
‘Y’ is the purchaser. Y defaulted in paying the amount of the sale to X. X first filed a
suit for recovery of the entire amount in Bangalore. Subsequent to this, X filed
another suit at Bombay High Court demanding Rs. 20,000 as outstanding balance. In
X’s suit Y took the defence that X’s suit should be stayed since both the suits are on
similar issue. However court of Bombay held that since X’s first suit and the second
suit have similar issues similar to the first suit, the subsequent suit is liable to be
stayed.
 ‘P’ was an agent in Patna who agreed to sell goods in Odisha to ‘M’. ‘P’ the agent
then filed a suit for balance of accounts in Patna. ‘M’ sues the agent ‘P’ for accounts
and his negligence in Odisha; while the case was pending in Patna. In this case, Patna
court is precluded from conducting trial and can petition Odisha Court to direct a
stay of proceedings in Patna Court.

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

However, Section 10 takes away the power of the court to examine the merits of the case
thoroughly. If the court is satisfied with the fact that the subsequent suit can be decided
purely on legal point, it is open for the court to decide in such a suit.
In Neeta vs. Shiv Dayal Kapoor & Others it was held the subsequent matter can not be
stayed if the conditions mentioned in Section 10 are not fulfilled. In the apparent case, the
two courts which tried the same issues were not the courts having concurrent jurisdiction.
Therefore, the proceedings in the subsequent court were not stayed.

Test

The test of applicability for Section 10 is whether the decision in a former given suit would
operate as res judicata(decided case) in the subsequent suit. It this happens, then the latter
suit must be stayed. This can also be inferred from S.P.A Annamalay Chetty vs. B.A Thornbill.

Click above

Suit pending in foreign court

The explanation clause of Section 10 clearly provides that there is no limitation on the
power of an Indian court to try a subsequent instituted suit if the previously instituted suit is
pending in a foreign suit. This also means that the cases can be carried on simultaneously in
two courts.

Inherent power to stay

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

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

Consolidation of suits

The objective behind Section 10 is to avoid two contradictory decisions in the same matter
by different courts. To overcome this the courts can pass an order of consolidation of both
the suits. In the case of Anurag and Co. and Anr. vs. Additional District Judge and Others , it
was explained that consolidation of suits is ordered under Section 151 for meeting the ends
of justice as it saves the party from a multiplicity of cases, delays and expenses. The parties
are also relieved from producing the same evidence at two different places.

Effect of contravention

Any decree passed in contravention of Section 10 is not null and therefore cannot be
disregarded completely. It is to be clearly understood here that it is only the trial and not
the institution of the subsequent suit which is barred under this section. But this right which
is given in favour of parties can be waived by them. Hence, if the parties in a suit decides to
waive their rights and ask the court to proceed with the subsequent suit, they cannot
afterwards challenge the validity of the subsequent proceedings.

Interim orders

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

Difference between Res Judicata and Res Sub Judice

Res Judicata Res Sub Judice

Res judicata applies to a decided or Res Sub judice applies in a matter which is
adjudicated matter. pending.
It bars the trial of a suit or an issue which has It bars trial of a suit which is a pending
already been decided in a former suit. decision in a previously instituted suit.
Section 11 of the Civil Procedural Code, 1908 Section 10 of the Code exclusively deals with
deals with res judicata. the principle of res sub judice.
Conditions:
Conditions:
1. There must be presence of two suits
1. A court of competent jurisdiction
one which was formerly instituted and
must have given the decision in the
other which was subsequently
former instituted suit.
instituted.
2. The matter in issue in the subsequent
2. The issues in the subsequent suit
suit must be same which is directly or
should be directly or substantially be
substantially in issue in the former
the same with the previous suit.
suit.
3. The parties in both the suits should be
3. The parties should be same in both
same.
the suits.
4. The court in which the previous suit
4. The court which gave decision in
was instituted must be a court which
former suit must be a court of
has competent jurisdiction to try such
competent jurisdiction.
suit.
5. The parties in the former suit must
5. The title should also be the same in
have litigated under the same title or
both the suits under which they are
in other words in the same capacity.
litigating.

Conclusion

Res sub judice as a doctrine has the main purpose of reducing the burden of courts from
abundance cases. In other way it also reduces the burden of parties to adduce oral or
written evidence twice in different courts. It also avoids conflicting decisions and makes sure
to minimise the waste of resources of courts. The court can exercise this power and put a
stay on the subsequent suit. The people who try to misuse their right in order to get double
benefits are looked after through this principle. Anyways the Indian judiciary is
overburdened with many cases and if parties will start instituting cases twice then one can’t
even imagine the situation of the courts in giving decision in all such cases.

Introduction

Section 11 of the Code of Civil Procedure, 1908 represents the doctrine of res-judicata or
the rule of conclusiveness of judgement, as to the points determined earlier of fact, or of
law, or of law and fact and in every consecutive suit between the identical parties. It
legislates that once the matter is finally settled by a competent Court, no party can be
allowed to reopen it in a subsequent litigation. In absence of such a rule there will be no end
to litigation and the parties would be put to non stop dilemma, harassment and expenses.

Satyadhyan Ghosal v. Deoraji Debi[1]

The actual meaning of “res” is “everything that may form an object of rights and includes an
object subject-matter or status” and “judicata” means adjudged, adjudicated or decided.
Thus, actually means: “a matter adjudged; a thing judicially acted upon or decided by
judgment.

Escorts Farms v. Commissioner[2]

The doctrine of Res judicata is a very old doctrine. Under Roman law, it was recognised as
ex-captio res judicata which indicates previous or former judgment. The principle of Res
judicata is accepted in the larger public interest which involves that all litigations must,
sooner or later, come to an end. The principle is also established on equity, justice and good
conscience which demands that a party which has once succeeded on an issue should not
be permitted to be harassed by a multiplicity of proceedings involving determination of the
identical issue.
In Satyadham Ghosal v. Deorajin Debi [3], the Supreme Court made clear the principle of Res
judicata in the following words:- “The principle of res judicata is established on the need of
giving finality to judicial decisions, what it says is that once a res is judicata, it shall not be
arbitrated again. When a matter, whether on a question of fact or a question of law, has
been settled between two parties in one suit or proceeding and the decision is final, either
because no appeal was taken to a higher Court or because the appeal was dismissed, or
because no appeal lies, neither party will be permitted to participate in a future suit or
proceeding between the same parties.

In Lal Chand v. Radha Krishna[4], Chandrachud, J. interpreted the principle of Res judicata in
the following words:

“Section 11 is long settled, is not comprehensive and the principle which instigates that
section can be extended to cases which do not fall strictly within the letter of the law….. The
principle of res judicata is accepted in larger public interest which requires that all litigations
must, sooner or later, come to an end. The principle is also based in equity, justice and good
conscience which requires that a party which has once succeeded on an issue should not be
allowed to be intimidated by a multiplicity of proceedings involving determination of the
same issue”.

Thus, it can be said that doctrine of res judicata is a rule of universal law pervading every
well-regulated system of jurisprudence.

The doctrine of res judicata is compiled in Section 11 of the Civil Procedure Code.

Res Judicata (Section 11)

No Court shall try any suit or issue in which the matter directly and extensively in issue has
been directly and extensively in issue in a former suit among the same parties, or among
parties under whom they or any of them claim, litigating under the same title, in a Court
competent to try such suit later or the suit in which such issue has been raised later, and has
been heard and finally decided by such a Court.

Explanation I: The expression ‘former suit shall mean a suit which has been decided earlier
to the suit in question whether or not it was appointed prior thereto.

Explanation II: For the purposes of this section, the appropriateness of the Court shall be
determined irrespective of any provisions as to a right of appeal from the decision of such
Court.

Explanation III: The matter above mentioned to must in the former suit have been asserted
by one party and either renounced or admitted, precisely or impliedly, by the other.

Explanation IV: Any matter which might or must have been made ground of defence or
attack in such a former suit, shall be considered to have been a matter directly and
substantially in issue in such suit.
Explanation V: Any relaxation claimed in the plaint, which is not specifically granted by the
decree, shall, for the purposes of this section be deemed to have been refused.

Explanation VI: Where persons litigate bona fide in respect of a public right or of a private
right alleged in common for themselves and others all persons interested in such right shall,
for the purposes of this section, be deemed to allege under the persons so litigating.

Explanation VII: The provisions of this section shall administer to a proceeding for the
execution of a decree and references in this Section to any suit, issue or former suit shall be
explained as references, respectively, to a proceeding for the execution of the decree,
question arising in such proceeding and a former proceeding for the execution of that
decree.

Explanation VIII: An issue heard and finally decided by a Court of limited jurisdiction,
competent to determine such issue, shall operate as res judicata in a subsequent suit,
nevertheless that such Court of limited jurisdiction was not adequate to try such subsequent
suit or the suit in which such issue has been subsequently raised.

Object of Res Judicata

“Res judicata pron veriate accipitur” is the full maxim which has over the years decreased to
mere “res judicata”. It is well decided that Section 11 of the Code of Civil Procedure is not
comprehensive of the general doctrine of res-judicata and though the rule of res-judicata as
legislated in Section 11 has some technical aspects the general doctrine is established on
considerations of high public policy to attain two objectives namely, that there must be
finality to litigation and that person should not be harassed twice over with the same kind of
litigation. (Gulam Abbas v. State of Uttar Pradesh[5]).

In Halsbury’s Laws of England[6],’ the following observation regarding Res judicata is stated:

“Res Judicata is a rule of universal law that pervades every well-regulated system of
jurisprudence and is based on two grounds, each of which is represented in a different
maxim of the common law: the first is public policy and necessity, which makes it to the
state’s interest to end litigation; the second is the hardship to the individual of being vexed
twice for the same cause.”

Nature and Scope of Res Judicata

The doctrine of res judicata, i.e., rule of conclusiveness of a judgment is

established on three maxims.

(i) Nemo debet bis vexari pro una et eadem causa (No man should be vexed twice for the
same cause).

(ii) Interest republicae ut sit finis litium (It is in the interest of state that there should be an
end to litigation).
(iii) Res judicata pro veritate accipitur (A judicial decision must be accepted as correct).

The first maxim is based on the approach of private justice. It looks to the interest of
litigants. The principle of res-judicata is expected not only to avoid a new decision but also
to avoid a new investigation so that the same person cannot be harassed again and again in
different proceedings upon the same question.

The second maxim is established on public policy that there should be an end to litigation
otherwise if suits were permitted to be filed endlessly for the same cause of action it would
be plainly absurd for the existing Courts to cope with ever growing litigation.

The third maxim is also based on public policy, that judicial decisions must be acknowledged
as correct. In other words, it executes a rule of conclusiveness of judgments as to the points
decided in every subsequent suit between the same parties.

The doctrine of res judicata is established on the principles of justice, equity and good
conscience. The doctrine of res judicata is a rule of procedure and not substantive law. The
bar of res judicata is mandatory and cannot be avoided by a party except by invoking the
Section 44 of Indian Evidence Act, 1872 on the grounds that the judgment was obtained by
fraud or collision or was without jurisdiction.

The issue of res judicata is a combination of legal and factual issues. The bar not only applies
to the decision itself, but also to all facts and circumstances in the case as necessary steps in
laying the foundation for that decision.

In Jaswant Singh v. Custodian of Evacuee Property[7], it was held that in order to determine
the question whether a subsequent proceeding pending is barred by res judicata, it is
essential to examine the question with reference to the (i) forum or ability of the Court; (ii)
parties or their representatives, (iii) matters in issue, (iv) matter which ought to have been
made ground for attack or justification in the former suit and (v) the final decision.

In Management of Indian Aluminium Co. Ltd. v. Nagaiah [8], it was held that Section 11 of
the Code is not comprehensive of res judicata. The administration of the doctrine is not
restricted to Code of Civil Procedure but extends to all litigations including Industrial
Disputes cases. The doctrine is established in consideration of high public policy.

Conditions for Application of Res Judicata

In order to establish a matter as res judicata, the following conditions must be fulfilled :-

(i) There must be two suits, one former suit and other consecutive suit.

(ii) The Court which determined the former suit must be competent to try the subsequent
suit.

(iii) The matter directly and substantially in issue must be the same either literally or
constructively in both the suits.
(iv) The matter directly and subsequently in issue in the subsequent suit must have been
heard and finally decided by the Court in the former suit.

(v) The parties to the suits or the parties under whom they or any of them claim must be the
same in both the suits.

(vi) The parties in both the suits must have prosecuted under the same title.

Exceptions to the Plea of Res Judicata

Judgment in original suit acquired by fraud – if a court assumes that the judgment of former
suit is obtained by fraud, then the doctrine of the res judicata is not used.

When the previous SLP is dismissed – When a special leave petition is dismissed without
decision then res judicata should not be used. For obtaining Doctrine of Res Judicata, the
formal suit should be decided by the competent court.

A different cause of action – Section 11 will not be used when there is a different cause of
action in the consecutive suits. The court cannot bar a consecutive suit if it contains a
different cause of action.

When there is Interlocutory Order – Interlocutory order is the interim order, decree or
sentence delivered by the court. A principle of the Res Judicata will not be used when an
interlocutory order is passed on the former suit. It is because in Interlocutory order
immediate relief is given to the parties and it can be modified by subsequent application
and there is no finality of the decision.

Waiver of a decree of Res Judicata – Decree of Res Judicata is a plea in the bar that must be
waived by the opposing party. If a party fails to raise the defense of res judicata, the case
will be determined in his favor. It is the responsibility of the opposing party to inform the
court of the outcome of the previous suit. If a party fails to do so, the matter is settled
against him.

Court not competent to decide – When the former suit is settled by the court who has no
jurisdiction to decide the matter then the doctrine of res judicata is not used to the
subsequent suit.

When there is a change in Law – When there is a change in the law and new laws bring new
rights to the parties then such rights are not prohibited by Section 11.

When the court fails to apply Res Judicata

If the court fails to apply for res judicata and instead issues a contrary judgement on the
same issue, the matter will be sent to the third court, which will apply res judicata based on
the prior suit’s decision. Thus it is the function and authority of the parties to the suit to
bring the former case to the attention of the court and the Judge will determine on whether
a plea of Res judicata should be allowed or not.
Conclusion

Res Judicata is a legal notion that exists in all jurisdictions around the world. The Res
Judicata concept has become an important feature of the Indian legal system. The court can
use Res Judicata when it believes the case has already been determined by the previous
suit, according to Section 11 of the Civil Procedure Court, 1908.

This doctrine applies not only to civil courts in India, but also to administrative law and other
legislation. The finality concept, on which the res judicata plea is based, is an issue of public
policy. Res Judicata is a legal doctrine that prevents repetitive judgements and protects the
interests of the other party by limiting the plaintiff’s ability to obtain damages from the
defendant twice for the same injury.
What is the Place of Suing in CPC?

Place of suing in CPC refers to where a lawsuit or legal action should be initiated or filed. It
specifies the jurisdiction and venue where the case should be brought before a court.

The provisions regarding the place of suing are outlined in the Code of Civil Procedure to
ensure that the appropriate Court with the necessary jurisdiction is chosen for the efficient
and fair resolution of the dispute.

The rules and guidelines related to the place of suing help determine which Court is
competent to hear and decide a particular case based on factors such as the nature of the
case, the subject matter, the geographical location of the parties involved, and other
relevant considerations.

Provisions for Place of Suing under CPC

The place of suing in CPC is discussed under Sections 15 to 20. Section 15 pertains explicitly
to the pecuniary jurisdiction of the Court. Sections 16 to 18 address suits concerning
immovable property, Section 19 covers suits related to compensation for wrongs and
movable property, and Section 20 deals with suits concerning other matters.

Section 15: Place of Suing Based on Pecuniary Basis

Section 15 of Code of Civil Procedure 1908- “Court in which suits to be instituted”-“Every

suit shall be instituted in the Court of the lowest grade competent to try it”

Section 15 of the Code of Civil Procedure states that every lawsuit should be initiated in the
Court of the lowest grade with the competence to handle it. This requirement aims to
prevent overburdening of higher courts. While a judgment passed by a higher-grade court
remains valid, a decree passed by an incompetent court would be considered void.

Therefore, a higher court decree cannot be passed without jurisdiction, as clarified by the
Nagpur Bench of the Bombay High Court in the case of Gopal v. Shamrao (1941).

Section 15 serves two primary purposes:

 Reducing the workload of higher courts.

 Providing convenience to the parties and witnesses involved in such lawsuits.
The jurisdiction of a court under Section 15 is determined based on the valuation stated by
the plaintiff in the lawsuit, rather than the final amount for which the Court will pass the
decree.

Kiran Singh v. Chaman Paswan (1954)

In the case of Kiran Singh v. Chaman Paswan (1954), a bench comprising Justices Aiyyar and
T.L. Venkatarama considered the application of Section 11 of the Suits Valuation Act, 1887.
This provision, along with Sections 21 and 99 of the Code of Civil Procedure, 1908, is
founded on the principle that once a case has been fully heard and a judgment has been
pronounced, it should not be overturned solely on technical grounds unless there has been
a miscarriage of justice.

Mazhar Husain And Anr. v. Nidhi Lal (1885)

In the case of Mazhar Husain and Anr. v. Nidhi Lal (1885), heard by the Allahabad High
Court before India’s independence, elucidates the objectives of Section 15 of the Code of
Civil Procedure, 1908. These objectives, as observed in the case, are as follows:

 Avoiding overburdening higher-grade courts with an excessive number of suits.

 Providing convenience to the parties and witnesses involved in such suits.

Tara Devi v. Sri Thakur Radha Krishna Maharaj (1987)

In the case of Tara Devi v. Sri Thakur Radha Krishna Maharaj (1987), the defendant raised a
preliminary objection regarding the valuation of the suit and questioned the Court’s
authority to hear the case in their written statement. The Trial Court determined that the
valuation of the suit fell under Section 7(IV)(c) of the Court Fees Act, 1870, and that the
plaintiff had correctly assessed the leasehold interest of the lessee. The Trial Court
concluded that the plaintiff had the right to determine the value of the relief sought, which
was neither arbitrary nor unreasonable. Consequently, it was decided that the plaintiff had
accurately assessed the claim and paid the appropriate court fees.

In upholding the trial court’s decision, the Supreme Court of India noted that disregarding
objective valuation criteria and assigning a value to the relief sought can be arbitrary and
irrational. In such cases, the Court is justified in intervening.

Section 16 to 20: Place of Suing Based on Territorial Aspects

When examining the territorial jurisdiction of a court, it is important to consider the

following four types of suits:

Suits related to immovable property: These are governed by Sections 16-18 of the Code of
Civil Procedure. These sections outline the rules and guidelines for filing suits concerning
disputes over immovable property.
Suits related to movable property: Section 19 of the Code of Civil Procedure pertains to
suits involving movable property. It lays down the provisions for filing suits related to
disputes over movable assets.

Suits related to compensation for wrongs: Section 19 of the Code of Civil Procedure also
covers suits concerning compensation for wrongs. This section provides guidelines for filing
suits seeking compensation for injuries or damages caused by wrongful acts.

Other suits: Section 20 of the Code of Civil Procedure deals with suits that fall outside the
specific categories mentioned above. It encompasses suits that do not fit into the scope of
immovable property, movable property, or compensation for wrongs.

Place of Suing for Matters Involving Immovable Property (Section 16-18)

Section 16

Section 16 of the Code of Civil Procedure, 1908 states that suits related to specific types of
claims concerning immovable property should be instituted in the Court within the local
jurisdiction where the property is situated. These types of suits include:

 Recovery of immovable property with or without rent or profits,

 Partition of immovable property,
 Foreclosure, sale, or redemption in the case of a mortgage or charge on immovable
property,
 Determination of any other right or interest in immovable property,
 Compensation for wrong to immovable property,
 Recovery of movable property that is currently under distraint or attachment.

However, there is a provision that if a suit seeks relief or compensation for wrong to
immovable property held by or on behalf of the defendant. The relief can be entirely
obtained through the defendant’s obedience, the suit can be filed either in the Court within
the jurisdiction where the property is situated or in the Court within the jurisdiction where
the defendant resides, carries on business, or works for gain voluntarily and effectively.

Subject-Matter Jurisdiction

Subject-matter jurisdiction refers to the authority of a court to hear and decide cases based
on the nature of the issues involved. Different courts are granted jurisdiction over specific
types of lawsuits to handle diverse legal matters. For instance, matters related to insolvency,
probate, divorce, and similar issues cannot be adjudicated by a court of civil judges of the
junior division. If a court lacks subject-matter jurisdiction over a particular case, any decree
or judgment issued by that Court is considered null and void.

Section 16 of the Code of Civil Procedure, 1908 allows invoking jurisdiction in five specific
types of suits, which are as follows:

 Partition of immovable property

 Recovery of immovable property
  Torts to immovable property
 Determination of any right or interest in the property

Sale, foreclosure, or redemption regarding a mortgage or charge on immovable property

In the case of Harshad Chiman Lal Modi v. DLF Universal Ltd. (2005), the Supreme Court
held that an action could be filed under Section 16 of the CPC, 1908, in the jurisdiction
where the immovable property is located, regardless of factors such as the location of the
cause of action or the residence of the parties. In that particular case, since the immovable
property was in Gurgaon (Haryana), the Delhi High Court lacked jurisdiction to hear the
case.

Section 17 of the CPC

Section 17 of Code of Civil Procedure 1908 states, “Suits for immovable property situate
within the jurisdiction of different Courts”.

In cases where the immovable property is situated within the local jurisdiction of different
courts if a lawsuit is filed seeking compensation or relief for wrongs caused to the
immovable property, it can be brought before any court within the jurisdiction where a
portion of the property is located. However, it is important to note that the Court hearing
the case will have cognizance over the entire claim, considering the significance of the
subject matter of the suit.

Section 18

Section 18 of Code of Civil Procedure 1908 deals with “Place of institution of suit where local
limits of jurisdiction of Courts are uncertain”.

(1) Where it is alleged to be uncertain within the local limits of the jurisdiction of which of
two or more Courts any immovable property is situate, any one of those Courts may, if
satisfied that there is ground for the alleged uncertainty, record a statement to that effect,
and thereupon proceed to entertain and dispose of any suit relating to that property, and its
decree in the suit shall have the same effect as the property situated within the local limits
of its jurisdiction:

Provided that the suit is one with respect to which the Court is competent as regards the
nature and value of the suit to exercise jurisdiction.

(2) Where a statement has not been recorded under sub-section (1), and an objection is
taken before an Appellate or Revisional Court at a decree or order in a suit relating to such
property was made by a Court not having jurisdiction where the property is situate, the
Appellate or Revisional Court shall not allow the objection unless in its opinion there was, at
the time of the institution of the suit no reasonable ground for uncertainty as to the Court
having jurisdiction with respect thereto and there has been a consequent failure of Justice.

When there is uncertainty regarding the local jurisdiction of courts in relation to immovable
property, a court can record a statement and proceed with the case. The decree issued by
that Court will be effective as if the property was within its jurisdiction. However, suppose
no statement is recorded and an objection is raised before a higher court. In that case, the
objection will only be entertained if there is no reasonable ground for uncertainty when
filing the suit, resulting in a miscarriage of justice.

Hakam Singh v. Gammon (India) Ltd. (1971)

In the case of Hakam Singh v. Gammon (India) Ltd. (1971), the Supreme Court of India dealt
with the issue of how the trial of a suit should proceed when multiple courts have
jurisdiction over it. The defendant, a firm incorporated under the Indian Companies Act, had
its main place of business in Bombay and had entered into a contract with the plaintiff that
included a provision for arbitration and specified that disputes would be resolved exclusively
in Bombay courts. The plaintiff objected to this restriction, arguing that it was against public
policy.

The observations made by the Supreme Court, in this case, are as follows:

Section 41 of the Arbitration Act, 1940, incorporates the entire Code of Civil Procedure,
1908, for actions under the Act. Therefore, the Code of Civil Procedure, 1908 governs the
jurisdiction of courts to consider arbitration proceedings and issue awards under the
Arbitration Act, 1940.

Under Section 20(a) of the Code of Civil Procedure, the respondent company, with its major
place of business in Bombay, can be sued in the courts of Bombay.

Parties cannot confer jurisdiction on a court through an agreement if the Code of Civil
Procedure does not confer such jurisdiction. However, if two courts have jurisdiction to try a
suit under the Code, an agreement between the parties that the dispute be handled in one
of those courts is not against public policy.

The agreement between the parties, stipulating that the courts in Bombay alone shall have
jurisdiction to try the arbitration proceedings, is binding since the courts in Bombay possess
jurisdiction under the Code of Civil Procedure, 1908, in this matter.

In summary, the Supreme Court held that the agreement between the parties, conferring
jurisdiction on the courts in Bombay to handle the arbitration proceedings, was valid and
enforceable as the Bombay courts had jurisdiction as per the Code of Civil Procedure, 1908.

M/s. Exl Careers and Another v. Frankfinn Aviation Services Private Limited (2020)

In the case of M/s. Exl Careers and Another v. Frankfinn Aviation Services Private Limited
(2020), the Supreme Court of India examined the language of Order VII Rule 10-A in
comparison to the language used in Section 24(2) and Section 25(3) of the Code of Civil
Procedure, 1908. The Court noted that there is a difference in the discretion provided to the
Court under Sections 24(2) and 25(3), which allows for the retrial or continuation of
proceedings from the point of transfer or withdrawal. On the other hand, the scheme
outlined in Order VII Rule 10 along with Rule 10-A does not grant such discretion. Instead,
the proceedings must begin anew.
This observation by the Apex Court highlights the contrasting approaches between the
provisions of Section 24(2) and Section 25(3) that enable the Court to retry or continue
proceedings, and the requirement under Order VII Rule 10, including Rule 10-A, where the
proceedings must commence afresh.

Place of Suing in CPC for Matters Involving Immovable Property (Section 19)

Section 19 of Code of Civil Procedure 1908 deals with “Suits for compensation for wrongs to
person or movables”.

In cases where a suit involves compensation for a wrong done to a person or movable
property, if the wrong occurred within the jurisdiction of one Court and the defendant
resides, carries on business, or personally works for gain within the jurisdiction of another
court, the plaintiff has the option to file the suit in either of the mentioned courts.

For instance, if Raj, who resides in Kolkata, commits a wrongful act against Suraj, who
resides in Gujarat, Suraj can choose to file the lawsuit in either the Court in Kolkata or the
Court in Gujarat, but not in a third unrelated court like Delhi. This provision allows the
plaintiff to select the Court based on their convenience or strategic considerations when the
wrong and the defendant’s location fall under different court jurisdictions.

Section 20: Place of Suing in CPC for Other Suits

Section 20 of Code of Civil Procedure 1908 deals with “Other suits to be instituted where
defendants reside or cause of action arises”

“Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local
limits of whose jurisdiction-

(a) the defendant, or each of the defendants where there are more than one, at the time of
the commencement of the suit, actually and voluntarily resides, or carries on business, or
personally works for gain; or

(b) any of the defendants, where there are more than one, at the time of the
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 work for gain, as
aforesaid, acquiesce in such institution; or

(c) the cause of action, wholly or in part, arises.

Explanation I.-Where a person has a permanent dwelling at one place. Also, a temporary
residence at another place, he shall be deemed to reside at both places in respect of any
cause of action arising at the place where he has such temporary residence.

Explanation II.-A corporation shall be deemed to carry on business at its sole or principal
office in {Subs. by Act 2 of 1951, s.3, for “the States”.} [India] or, in respect of any cause of
action arising at any place where it has also a subordinate office, at such place.”
Section 20 of the Code of Civil Procedure is a residuary section that addresses situations
where the cause of action arises from a breach of contract or business transactions.
According to this section, if there is a breach of contract or a cause of action within the
jurisdiction of one Court, or if the defendant voluntarily resides, carries on business, or
works for personal benefit within the jurisdiction of another court, the plaintiff has the
option to file the suit in either of those courts.

For example, let’s consider a scenario where Rohit, a clothing manufacturer, is based in
Sonepat, and Sonam, a clothing retailer, is based in Gandhinagar. Through her agent, who
resides in Bangalore, Sonam enters into a transaction with Rohit. In such a case, the suit can
be filed either in Sonepat, where the cause of action originated, or in Gandhinagar, where
Sonam resides.

Section 20 provides flexibility to the plaintiff by allowing them to choose the Court that is
most convenient or beneficial for their case when the cause of action or the defendant’s
location falls under the jurisdiction of different courts.

Section 21: Objections to Jurisdiction for Place of Suing

Section 21 of Code of Civil Procedure 1908 “Objections to Jurisdiction”

“No objection as to the place of suing shall be allowed by any Appellate or Revisional Court
unless such objection was taken in the Court of first instance at the earliest possible
opportunity and in all cases where issues are settled at or before such settlement, and
unless there has been a consequent failure of justice.”

Conclusion

The concept of the place of suing in CPC pertains to where a lawsuit should be instituted or
filed. It is essential to determine the appropriate Court with the necessary jurisdiction and
venue to resolve the dispute efficiently. The CPC provides provisions and guidelines to
identify the Court of competent jurisdiction based on factors such as the case’s nature, the
parties’ geographical location, and the subject matter. Section 15 of the CPC emphasizes
that a suit must be instituted in the Court of the lowest grade competent to handle it, thus
preventing the overburdening of higher courts.

Sections 16 to 20 of the CPC further clarify the specific situations where suits related to
immovable property, compensation for wrongs, or other matters should be filed—
additionally, Section 18 addresses cases where the local limits of jurisdiction are uncertain.

The interpretation of these provisions by the Supreme Court has provided insights into the
significance of subject-matter jurisdiction, objections related to territorial or pecuniary
jurisdiction, and the relevance of waivers and dispute resolution methods like arbitration.
Order 46 and 47 from book

Introduction

In order to understand concepts such as Reference, review and revision, as per Code of Civil
Procedure, 1908 (CPC), a party, who is offended by the decision of the court, can reach out
to higher court by way of appeal against the decision given by the trial court/lower court. In
case of appeal, the entire judgement is scrutinized and heard again by the higher authority.
However, in the case, where there is a prima facie error on technical or procedural ground,
the parties are not required to file a fresh case and appeal. In such cases, CPC has the
provision of reference review and revision under section 113, 114 and 115 of CPC
respectively, which shall be discussed in detail in this article.

Synopsis
Every human being commits a mistake and judges are also human beings. So, the provisions
of reference, review and revision are given under the Civil Procedure Code in order to
maintain the fairness and accuracy of the justice system.

Reference

Section 113 of Civil Procedure Code deals with the provision of reference. Under the
provision of Section 113, a lower or subordinate court can reach out to higher court for the
doubt in order to avoid the misinterpretation of the law which is called reference. Parties
through an application can move the reference to the High court. Lower Court can apply the
provision of reference suo-moto in case of any doubt with respect to any legal provision.
The lower court is not bound to refer to the High Court other than in case of validity of legal
provision. It helps the lower court to avoid commission of error while pronouncing the
judgement. The subordinate court can use its right to reference in the following situation:

1. In case of any question arising in the court at the time of entertaining the suit with
respect to the validity of any act, rules, order, ordinance etc.
2. Where the court has the opinion or feels that any provision of the law is invalid or
not in the power of court (“ultra-virus”).
3. The High Court or Supreme Court must have not made such question on the
provision of law invalid.
4. The court feels that it is important to take the reference of high court for
ascertaining the validity of the provisions mentioned in the law before disposal of
any case.

There can be two types of doubts which need to be referred under this section.

1. In case, the doubt has arisen with respect to any Act or law, it is mandatory for the
lower court to take the reference or opinion from the High court.
2. However, in case the doubt has come up during proceedings, it is not mandatory for
the lower court to take the opinion of the High Court. The lower court can suo-moto
refer to the High Court.

Object

The object behind the provisions of Reference is to empower the subordinate court to
obtain the opinion of the High Court in non-appealable cases when there is a question of
law so that any commission of error could be avoided which couldn’t be remedied later on.

As held in the case of Diwali Bai v. Sadashivdas, the reference must be made before passing
of the judgement of the case.

Conditions for seeking reference

Order 46 of CPC mentions the procedure of making a reference. In order to make a

reference to High Court, subordinate court needs to satisfy the condition mentioned in
Order 46 of Civil Procedure Code which has been produced as follows:
 1. The suit or appeal must be pending before the court while making a reference and
no further appeal from the order of such suit or decree is lying before the court.
2. The question of the validity of provision of law must have arisen during the
pendency of the suit i.e. during proceeding of the suit in the court.
3. When such doubt regarding the validity of the provision of law has arisen, the court
must have been entertaining the suit.

While making the reference, the district court can put the case on stay, or it can pass a
contingent order. The subordinate court, after taking into account the opinion of the high
court where such reference has been made, may pass order or decree.

There are two classes of the question of law on which the subordinate court may entertain
the doubt

1. Questions related to the validity of any Act, Ordinance or Regulations.

2. Any other questions.

Under the second condition, reference is optional but in the first condition i.e., a question
related to any Act, Ordinance or Regulations, reference is obligatory. Reference is
obligatory in such condition when the following conditions are fulfilled:

1. In order to dispose of the case, the decision of such question is necessary.

2. The subordinate court seeking reference is of the view that the Act, Ordinance or
regulation is ultra vires.
3. There is no determination that such Act is ultra vires either by the Supreme Court or
the High Court to which the court is subordinate to.

A reference can be made by the judge only in the case when the judge who is dealing with
that case has a reasonable doubt about it. When any matter is already decided by the High
Court to which the court seeking reference is subordinate to then it is not considered as a
reasonable question of doubt.

Who can apply for reference?

The court of civil judicature can refer the case to the High Court either on an application
made by a party or suo moto. As held in the case of Ramakant Bindal v. State of U.P, no
reference can be made by a tribunal.

Powers and duty of the referring court

A reference can be made in a suit, appeal or execution proceeding pending before the court
only when there is a doubt of law. As held in the case of Banarasi Yadav v. Krishna Chandra
it was held that the question of law about which the subordinate court is doubtful, must
have actually been called upon in the case for adjudication and it shouldn’t be a
hypothetical question.

Therefore, no reference can be made on a hypothetical question or a point that may or may
not arise in future. But, if the situation arises it may be considered for reference.
Power and duty of the High Court

The High has consultative jurisdiction in this context. When reference is sought from the
High Court and while dealing it the High Court is not bound to decide only the question of
law in doubt. As held in the case of S.K. Roy v. Board of Revenue, the High Court can
consider the new aspects of law also if any new aspect arises.

To answer the question for which reference is sought totally upon the discretion of the High
Court as discussed under Order 46 of the Code. The High Court may answer the question
and send the case back to the referring court to dispose of it in accordance with the law. It is
also upon the discretion of the High Court to refuse to answer the question and it has even
power to quash it.

Effects of Reference

In the case of L.S Sherlekar v. D.L. Agarwal, it was held that when the reference is sought
from the High Court and the decree is confirmed if the High Court answers the question in
favour of the plaintiff. If the answer of the High Court is against him, the suit is dismissed.

Rule 3 of Order 46 states the provision that after hearing the parties if the High Court
desires, it shall decide the referred points and transmits a copy of its judgement to the
subordinate court which shall dispose of the case in reference to said decisions.

Review

Section 114 of Civil Procedure Code defines the provision of review. In case of review, the
party who is not happy or aggrieved with the order of the court 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.

It was held in case of Ram Baksh v. Rajeshwari Kunwar, AIR 1948 AII 213 that the option of
review is still there even if the appeal has been dismissed on any ground.

Order 47 of the CPC defines the procedure to be followed in case of review. In the following
situation, the application for review can be filed by the parties:

1. The decree or judgement is appealable however, no appeal has been preferred

under the law.
2. In case of no provision for appeal has been mentioned in the law for certain decree
or judgement.
3. The Court of Small Causes has passed the decision.

The law defines certain grounds on which application for review can be filed:

1. Where there are new discoveries of the facts, which were not in knowledge or could
not produce at the time of passing of decree due to ignorance.
 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.
3. Any other case, in which case the delusion of the court can be considered as
sufficient ground.

The Apex court in the case of S. Nagraj & Ors. V. State of Karnataka & Anr., 1993 Supp (4)
SCC 595 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.

Time limit: Article 124 of Limitation Act provided that once the decree or order is passed,
parties shall file the application within 30 days from the date of passing such decree. The
decree or order which is passed after review shall be final and binding to the parties. It is
important to note that the entertaining the application filed by parties for review is at the
discretion of the court. Court can either entertain or reject the application. In case, the court
does not find any sufficient ground to entertain an application, it can reject the same.

As defined in the law, even the Supreme Court can review its judgement under Article 137
of the constitution of India.

Object

Any human being can make a mistake or error and so do the judges. So, the procedure of
Review has been embedded in the legal system to correct the mistakes and prevent any
miscarriage of justice as held in the case of S.Nagraj v. State of Karnataka. The review
application is not an appeal or revision made to the superior court, but it is a request to
recall and reconsider the decision made before the same court.

Circumstances when a review petition is maintainable

A review petition is maintainable before the court under the following circumstances:

When no appeal lies in the case

According to section 114 of the code, when no appeal lies from an order or a decree then it
can be reviewed by the Court. In the case of Ganeshi Lal v. Seth Mool Chand, it was held
that taking into consideration sub-clause(c) of Section 114, the application of review against
a decree passed by a Small Causes Court is eligible.

Even if an appeal is dismissed on the ground of being incompetent or time-barred, the party
can go for review procedure as held in the case of Ram Baksh v. Rajeshwari Kunwar.

When appeal lies in a case but not preferred

When the provision of appeal is available but it is not preferred by the aggrieved party then
also a review petition is maintainable. As held in the case of Sitaramasastry v. Sunderamma
an application for review can be presented before the court only till no appeal is preferred
against that order. The court cannot entertain an application for review when an appeal is
already instituted before making an application for review.

Reference from Small Causes Court

The court may review the judgement on a reference made by the Small Causes Court.

Grounds of Review

There are certain grounds laid down under Rule 1 of Order 47 on which an application made
for the review of a judgement is maintainable:

 On the discovery of new and important matter or evidence

A court can review its judgement when some new and important matter or evidence is
discovered by the applicant which couldn’t be produced or was not available at the time of
passing the decree.

 When the mistakes or errors are apparent on the face of the record

When there is an apparent error on the face of record then the court may review its
judgement or decree. As decided in the case of Karutha Kritya v. R. Ramalinga Raju, the
error includes an error of fact as well as an error of law.

 Other sufficient reason

The last ground for review is any sufficient reason. Any sufficient ground considered for
review by the court comes under this ground. It could be any reason which the court feels
sufficient to review its judgement in order to avoid a miscarriage of justice.

In the case of Bank of Bihar v. Mahabir Lal, the Supreme Court laid down certain reasons
which can be considered as a sufficient reason for review such as- when there has been any
misapprehension of the true state of circumstances, or when the party has not been given
fair chance to produce any statement or evidence, or no notice was sent to the party, or the
court has failed to consider a material fact or evidence, or the court has omitted any
statutory provisions.

The limitation period for Review

The limitation period for filing an application for review as given under Article 124 of the
Limitation Act, 1963 is thirty days for a court other than the Supreme Court from the date
of decree or order.

Is the power to review an inherent power?

It is a well-settled matter that the power to review is not an inherent power. It is required to
be either expressly conferred by law or by necessary implications.
Inherent power to review of a Court of plenary jurisdiction

The Court of plenary jurisdiction such as a writ court, in order to prevent a miscarriage of
justice and to correct grave errors, has been empowered to review its orders. On the leading
case law regarding this context is Shivdeo Singh v. State of Punjab in which the same was
discussed.

Being the final court of the country who is the last and final to decide on a matter, it has
been empowered to review and to undo injustice. In exceptional circumstances, it can even
exercise the power suo moto.

Who can make a review?

As discussed till now, a review is the reconsideration of the same matter by the same judge
who has decided the matter. If the judge who decided is present in the court, then he alone
has jurisdiction to review the matter decided by him. He is considered to be the best to
reconsider the case as only he will be able to remember what arguments were done and
what reason he used to decide that case.

However, if there is a situation that the same “judicial officer” cannot be available and any
unavoidable reason might prevent the judge who decided the case to review it, then in such
exceptional circumstances any judge or court of the concurrent jurisdiction can review it
and give decision as held in the case of Reliance Industries Ltd. v. Pravinbhai.

Revision

If we go to the literal meaning, “to revise” stands for “to look again” or “to look repeatedly
at” or “to go through a matter carefully and correct where necessary”. The High Court has
been empowered with the revisional jurisdiction under section 115 of the Code of Civil
Procedure,1908.

Object

The object behind empowering the High Court with revisional jurisdiction is to prevent
arbitrary illegal or irregular exercise of jurisdiction by the subordinate court. Under section
115 the 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 as held in the case of Major S.S
Khanna v. Brig. F.J. Dillion.

But, the judges of the subordinate court have absolute jurisdiction to decide a case and
even when they have wrongfully decided a case, they do not commit any “jurisdictional
error”. With the power of revision, the High Court can correct the jurisdictional error when
committed by the subordinate court. The provision of revision provides an opportunity to
the aggrieved party to get their non-appealable orders rectified.

Conditions
Section 115 of the Code of Civil Procedure Code lays down all the conditions when the
High Court can exercise its revisional jurisdiction:

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:

1. Exercise of jurisdiction which is not vested to that court by law., or

2. It has failed to exercise the vested jurisdiction, or
3. Illegal exercise of the vested power or with immaterial irregularity.

The High Court is not entitled to vary or reverse the order or decision of the subordinate
court unless such order is in favour of the party who has applied for revision. Also, the
revisional jurisdiction is not to be exercised if in that matter appeal lies to the High Court.

So, by analysing section 115, we can observe that the revision is done mainly on
jurisdictional errors by the subordinate Court.

Can the power of Revision be exercised if an alternative remedy is available?

The exercise of revisional jurisdiction is upon the discretion of the court and the parties
cannot claim it as a right. In the leading case of Major. S.S. Khanna v. Brig. F.J. Dillion, it was
held by the Supreme Court that the court has to take into consideration several factors
before exercising the revisional jurisdiction. One of the that is considered is the availability
of an alternative remedy. When an alternative and efficacious remedy is available to the
aggrieved party, then the court may not exercise its revisional power under section 115 of
the Code.

The limitation period for Revision

According to article 131 of the Limitation Act, 1963 for a revision of the decree or order, the
limitation period is 90 days. The revision application is required to be made before the High
Court within the limitation period.

Distinctions

Reference and Review

S.No. Reference Review

The case is referred to the High Court by the
For review, the application is made by
1. subordinate court and not by the party for
the aggrieved party.
reference.
A review is done by the court which
The matter of reference can be decided by the
2. has passed the decree or made the
High Courts only.
order.
3. Reference can be made only when the suit, A review can be done only after the
 appeal or execution proceeding is pending. decree or order is passed.
Grounds of reference is different than a
4. Grounds for review are different.
review.

Reference and Revision

S.No. Reference Revision

For revision, the application is made to the
For reference, a case is transferred by a
1. High Court either by the aggrieved party of
subordinate court to the High Court.
by High Court suo moto.
The grounds for reference is when there
The ground for revision is jurisdictional
2. is reasonable doubt on the question of
errors by the subordinate court.
law by the subordinate court.

Review and Revision

S.No. Revision Review

Revisional jurisdiction can be exercised A review is done by the court who has
1.
only by the High Court. passed the order or decree itself.
Revisional power is exercised when no Review of an order or decree can be done
2.
appeal lies to the High Court. even if an appeal lies to the High Court.
The High Court can exercise the revisional For review, an application is required to
3.
power even suo moto(by its own motion). be filed by the aggrieved party.
The grounds for revision is mainly on
4. The grounds for revision are different
jurisdiction errors.
The order granting the review is The order passed on exercising revisional
5.
appealable. jurisdiction is not appealable.

Reference and Appeal

S.NO Reference Appeal

The power of reference is vested in The right to appeal is the right which has been
1.
the court. conferred to the parties.
An appeal can be made to any court which
Reference can always be made to
2. superior and it does not need to be only High
the High Court.
Court.
The grounds for reference are a
The grounds of appeal are much wider than
3. substantial question of law and it is
grounds for reference.
narrower.
Reference can be made only when An appeal can be filed only after the decree is
4. the suit, order or execution is passed or appealable order has been made by the
pending. subordinate court.

Review and Appeal

S.No. Review Appeal

 A review can be made only to the same An appeal can be filed to any superior
1.
court. court.
The review is a procedure of An appeal is the procedure of
2. reconsideration of the same matter by the consideration of the matter by the
same judge of the same court. different judge of the superior court.
Grounds of review are narrower than the Grounds for appeal are wider than the
3.
grounds for appeal. grounds of review.
In an appeal, the provision for the second
There is no provision for the second
4. appeal lies when sufficient grounds are
review.
present.

Revision and Appeal

S.No. Revision Appeal

An appeal can be made to any court
An application for revision lies only to the
1. superior to the court passing the
High Court.
decree or order.
A revisional application can be made to the
High Court for any decision made by the An appeal lies only from the decree or
2.
subordinate court when no appeal lies for order passed by the subordinate court.
such decision.
Revisional power of the High Court is totally The right to appeal has been provided
3.
discretionary. by the statue as a substantive right.
The grounds for revision is the jurisdictional An appeal lies on the question of fact
4.
error. or question of law or, both.
For an appeal a memorandum of
For revision, filing an application is not
appeal to be filed by the aggrieved
5. necessary. The high court may exercise the
party before the superior court is a
revisional power as suo moto.
must.

Conclusion

The provisions for reference, review and revision provided under the Code of Civil
Procedure are different ways by which the court can work more efficiently for fairness of
justice system even when there is no provision of appeal.

Whenever a matter is decided is the Court and the judge passes a decree or order then
there might be circumstances where there has been any mistake or error, or a party is
aggrieved by the order or decree or, there can also be circumstances where the subordinate
court is doubtful on such question of law. And, a general rule once a judgement is
pronounced it cannot be altered by the same court.

So the provision of review, reference and revision have been inserted under the legal
system to avoid a miscarriage of justice.
Where the reference is sought by the subordinate court itself when there is a doubt on the
question of law to the High Court, revisional power is exercised when there is a jurisdictional
error by the subordinate court. The power of review is vested in the subordinate court itself
which has passed the decree or order.

The process of Review, reference and revision are also very different from Appeal or Second
appeal. The subordinate court can seek reference from the High Court on its own but for
review or revision, an application is required to be filed. So, all three procedures have
different grounds, conditions and procedures.
Introduction

A decree is passed by the court under the Code of Civil Procedure (hereinafter referred to as
CPC) to decide the rights and liabilities of the persons in a matter of controversy. The person
in whose favour a decree is passed is called decree-holder and against whom the decree is
passed is judgement debtor. There are various ways under civil law by which a decree can
be passed. One such way is “arrest and detention”. The law relating to arrest and detention
in the CPC has been dealt with under Section 51 to 59 and Rules 30 to 40 of Order XXI.

Nature and scope

The provision is remedial in nature. It seeks to provide a remedy to the decree-holder where
a suit has been decided in his favour. Such a remedy can be in the form of arrest and
detention of the judgement debtor if he fails to satisfy the decree passed against him.

The provision applies to every person against whom the decree is passed under the Code.
When a decree is passed in favour of a person, then that person has to move to the court
for execution of that decree. The court then according to the provisions of the Code can
order for arrest and detention of the judgement debtor.

When arrest and detention may be ordered?

Under Section 51(c) of CPC, it is given that when a decree-holder moves to the court for
executing a decree, the court can execute such decree by the arrest and detention of the
judgement debtor.

The decree for arrest and detention may be passed in the following cases given under Order
XXI:

 Under Rule 30, a decree for the payment of money can be executed by the arrest and
detention of the judgement debtor.
 Under Rule 31, where the decree is for a specific moveable party, it can be executed
by the arrest and detention of the judgement debtor.
 Under Rule 32, where the decree is for specific performance of the contract or an
injunction, the court can execute the decree by arrest and detention of the
judgement debtor.

Who cannot be arrested?

There are certain classes of persons that are exempted from arrest and detention under the
various provisions of CPC. Such persons include:
 1. Women, as per Section 56,
2. Judicial officers, as per Section 135(1),
3. Where a matter is pending, their pleaders, mukhtars, revenue-agents, and witnesses
acting in obedience to a summons, under Section 135(2),
4. Members of legislatures, as per Section 135A,
5. Classes of persons, whose arrest according to the State Government, might be
attended with danger or inconvenience to the public, under Section 55(2), and
6. Where the decretal amount is less than two thousand rupees, under section 58(1A).

Procedure to be followed

The procedure to be followed for arrest and detention is provided under Section 55. It says
that a judgement debtor can be arrested at any hour or any day during the execution of a
decree, and after such arrest, the person must be presented before the court. However,
there are certain restrictions regarding entry and time. They are as follows:

1. That no dwelling house shall be entered after sunset and before sunrise.
2. That no outer door shall be broken in order to enter the house unless such a house is
the occupancy of the judgement debtor, in case he refuses to prevent access thereto.
3. Where the room is in occupancy of a woman who is not the judgement debtor and
does not appear in public due to the customs, the officer shall give reasonable time
and facility to her to withdraw therefrom.
4. Where there is a decree for the payment of money, and the judgement debtor pays
the full decretal amount and the costs of the arrest to the arresting officer, he shall
not be arrested.

Notice

Under Order XXI Rule 37, a person who is to be arrested shall be given a show-cause notice
to appear before the court and give reasons as to why he should not be committed to the
civil prison in execution of the decree. However, such notice is not necessary if the court is
satisfied, by affidavit or otherwise, that the effect of delaying the execution can lead to
absconding of the jurisdiction by the judgement debtor. If the judgement debtor does not
appear before the court after serving of the notice, if the decree-holder so requires, the
court shall issue a warrant to arrest such person.

The objective of serving notice is to prevent the arrest and detention of an honest debtor
who is not able to pay the debt due to some sufficient cause. The procedure of giving show
cause notice is the acknowledgement of the rule of natural justice that any person shall not
be condemned unheard.

Under Order XXI Rule 40, it is stated that if the person appears before the court after the
issuance of the notice as given under Rule 37, the court shall hear the decree-holder for the
execution of the decree and then give the chance to the judgement holder for showing as to
why he should not be arrested.
Where a judgement debtor appears before the court and shows the reasonable cause for
his inability to pay the decretal amount and the court is satisfied that he is unable to pay,
the court may reject the application of the arrest. However, if the judgement debtor could
not satisfy the court against the order passed against him for arrest and detention, the court
may commit him to the civil prison, subject to the provisions of the code.

It has been held in the case of Mayadhar Bhoi v. Moti Dibya, where a money decree has not
been paid by the judgement debtor within thirty days since that order was made, the court
on the application by the decree-holder require the judgement debtor to give an affidavit
stating the particulars of his assets, and if the person disobeys such order, he can be
detained for three months.

Where an inquiry has been passed in accordance with subrule 1 of Order XXI Rule 40, the
court may after the conclusion of the inquiry, subject to the provisions given in Section 51
and to the other provisions of the code, order the person to be committed to the prison and
shall order for arrest of the person if he is not already arrested.

Power and duty of the court

Section 55 states that where a judgement debtor is arrested in execution of a decree for the
payment of money and is presented before the court, the court shall inform him to declare
himself as insolvent and he can be discharged if he has not done any act in bad faith
regarding the subject of the application and if he complies with the law of insolvency which
is in force at that time.

According to Order XXI Rule 39, a judgement debtor shall not be arrested for the execution
of the decree unless the decree-holder deposits the amount to the court, fixed by the judge,
for the subsistence of the judgement holder, from the time of the arrest until he is brought
to the court. And where such person is committed to the civil prison, the court shall fix the
subsistence as a monthly allowance according to Section 57, or where such scales are not
fixed, the court shall fix as it considers sufficient for that class of the person.

In the case of Amulya Chandra v. Pashupati Nath, the court held that if the judgement
debtor despite having means to pay the decretal amount refuses to pay, he can be detained.
However, it must be checked whether such a person has means to pay and refuses to pay
the amount in bad faith. These provisions were widely explained in the case of Jolly George
Verghese v. Bank of Cochin, where Justice Krishna Iyer stated that a simple default is not
enough, there must be an element of bad faith beyond mere indifference to paying; some
deliberate refusal or the present means to pay a decree or a substantial part of it.

Click here

Recording of reasons

Section 51 says that an order for detaining a person shall not be passed unless, after the
person has been provided with an opportunity of showing cause why he should not be
arrested, the court for reasons recorded in writing must be satisfied:
  That the judgement debtor with the object of delaying the execution of the decree is
likely to abscond of the jurisdiction of the court or has dishonestly transferred,
concealed or removed his property, or has done any other act done in bad faith, or
 That the judgement debtor has the means to pay the amount or a substantial part of
it and refuses to pay the same, or
 That the decretal amount has to be paid on account of the fiduciary relationship.

Period of detention

Section 58 specifies the period for which a person can be detained, which is decided
according to the amount of the decree which has been passed against him by the court, and
where he has failed to pay that decretal amount. It says that a person cannot be detained
for more than three months if the decretal amount exceeds five thousand rupees and, for
an amount between two thousand to five thousand rupees, such detention cannot exceed
six weeks. If the amount does not exceed two thousand rupees, no order for detention of
the judgement debtor can be made.

Release of judgment-debtor

Under Section 58, every person who has been detained in civil prison shall be released
before the said period of detention on the following grounds:

 Where the decree against him has been fully satisfied,

 Where the amount mentioned in the warrant for his detention has been paid to the
police officer,
 Where the person on whose application the person was detained requests so, or
 Where the person on whose application such detention was made omits to pay
subsistence allowance.

Section 59 provides that a warrant issued by a court for the arrest of the person can be
cancelled anytime if there is some serious illness to the judgement-debtor. And if such
arrest has already been made, and it appears to the court that the person is not in a fit state
of health to be in prison, may order for his release.

Where the judgement debtor has been committed to prison, he may be released:

 By the State Government, if there exists some infectious or contagious disease, or

 By the court which granted the execution;
 Or any court which is superior to the above court, on the grounds of serious illness.

This provision shall be applied liberally since it is a beneficial provision.

Also when a person is released after the completion of the period of the arrest given under
Section 58, the person is not discharged from his duty to pay the decretal amount to the
decree-holder.

Where a person intends to apply to be declared as an insolvent in accordance with Section

55, and furnishes security to the satisfaction of the court, that he will apply for being
insolvent within one month and that he will appear when called for the proceedings related
to the insolvency application or for the execution of the decree of which he was arrested,
the court can release him for such period and if he fails to apply for the application and to
appear, the court can direct the security to be realized that was given by him or commit him
to prison.

Where an inquiry is pending under subrule 1 of Order XXI Rule 40, the court can order the
release of the judgement debtor, upon its discretion if the judgement debtor furnishes the
security to the satisfaction of the court for his appearance before the court.

Also, the court in order to give the opportunity of satisfying a decree to the judgement
debtor, before ordering the detention of the person, under subrule 3 of Order XXI Rule 40,
can provide fifteen days to the judgement debtor for satisfying the decree, by leaving the
person in custody of the police officer or may release him on furnishing security to the
satisfaction of the court, on the condition that the person will appear after the expiration of
the specified period if the decree is not satisfied before the end of the period.

Where the court does not make an order of detention under subrule 3 of Order XXI Rule 40,
it can refuse the application and if the judgement debtor is already under arrest, order for
his release.

Re-arrest of judgment-debtor

Any person that has been released on grounds of serious illness in accordance with Section
59 can be arrested again but the period of detention in aggregate should not be more than
that prescribed by Section 58.

Any person whose period of arrest has been completed as given under Section 58 cannot be
arrested again under the decree in execution of which he was detained in the civil prison.

Any person that has been released in accordance with Order XXI Rule 40 can be re-arrested.

Conclusion

The purpose of arrest and detention is to give relief to a decree-holder and commit the
judgement debtor to the civil prison if he does not pay the decretal amount despite having
means to pay the same. However, it also protects honest debtors, where his inability to pay
is supported by a reasonable cause. The court has to afford the right to be heard to the
debtors in order to ensure proper justice.
Introduction

The litigation consists of three stages, initiation of litigation, adjudication of litigation, and
implementation of litigation. The last stage of litigation, that is the implementation of
litigation is known as an execution. Once a decree or judgment is passed by the court, it is
the obligation of the person against whom the judgment is passed (judgment-debtor), to
give effect to the decree so as to enable the decree-holder to enjoy the benefits of the
judgment.

By execution, a judgment-debtor is compelled to carry out the mandate of the decree or

order. Execution implies giving effect to an order or judgment of a court of justice. When the
decree-holder gets the thing granted to him by judgment, decree or order, the execution is
complete.

Meaning, Nature and Scope

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

Illustration:

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

Execution proceedings under CrPC

In Ghan Shyam Das v. Anant Kumar Sinha, the Supreme Court dealt with the provisions of
the code relating to the execution of orders and decree and stated that the Code contains
elaborate provisions which deal with all questions regarding executability of a decree in all
aspects.
The Court further observed that numerous provisions of Order 21 take care of various
situations providing effective remedies to judgment-debtors, decree-holders and claimant
objectors. In the cases, where provisions are not capable of giving relief inadequate
measures and appropriate time, to an aggrieved party, then filing a regular suit in the civil
court is the solution.

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

Courts which can execute decrees

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

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

1. The court of the first instance;

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

Transfer of decree for execution

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

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

within the jurisdiction of such Court;
2. if the property of judgment-debtor does not come under the jurisdiction of the Court
of the first instance but it comes under the local limits of the jurisdiction of such
Court;
3. if the decree directs delivery or sale of immovable property situated outside the
jurisdiction of the Court which passed the same;
4. if the Court which had passed the decree considers that the decree should be
executed by another court, but it shall record the reasons in writing for doing the
same.

Section 39(2) states that the Court of the first instance may suo motu send it for execution
to any subordinate Court of competent jurisdiction.

The Section further states that if the execution of the decree is against a person or property
outside the territorial jurisdiction of the court passing the decree, then such Court has no
power to execute the decree.

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

Execution of foreign decrees in India

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

What is a foreign judgment and a foreign decree?

Section 2 (6) of the CPC defines a foreign judgment as a judgment of a foreign court. As per
section 2(5) of CPC, a foreign court implies a court which is situated outside India and which
is not established or continued by the authority of the Central Government.
A foreign decree is defined in Explanation II to section 44A of the CPC as a decree or
judgment of such court and which directs that a sum of money is payable. However, such
sum of money shall not be a sum payable in respect of taxes or other charges of a like
nature or in respect of any penalty or fine. It should not include an arbitral award, even if
such an award is enforceable as a decree or judgment.

Foreign judgment or decree needs to be conclusive

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

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

 When it has not been pronounced on the merits of the case;
 When it has been based on a wrong view of international law or a refusal to
recognize the law of India in cases in which such law is applicable;
 When the proceedings carried out while obtaining the judgment are opposed to
natural justice;
 When such judgment has been obtained by fraud;
 When it sustains a claim that had been based on a breach of any law in force in India.

Thus, a foreign judgement or decree shall pass the seven tests mentioned above. Otherwise,
such foreign judgment or decree cannot be enforced in India as such judgment or decree
will not be regarded as conclusive if it fails any of these tests.

Mode of enforcement of a foreign judgment or decree

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

 Where the decree or judgment has been given by a court in a reciprocating territory;
 Where decree or judgment has been given by a court in a non-reciprocating territory.

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

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

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

Therefore, a judgment which has been pronounced by a court of a reciprocating territory

can be enforced in India as an Indian decree by filing an execution application. A certified
copy of a decree of any superior court of a reciprocating territory should be filed in a District
Court, once this is done, the decree shall be executed as if it had been passed by the District
Court of India and the provisions governing execution which are laid down in Order 21 of
the CPC will be applicable to the decree.
While filing the execution application the original certified copy of the decree shall be filed
along with a certificate from the superior court stating the extent to which the decree has
been satisfied or adjusted.

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

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

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

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

Execution of Indian decrees in a foreign territory

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

1. The decree which has to be executed should be of an Indian Court and it should be
for execution in a foreign territory.
2. The Central Government should have established the transferee court in such foreign
territory.
3. The State Government should have declared by notification in the Official Gazette
that this section will apply to the said foreign Court.

The provision, therefore, prescribes the prerequisite conditions for the execution of an
Indian decree outside the country. Therefore, in the absence of either of the aforesaid
conditions in Section 45, an Indian Court has no jurisdiction to send its decree for execution
to a Court not situated in India.

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Execution of decree at more than one place

There is no provision in the Code which prevents a decree-holder from executing a decree
simultaneously at more than one place against the property of the judgment-debtor.

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

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

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

Procedure in execution

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

Section 51

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

Mode of executing decree

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

 By sale of the property with or without the attachment of the property. If the
property is situated within the jurisdiction of the court then it has the power to
attach the property.
 By arrest and detention. However, this mode should not be exercised without giving
a reasonable opportunity to the judgment-debtor, in the form of a show-cause notice
as to why he should not be imprisoned.
 Execution by appointing a receiver
 If any other mode apart from the ones mentioned in clause(a) to (c) needs to be used
in the execution of a decree then clause(e) comes into play.

Section 52

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

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

Section 53

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

Section 54

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

Powers of the transferor court

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

Powers of the transferee court

Under Order 21 Rule 8 of the Code, if a decree under the provisions of section 39 has been
sent for execution to another district, it may be executed by either the district court to
which it was sent or by a subordinate court which has competent jurisdiction, to which the
district court may refer it.

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

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

The Court will have the following powers, namely:—

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

Powers of executing court

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

Mode of executing a decree

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

 By sale of the property with or without the attachment of the property. If the
property is situated within the jurisdiction of the court then it has the power to
attach the property.
 By arrest and detention. However, this mode should not be exercised without giving
a reasonable opportunity to the judgment-debtor, in the form of a show-cause notice
as to why he should not be imprisoned.
 Execution by appointing a receiver.
 If any other mode apart from the ones mentioned in clause(a) to (c) needs to be used
in the execution of a decree then clause(e) comes into play.

Conclusion

It clearly appears from the above discussion, that execution means implementing or
enforcing or giving effect to an order or a judgment passed by the court of justice. The
provisions contained in Order 21 covers different types of situation and provide effective
remedies to the judgment-debtors, claimant objectors and third parties apart from the
decree-holder.

The Code takes care of the rights of judgment-debtors too. Various modes of execution of a
decree are also provided by the Code which includes arrest, detention of the judgment-
debtor, delivery of possession, attachment of the property, by sale, partition, the
appointment of receiver and payment of money etc. Thus, the provisions are rendered
effective or capable of giving relief to an aggrieved party.