Code of Civil

Procedure, 1908
Dr. Manoj Kumar Sharma
Rajiv Gandhi National University of Law,
Punjab
 O seamless web of myriad intricacies,
A constant reminder of colonial fantasies,
As tiny little rules – at each stage- we ungarble,
Thy lovely form is more and more revealed- a marvel!
Purpose, rationale, concept and meaning,
Yet grapple with black-lettered legal reasoning;
How we would love to know every inch of you,
Move effortlessly from Section eleven to Order two;
But many secrets you still hide from us,
To taunt us, tease us and then delight us!
You have a darker side- we do see,
Entangling poor litigants in rule complexity.
Landlords and tenants, husbands and wives,
Merchants and farmers- people with lives.
 You are the lawyer’s burden, the student’s despair,
And many say you simply pretend to be fair.
Can anybody ever fall in love with you?
Read all your sections and then say “I do”?
People wonder, stop and stare,
Seeing me with you- almost everywhere;
They don’t know the times we’ve had together,
Cosy library spots knowing each other,
The pain and suffering and joy we’ve been through,
Reading each other, anew, anew.
So I don’t much care for the laughing hordes,
For you are my princess, sweet princess of Codes

Nanda Kishore (Indian Civil Procedure : Scholarship Urgently

Wanted)
 History of the Code
First code in India by Warren Hastings, on November 3, 1780
Efforts by Sir Charles Wood, President of the Board for affairs
of India to make uniform procedure
1859 – combination of four codes (Madras, Bombay, North-
Western Provinces, Lower provinces of Bengal)
1859 Act revised by Dr. Whitley Stokes, Secretary Govt. of
India and Lord Arthur Hobhouse and new Act of 1877 was
passed
1877 Act was amended in 1879 and later it was replaced by
Act of 1882
New Draft prepared by Select Committee was referred to
Special Committee headed by Sir Earle Richards. The
committee included Dr. Rashbehary Ghose resulting in the
enactment of Act of 1908
 Scheme of the Code
Body of the Code
158 sections
First Schedule
51 Orders
Harmonious construction between two
parts
 Reasons for unique scheme of the
Code

Multiplicity of Procedures
Flexibility vis-à-vis Rigidity
Part X
 Scope, Object and
Interpretation
Procedural/Adjective Law
Objective is to Consolidate the procedure
Interpretation – Processual law is not to be a tyrant
but a servant, not an obstruction but an aid to
justice. Procedural prescriptions are the handmaid
and not the mistress, a lubricant, not a resistant in
the administration of justice {Rani Kusum v.
Kanchan Devi (2005) 6 SCC 705} – too technical
construction to be avoided
 Mahadev Govind Gharge & others v. Special Land
Acquisition Officer, Karnataka, AIR 2011 SC 2439

Procedural laws, like the Code, are intended to control and

regulate the procedure of judicial proceedings to achieve the
objects of justice and expeditious disposal of cases. The
provisions of procedural law which do not provide for penal
consequences in default of their compliance should normally be
construed as directory in nature and should receive liberal construction.
The Court should always keep in mind the object of the statute
and adopt an interpretation which would further such cause in light of
attendant circumstances. To put it simply, the procedural law
must act as a linchpin to keep the wheel of expeditious and
effective determination of dispute moving in its place. The
procedural checks must achieve its end object of just, fair and
expeditious justice to parties without seriously prejudicing the rights of
any of them.
Major Amendments to the
Code
Amendments of 1976 (1-2-1977)
Amendments of 1999 (01-07-2002)
Amendments of 2002 (01-07-2002)
 Hiearchy of Civil Courts
Supreme Court

High Court

District Court

Additional District Judge

Civil Judge (Senior Division)

Civil Judge (Junior Division) {All India Judges'

Association Case reported in 1993 (6) SLR 37 }
 Decree
An Adjudication of a Court
Suit
Formal Expression
Determines the rights of the parties with
regard all or any of the matters in
controversy
Conclusive determination
 Decree ………….
Deemed Decree
Rejection of a Plaint
Restitution (144)
Determination u/s 47 (prior to 1976)
Parshava Properties Ltd. v. A.K. Bose, AIR
1979 Pat. 308 ; MP High Court –
Amendment of No consequence
Allahabad, AP, Bombay, Guahati & Punjab
– held otherwise
Types of Decrees………….
Preliminary Decree

Final Decree

Partly Preliminary and Partly Final

Void and Illegal Decree (Rafique Bibi v. Sayed

Waliuddin, AIR 2003 SC 3789)
 Exclusions from Decree
Appellable Orders
Dismissal for Default
 ORDER 2(14)
Adjudication
Formal Expression
Which is not a Decree
 Decree & Order
Decree – Suit In suit or other proceedings
• Adjudication is Conclusive May or may not be
Conclusive
Preliminary or Final
No such distinction
One decree generally
Numerous Orders
Generally Appeallable
Not generally appeallable
Second Appeal
No Second Appeal
 Judgment 2(9)
Statement of the grounds of Decree/order
Concise statement of facts
Points for determination
Decision thereon
Reasons for decision (O. XX)
 MESNE PROFITS 2(12)
Profits derived by person in wrongful possession
Actually derived or might have derived with
ordinary diligence
Interest is part of Mesne Profits
Does not include profits due to improvements
Future Mesne profits (R.S. Maddanappa v.
Chandramma, AIR 1965 SC 1812)
 Other Definitions
Decree Holder 2(3)

Foreign Court 2(5)

Foreign Judgment 2(6)

Judgment Debtor 2(10)

Legal Representative 2(11)

Public Officer 2(17)

 SAVINGS – Section 4
In the absence of any specific provision to the
contrary

Code shall not limit or affect any special or local law

in force
 Jurisdiction
Juris and Dicto
Types
Basis to determine Jurisdiction
Bank of Baroda v. Moti Bhai, AIR 1985 SC 545
Abdul Gafur v. State of Uttarakhand, 2008(10 )SCC97 - a plea of bar to jurisdiction of
a civil court has to be considered having regard to the contentions raised in the plaint.
For the said purpose, averments disclosing cause of action and the reliefs sought for
therein must be considered in their entirety and the court would not be justified in
determining the question, one way or the other, only having regard to the reliefs
claimed de'hors the factual averments made in the plaint.

Consent and Jurisdiction – Bahrein Petroleum Co. Ltd. V. P.J. Pappu, AIR 1966 SC
634
Want of Jurisdiction and Irregular Exercise of Jurisdiction (Balvant N. Viswamitra
v. Yadav Sadashiv Mule, AIR 2004 SC 4377 – Time barred suit)
Effect of lack of Jurisdiction – Sarup Singh v. U.O.I, AIR 2011
SC 514 – Coram Non Judice
 Jurisdiction ………….
Want of Jurisdiction – Effect
Territorial
Pecuniary
Subject Matter
 Territorial Jurisdiction-
Defamation case
Deepak Kumar v. Hindustan Media Ventures Ltd (2018) 181 AIC 890

It is settled law that defamation takes place because a defamatory statement or article
or any other material is published i.e it comes to the knowledge of the public and the
appellant/plaintiff is brought down in estimation of the right thinking people of the
society. Publication is a sine qua non with respect to defamatory article because
defamation is only caused when the general public comes to know of the defamatory
article. As per the provisions of Sections 19 and 20 CPC a suit seeking
compensation/damages on account of defamation has to be filed where either whole or
part of the cause of action arises or where the defendant(s) reside or work for gain. In
case the defendant is a company then additionally the Court has to consider the
provision of the Explanation to Section 20 CPC read with the ratio of the judgment of
the Supreme Court in the case of Patel Roadways Limited, Bombay v. Prasad Trading
Company (1991) 4 SCC 270 and which holds that merely because a corporate office or
a registered office or a head office of a company is situated at a particular place the
same is not sufficient to confer territorial jurisdiction if the cause of action is found to
have arisen at a place where the defendant company has a branch office.
Jurisdiction of Civil Courts –
s.9
All Suits of Civil Nature
Civil + Nature
Right to an office or property is contested
After 1976 whether such office is religious office or
otherwise. Whether fee attached or not whether attached to
particular place or not

Unless cognizance expressly or impliedly barred {Radha

Kishan v. Ludhiana Municipality, AIR 1963 SC 1547}
Express Bar (S. 15 (a) – (e) of Public Premises (Eviction
of Unauthorised Occupants) Act, 1971
Secretary of State v. Mask &
Co. 1940
The Judicial Committee concluded

...It is settled law that the exclusion of the jurisdiction

of the Civil Courts is not to be readily inferred, but
that such exclusion must either be explicitly expressed
or clearly implied. It is also well settled that even if
jurisdiction is so excluded, the Civil Courts have
jurisdiction to examine into cases where the
provisions of the Act have not been complied with, or
the statutory tribunal has not acted in conformity with
the fundamental principles of judicial procedure.
 Illuri Subbayaa Chetty and Sons v.
State of A.P. (1963) 50 ITR 93 (SC)
Non-compliance with the provisions of the statute to which reference is made
by the Privy Council must, we think, be non-compliance with such
fundamental provisions of the statute as would make the entire proceedings
before the appropriate authority illegal and without jurisdiction. Similarly, if
an appropriate authority has acted in violation of the fundamental principles of
judicial procedure, that may also tend to make the proceedings illegal and void
and this infirmity may affect the validity of the order passed by the authority
in question. It is cases of thischaracter where the defect or the infirmity in the
order goes to the root of the order and makes it in law invalid and void that
these observations may perhaps be invoked in support of the plea that civil
court can exercise its jurisdiction notwithstanding a provision to the contrary
contained in the relevant statute.
Dhulabhai v. State of M.P. AIR 1969 SC 78
Where the statute gives a finality to the orders of the special tribunals the Civil Courts'
jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil
Courts would normally do in a suit. Such provision, however, does not exclude those cases
where the provisions of the particular Act have not been complied with or the statutory
tribunal has not acted in conformity with the fundamental principles of judicial procedure.

Where there is an express bar of the jurisdiction of the court, an examination of the scheme
of the particular Act to find the adequacy or the sufficiency of the remedies provided may be
relevant but is not decisive to sustain the jurisdiction of the civil court.

Where there is no express exclusion the examination of the remedies and the scheme of the
particular Act to find out the intendment becomes necessary and the result of the inquiry may
be decisive. In the latter case it is necessary to see if the statute creates a special right or a
liability and provides for the determination of the right or liability and further lays down that
all questions about the said right and liability shall be determined by the tribunals so
constituted, and whether remedies normally associated with actions in Civil Courts are
prescribed by the said statue or not.

Challenge to the provisions of the particular Act as ultra vires cannot be brought before
Tribunals constituted under that Act. Even the High Court cannot go into that question on a
revision or reference from the decision of the Tribunals.
When a provision is already declared unconstitutional or the
constitutionality of any provision is to be challenged, a suit is open. A
writ of certiorari may include a direction for refund if the claim is
clearly within the time prescribed by the Limitation Act but it is not a
compulsory remedy to replace a suit.

Where the particular Act contains no machinery for refund of tax

collected in excess of constitutional limits or illegally collected a suit
lies.

Questions of the correctness of the assessment apart from its

constitutionality are for the decision of the authorities and a civil suit
does not lie if the orders of the authorities are declared to be final or
there is an express prohibition in the particular Act. In either case the
scheme of the particular Act must be examined because it is a relevant
enquiry.

An exclusion of the jurisdiction of the Civil Court is not readily to be

inferred unless the conditions above set down apply.
Kamala Mills Ltd. v. State of Bombay (1965) 57 ITR
643(SC) – Seven Judge Bench
 Mafatlal Industries Ltd. v. Union of India,
(1997) 5 SCC 536
It is clear that actions by way of suits or petitions under Article226 of the Constitution cannot be completely
eliminated. The claims for refund can arise under three broad classes and the issue of ouster of jurisdiction
of civil courts can be understood by focusing on the parameters of these classes which are as follows:

Class I ; Unconstitutional levy" - where claims for refund are founded on the ground that the provision
of the Excise Act under which the tax was levied is unconstitutional. --- Cases falling within this class
are clearly outside the ambit of the Excise Act. In such cases assessees can either file a suit under
Section 72 of the Contract Act, 1872 (hereinafter called "Contract Act") or invoke the writ jurisdiction
of the High Court under Article 226 of the Constitution.

Class II: "Illegal levy" - where claims for refund are founded on the ground that there is
misinterpretation/misapplication/erroneous interpretation of the Excise Act and the Rules framed
thereunder --- Ordinarily, all such claims must be preferred under the provisions of the Excise Act and
the Rules framed thereunder by strictly adhering to the stipulated procedure. In cases where the
authorities under the Excise Act initiate action though lacking in inherent jurisdiction, the remedy by
way of a suit under Section 72 of the Contract Act or a writ under Article 226 of the Constitution, will
lie. Such a conclusion will not frustrate the exclusion of jurisdiction of civil courts by the Excise Act
because the areas where as authority acting under a statute is said to lack inherent jurisdiction have
been clearly demarcated by several decisions of this Court.

Class III: "Mistake of Law" - where claims for refund are initiated on the basis of a decision rendered
in favour of another assessee holding the levy to be : (1) unconstitutional; or (2) without inherent
jurisdiction ---
(1) An Exclusionary Clause using the formula 'an order of the tribunal under this Act shall
not be called in question in any Court' is ineffective to prevent the calling in question
of an order of the tribunal if the order is really not an order under the Act but a nullity.

(2) Cases of nullity may arise when there is lack of jurisdiction at the stage of
commencement of enquiry e.g., when (a) authority is assumed under an ultra vires
statute; (b) the tribunal is not properly constituted, or is disqualified to act; (c) the
subject-matter or the parties are such over which the tribunal has no authority to
inquire; and (d) there is want of essential preliminaries prescribed by the law for
commencement of the inquiry.

(3) Cases of nullity may also arise during the course or at the conclusion of the inquiry,
These cases are also cases of want of jurisdiction if the word 'jurisdiction' is
understood in a wide sense. Some examples of these cases are (a) when the tribunal
has wrongly determined a jurisdictional question of fact or law; (b) when it has failed
to follow the fundamental principles of judicial procedure, e.g. has passed the order
without giving an opportunity of hearing to the party affected; (c) when it has violated
the fundamental provisions of the Act, e.g., when it fails to take into account matters
which it is required to take into account or when it takes into account extraneous and
irrelevant matters; (d) when it has acted in bad faith; and (e) when it grants a relief or
makes an order which it has no authority to grant or make; "as also (f) when by
misapplication of the law it has asked itself the wrong question.
 Lack of Jurisdiction and
Irregular Exercise
Anisminic Ltd. v. Foreign Compensation Commission (1969) 2 AC
147
Lack of jurisdiction may arise in various ways. There may be an
absence of those formalities or things which are conditions precedent
to the tribunal having any jurisdiction to embark on an enquiry. Or the
tribunal may at the end make an order that it has no jurisdiction to
make. Or in the intervening stage while engaged on a proper enquiry,
the tribunal may depart from the rules of natural justice; or it may ask
itself the wrong questions; or it may take into account matters which it
was not directed to take into account. Thereby it would step outside its
jurisdiction. It would turn its inquiry into something not directed by
Parliament and fail to make the inquiry which the Parliament did
direct. Any of these things would cause its purported decision to be a
nullity.
RES SUB JUDICE – s. 10
Two suits

Matters in issue

Same parties/representatives

Litigating under the same title

Same court/competent court

Previous court competent to grant relief in the

subsequent suit {date of previous suit}
 RES JUDICATA – s. 11
S. 11 – not exhaustive
Principle of Universal Application
Constitutional Law - Double Jeopardy
Criminal Law – Autrefois convict
Applicable to writs {Daryao v. state of U.P., AIR 1961 SC 1457}
Habeas Corpus – {Lallubhai Jogibhai Patel v. Union of India, AIR
1981 SC 728|}

Ancient Civilisations – Roman, Hindu, Muslims

Consent Decree – Yes (Subba Rao v. Jagannatdh Rao, AIR
1967 SC 591) No (Prayya Allaya Hitalamani v. Sri Prayya
Gurulingayya Poojari, AIR 2008 SC)
 RES JUDICATA……..
Once a res is judicata, it should not be adjuged again

Based on three principles

Nemo debet lis vexari pro una at eadem causa
Interest Republica ut sit finis litium
Res Judicata pro vertitate accipitur

Plea of Res Judicata

RES JUDICATA……………
Previous suit and subsequent suit
Matters Directly and substantially in issue – same
Same parties/representatives
Same Title
Previous Court is competent to grant the relief claimed
in subsequent suit (read with explanation VIII inserted
in 1976)
Heard and Finally decided
Explanation – VIII (1976)
Courts of Exclusive Jurisdiction
Courts of Limited Jurisdiction
Courts of Concurrent Jurisdiction
Nabin Majhi v. Tela Majhi, AIR 1978 Cal. 440 – other
than ordinary civil courts
Devoki Amma v. Kunhi Raman, AIR 1980 Ker. 230 –
all courts
Sulochana Amma v. Narayanan Nair, AIR 1994 SC 152
 RES JUDICATA
Different stages of the same suit
Y.B. Patel v. Y.L. Patil, AIR 1997 SC 392
Barkat Ali v. Badri Nath, AIR 2008 SC 1272
Temporary Injunction – Arjun Singh v. Mohinder Kumar, AIR 1964 SC
992
Questions of Fact/Mixed Questions
Two suits tried together
Question of Law
Mathura Parsad v. Dossibai, AIR 1971 SC 2355
Pure question of law unrelated to facts
Jurisdiction of court to try earlier case
Decision declared valid a transaction prohibited by law
Law altered
Constructive Res Judicata – Exp. IV
Might & Ought to have been a ground of attack or defence
State of U.P. v. Nawab Hussain, AIR 1977 SC 1680
Devilal v. Sale Tax Officer, AIR 1965 SC 1150
Home Plantations v. Talaku Land Board (1999) 5 SCC
1990 – Opportunity of controverting a matter should be
taken to be the same thing as if actually controverted
Bhanu Kumar Jain v. Archana Kumar (2005) 1 SCC 787
Dadu Dayalu Mahasabha, Jaipur v. Mahant Ram Nivas,
AIR 2008 SC 2187
 Res Judicata and Issue
Estoppel
Decision of Court Act of Parties

Based on public policy Based on Equity

Ousts the jurisdiction Rule of Evidence

Prohibits same thing twice Prohibits different things at

diff. times
Presumes conclusiveness of
the decision Prevents from denying what
once was truth
 Res Judicata b/w co-
defendants
Munni Bibi v. Triloki Nath , AIR 1931 PC 114
Brij Narain Singh v. Adya Prasad, AIR 2008 SC 1553
Conflict of interest
Necessary to decide that conflict
Actually decided
Necessary or proper parties
Res Judicata b/w co-plaintiffs
Iftikhar Ahmed v. Sayed Meharban Ali, AIR 1974 SC
749

Conflict of interest

Necessary to decide that conflict

Actually decided

Necessary or proper parties

 Taxation Matters
Radha Swami Satsang v. C.I.T. (1992) 1 SCC
659
Strictly speaking – RJ – Not applicable since
each Assessment year is a separate unit
But where fundamental aspect permeating
through different AYs has been found as a fact
and parties have allowed it to become final –
RJ is applicable
Res Judicata & Representative Suits
Expl. VI

Litigate Bonafide

Common right claimed

Provisions of O. I r. 8 complied with

Res Judicata become applicable

 Foreign Judgment (S. 13)
Foreign Judgment conclusive except
Not by court of competent jurisdiction Gurdial Singh
v. Rajah of Faridkot (1895) 22 Cal. 222 PC
Not on merits
Incorrect view of international law or failure to
recognise Indian law wherever applicable (Lex Loci
contractus)
Obtained by Fraud
Founded on breach of law in force in India
 Foreign Judgment-How
Enforced
By instituting a suit on foreign judgment

u/s 44 A – By instituting execution proceedings

Nithya Anand Raghavan v. NCT of Delhi (2017) 8

SCC 454 – Civil Aspects of International Child
Abduction
 Presumption as to Foreign
Judgments
When certified copy filed

Presumption that it was passed by a competent court

Presumption can be displaced

 Place of Suing
Pecuniary Jurisdiction
Court of Lowest Grade – competent to try (S. 15)
Valuation of suits by the plaintiff vis-à-vis duty of the
court
 Place of Suing- s. 16
Territorial Jurisdiction
Suits relating to Immovable Property
Recovery
Partition
Foreclosure, Sale, Redemption
Right or interest
Compensation for wrong to immovable property
+ recovery of movable property actually under
attachment

Where Immovable property is situate

 Place of Suing
Where immovable property situate within the
jurisdiction of two or more courts (S. 17)
Any of the courts where any part of the property is
situate and the suit is within the pecuniary jurisdiction

Where jurisdiction is uncertain

Any of the courts after recording the factum of
uncertainty
 Place of Suing
Compensatory Suits (S. 19)
Where cause of action arose
Where defendant resides
Carries on business
‘personally’ works for gain
Place of Suing – Other cases (S.20)

Where cause of action arose

Where defendant resides
Carries on business
‘personally’ works for gain
 Objections to Jurisdiction
(S.21)
Pecuniary and Territorial Jurisdiction
No objection allowed by the appellate or revisional court
unless
Taken in the court of first instance
At the earliest possible opportunity/at or before
settlement of issues
Consequent failure of justice
 Bar of Suit (S. 21 A)
Inserted in 1976

No fresh suit challenging territorial jurisdiction

Pecuniary jurisdiction not mentioned…..

 Suit – How instituted
Presentation of Plaint (S. 26 r.w. O. IV)

Duplicate Plaint (2002)

Accompanied by an Affidavit (2002)

To the officer of the court

Where & When?

Entry in register of civil suit

Suit Number
 Parties to Suit {O. I}
Necessary Parties - A party without whom no
effective order can be passed. A party who is entitled
to defend a an order

Proper Parties - A party in whose absence decree or

order can be passed but whose presence is required
for complete and final disposal of the suit or other
proceedings. {Ramesh Hirachand Kundanmal v.
M.C. of Greater Bombay, (1992) 2 SCC 524}
Joinder of Plaintiffs (O I, r. 1)
Right to relief arises from the same act or transaction

If separate suits were brought common questions of

law or fact would arise
Joinder of Defendants (r.3)
Right to relief arises from the same act or transaction

If separate suits were brought common questions of

law or fact would arise
Power of the Court (r. 2 &
3A)
If likely to embarrass the trial or cause delay

Court may order separate trials

Court may give judgment against one or more parties

(r.4 )
Effect of Misjoinder/Non Joinder
(r.9)
No suit shall be defeated by non joinder or misjoinder
of proper parties

Necessary parties – the decision is not applicable

Suit in the name of Wrong Plaintiff
(r.10)
Court can allow the substitution

At any stage of the suit

If bonafide mistake

For determination of real matters in controversy

 Striking Out or adding of
parties
At any stage of the proceedings
Suo motto or on application
On terms as may be just
Strike out or add the name of any party as plaintiff or defendant
Such person ought to be joined as plaintiff or defendant
Real matters in controversy

No person can be a plaintiff without his consent

Person under disability – next friend
Plaintiff is dominus litis – power to be used sparingly and
judidiciously
Objections as to misjoinder/non
joinder
At the earliest possible opportunity/at or before the
settlement of issues

Unless ground has subsequently arisen

Objection not so taken shall be deemed to be waived

Addition or substitution of
parties
Any person may apply on the ground that suit is
improperly conducted and his interest will be
seriously affected

He may also be substituted – if does not proceed with

due diligence
Representative Suits (O.1,r8)
Numerous Persons

Same Interest

Leave of the court

Notice
Withdrawl/Compromise/Abandonm
ent
Can not be withdrawn/compromised or abandoned

Except with the leave of the court

Notice to all
 Frame of Suit – O. II
Suit to be framed to enable final decision

Suit to include whole claim

Relinquishment of part of claim

Omission to sue for one of several reliefs

Joinder of Causes of Action
If all of them are jointly interested

IF separate suits were brought common questions of

law or fact would arise

Cause of action arises from the same act or

transaction
 Joinder in case of immovable
property suits
Claim for mesne profits

Damages for breach of contract

Claims in which relief claimed is based on the same

cause of action
Objections as to misjoinder
In the court of first instance

At the earliest possible opportunity/at or before the

settlement of issues

Unless grounds have subsequently arisen

Otherwise they shall be deemed to be waived

 Pleadings Generally – O. VI
Pleadings – meaning
Replication is pleading – see VIII(9) {M.L. Gupta v. Kripal
Singh, 2002 (2) RCR (Rent) 263 Delhi High Court}
Facts
Concise statement of facts
Material facts
Facta Probanda and not facta probantia
Facts and not law
Consecutively numbered
Divided into paragraphs
Dates, figures in words also
Forms in Appendix A to be used
 Particulars to be given
Misrepresentation

Fraud

Breach of Trust

Wilful Default

Undue influence
Other Things to be kept in
mind
Condition precedent to be stated
Bare denial of contract
Effect of document to be stated
In case of Malice, Knowledge, fraudulent intention,
condition of mind – simple allegations to be made
Notice- only factum of notice to be stated
Presumptions of Law
 Other Factors
Pleading to be signed
Verified
Affidavit by the person verifying
Address for the service of notice
False or fictitious address
Striking out of defence
Modula India v. Kamakshya Singh Deo, AIR 1989 SC
162
Alternate and inconsistent Pleadings

Striking out of pleadings

Unnecessary, frivoulous, scandolous,
Prejudice or embarrass
Abuse of the process of the court
At any stage
 Amendment of Pleadings
6(17)
Provision existing right from the beginning
Clarapede & Company v. Commercial Union
Association (1884) Vol XXXII The Weekly Reporter
262
".....The rule of conduct of the court in such a case is that,
however negligent or careless may have been the first
omission, and, however late the proposed amendment, the
amendment should be allowed if it can be made without
injustice to the other side. There is no injustice if the other
side can be compensated by costs; but, if the
amendment will put them into such a position that
they must be injured, it ought not to be made....."
Amendment of pleadings used to be one of the easiest things in
the course of judicial proceedings before the amendments came
to be made in the C.P.C. in the year 1999. It was felt that the
provision for amendment of pleadings (Order 6, Rule 17) was
greatly abused and it was one of the significant sources of delay
in the judicial process. Accordingly, as per the recommendation
of the Law Commission, the provision for amendment of
pleadings was altogether deleted by Act 46/1999. The deletion of
the provision led to widespread protests by lawyers and different
legal bodies and as a result the provision was once again
introduced, albeit with a rider, by Act 22/2002, with effect from
July 1, 2002.
The opening para – at any stage of the proceedings
But the proviso – no amendment to allowed after the
commencement of the trial unless it could not have been pleaded
inspite of due diligence
 Amendment of Pleadings
Object of amendment in 2002 is to curb filing of
applications for amendment at later stages, to avoid
surprises to opposite parties and to curb delays in disposal
of civil suits {Chander Kanta Bansal and Rajinder Singh
Anand, (2008) 5 SCC 117}
When trial commences??
Ajendraprasadji N.Pandey & Anr. v. Swami Keshavprakeshdasji
N. & Ors. [2006 (12) SCC 1] it was observed that the date of
settlement of issues is the date of commencement of trial
Baldev Singh & Ors. V.Manohar Singh & Anr. [2006 (6) SCC
498] - commencement of trial as used in proviso to Order 6 Rule
17 in the Code of Civil Procedure must be understood in the
limited sense as meaning the final hearing of the suit, examination
of witnesses, filing of documents and addressing of arguments.
 Amendment of Pleadings
Usha Devi v. Rijwan Ahamd & Ors., AIR 2008 SC
(17/01/2008), the apex court did not make any
comments as to when trial commences after
considering these judgments
Amendment at appellate stage {Harcharan v. State
of Haryana, (1982) 3 SCC 408}
State of Maharashtra v. Hindustan Construction Co.
Ltd., (2010) April 1, 2010 – Application for setting
aside Arbitration Award
 Amendment of Pleadings
Discretion of the court
Terms as may be fit and just
Must be necessary for determination of real matters in controversy
No injury to the opposite party
It should not introduce new cause of action or totally different case
Should not take away any legal right vested in the other party
Union of India v. Pramod Gupta (dead) by LRs and Others, (2005) 12
SCC 1, -delay and laches on the part of the parties to the proceedings
would also be a relevant factor for allowing or disallowing an
application for amendment of the pleadings.
 Principles
Chakreshwari Construction Pvt. Ltd. v. Manohar Lal (2017) 5 SCC 212
whether the amendment sought is imperative for proper and effective
adjudication of the case;
whether the application for amendment is bona fide or mala fide;
the amendment should not cause such prejudice to the other side which
cannot be compensated adequately in terms of money;
refusing amendment would in fact lead to injustice or lead to multiple
litigation;
whether the proposed amendment constitutionally or fundamentally
changes the nature and character of the case;
as a general rule, the court should decline amendments if a fresh suit on
the amended claims would be barred by limitation on the date of
application.
Amendment of Pleadings
Should not be allowed to include time barred
claims …………L.J. Leach and Company Ltd., v.
Jardine Skinner and Co., (1957) SCR 438
It is no doubt true that courts would, as a rule,
decline to allow amendments, if a fresh suit on the
amended claim would be barred by limitation on
the date of the application. But that is a factor
to be taken into account in exercise of the
discretion as to whether amendment should be
ordered, and does not affect the power of the
court to order it, if that is required in the interests
of justice."
Should not be allowed when other party is not acting
in good faith
After trial has commenced – only when the party
could not have pleaded that fact even after the
exercise of due diligence
Decision is not a decree
Not appellable order
14 days
Abdul Rehman v. Mohd. Raldu, (2012) 11 SCC 341

The proviso to some extent, curtails absolute discretion to a, to sollow

amendment at any stage. At present, if application is filed after
commencement of trial, it has to be shown that in spite of due
diligence, it could not have been sought earlier. The object of the Rule
is that courts should try the merits of the case that come before them
and should, consequently, allow all amendments that may be
necessary for determining the real question in controversy between
the parties provided it does not cause injustice or prejudice to the
other side. This Court, in a series of decisions has held that the power
to allow the amendment is wide and can be exercised at any stage of
the proceeding in the interest of justice. The main purpose of allowing
the amendment is to minimise the litigation and the plea that the relief
sought by way of amendment was barred by time is to be considered
in the light of the facts and circumstances of each case.
 Plaint – O. VII
Plaint – Meaning
Particulars to be contained in plaint
Name of the court
Name, address, and description of the plaintiff
Name, address and description of the defendant
Statement as to minority or unsoundness of mind
Statement as to representative suit
Cause of action
Jurisdictional clause
Particulars to be contained in plaint
Prayer Clause
Valuation and Court fee clause
Amount of set-off
Precise amount claimed in money suits
Description of the property in suits relating to
immovable property
Grounds of exemption from law of limitation
Interest and liability of the defendant in the subject
matter
Events Happening after the plaint
Generally plaintiff not entitled to take benefit
Relief depends upon the facts on the day of the
suit
Pasupuleti Venkateswarlu v. Motor & General
Traders AIR 1975 SC 1409, cautiously events
happening after the date of the suit may be taken
note of especially when
Original relief becomes wholly inappropriate
Justice so demands
But should not displace the vested rights of the parties
 Admission of Plaint
To deposit fee for service of summons

To present as many copies as there are defendants

within seven days
 Return of Plaint – O. VII, r 10
At any stage for being presented to the proper court
If after summons to defendant, the plaintiff may make an
application stating therein
The court where he proposes to file the suit
Prayer to fix the date for appearing before the said court and
Request for notifying the defendant about the same and
Court may fix the date and notify the defendant and
There is no need for summoning the defendant by the new
court
Court shall endorse date and time of presentation and return
alongwith the reasons for returning the plaint on the plaint.
Rejection of Plaint – O.VII, r.11
Does not disclose cause of action
Undervalued
Insufficiently stamped
Suit appears to barred
Not filed in duplicate
No. of copies not filed
Plaintiff can file fresh suit
Rejection of plaint is a deemed decree, therefore appeal
can also be filed
Saleem Bhai v. State of Maharashtra, (2003)
1 SCC 557
A perusal of Order 7 Rule 11 Code of Civil Procedure makes it
clear that the relevant facts which need to be looked into for
deciding an application thereunder are the averments in the plaint.
The trial court can exercise the power Under Order 7 Rule 11
Code of Civil Procedure at any stage of the suit--before registering
the plaint or after issuing summons to the Defendant at any time
before the conclusion of the trial. For the purposes of deciding an
application under Clauses (a) and (d) of Rule 11 of Order 7 Code
of Civil Procedure, the averments in the plaint are germane; the
pleas taken by the Defendant in the written statement would be
wholly irrelevant at that stage, therefore, a direction to file the
written statement without deciding the application Under Order 7
Rule 11 Code of Civil Procedure cannot but be procedural
irregularity touching the exercise of jurisdiction by the trial court.
 Chhotanben v. Kiritbhai Jalkrushnabhai
Thakkar (2018) 6 SCC 422
What is relevant for answering the matter in issue in
the context of the application Under Order VII Rule
11(d), is to examine the averments in the plaint. The
plaint is required to be read as a whole. The defence
available to the Defendants or the plea taken by them
in the written statement or any application filed by
them, cannot be the basis to decide the application
Under Order VII Rule 11(d). Only the averments in the
plaint are germane.
Documents relied upon in the Plaint
Documents relied upon or upon whom the plaintiff’s
claim is based to be entered in list of documents and
the list to be appended with the plaint
The original and copy of the documents to be filed
alongwith the plaint
Otherwise shall not be received in evidence except
with the leave of the court
This rule not applicable to Documents required for
cross-examining defendant’s witnesses or handed
over to a witness to refresh his memory
Summons (O. V, ss. 27-29)
Summons – an intimation that suit is filed, to appear
and answer the claims
To appear and answer within 30 days or 90 days
Prescribed form, Appendix B, First Schedule
Summons should be signed, sealed
Summons should be accompanied by copy of plaint
Summons may be for appearance in person or
through authorised agent
When personal appearance can be asked for (r.4)

Personal appearance can be called for

When resident within the jurisdiction of the
court
When resident beyond the jurisdiction but
within 50 miles from the court
When resident beyond 50 miles but within
200 miles – if established public transport
system exists for 5/6th of the distance.
 Exemptions from Personal Appearance
When resident beyond the jurisdiction of the court and between
50 – 200 miles but no established public transport system for
5/6th of the distance
Resident beyond 200 miles
Exemption under section 132 – Pardanashin lady
Exemptions u/s 133
President
Vice President
Speaker
Ministers of the Union
Judges of SC
Governors, Administrators
Chairman of State Legislative Council
Ministers of States
Judges of High Court
Rulers of former Indian States
 What summons should
contain
Name of the court

Date and time

Purpose

Direction to produce documents etc.

 Service on Whom?
Personal Service
On the defendant …..serving officer to follow the defendant
Duly authorised agent
In case of immovable property – on the agent in charge of
property
If defendant can not be found and no likelihood of his being
found – any adult member of the family
Suit in connection with business – on manager or agent in charge
If resident outside India and no agent in India – by post, email, fax,
courier service
If resident in the jurisdiction of other court – summons to be sent to
such other court
If resident in presidency towns – to small causes court
If in army, navy or air force – to commanding officer
If in prison – on SP Jails
If corpn. – Principal Officer, secretary
Service by Delivery or tendering a copy of
summons
Defendant or agent or person served to sign an
acknowledgement as evidence of service
Serving officer to sign and make an endorsement
regarding time and manner of service
If refuses to sign, the serving officer to endorse
this fact on the copy of summons alongwith his
statement and signatures
 Other modes of service
Approved Courier service
Fax
Email
Registered post acknowledgment due, if AD lost,
valid service
Speed post
If defendant refuses to accept post, postal officer to
make an endorsement
 Substituted Service
At the instance of Serving Officer (r. 17)
Def. refuses to accept service
He is absent,
Can not be found and no likelihood of being found
No agent
No other person on whom service can be made
Copy to be affixed on the outer door or conspicuous part
Make an endorsement
If affidavit furnished, serving officer may be examined
If affidavit not furnished by serving officer, he shall be
examined
At the instance of the court (r. 20)
Court satisfied
Def. is avoiding service
Or for any other reason summons can not be served in
the ordinary manner
Conspicuous part of the house of def., court house
Advertisement in newspaper
Written Statement – O. VIII
Meaning

30 days from the date of service of summons

Time limit can be extended upto 90 days for reasons

to be recorded in writing

Use of word shall

 Kailash v. Nankhu (2005) 4 SCC
480
The purpose of providing the time schedule for filing the written
statement under Order VIII, Rule 1 of CPC is to expedite and
not to scuttle the hearing. The provision spells out a disability
on the defendant. It does not impose an embargo on the power
of the Court to extend the time. Though, the language of the
proviso to Rule 1 of Order VIII of the CPC is couched in
negative form, it does not specify any penal consequences
flowing from the non-compliance. The provision being in the
domain of the Procedural Law, it has to be held directory and
not mandatory. The power of the Court to extend time for filing
the written statement beyond the time schedule provided by
Order VIII, Rule 1 of the CPC is not completely taken away.
 Kailash v. Nankhu (2005) 4 SCC
Though Order VIII, Rule 1 of480
the CPC is a part of Procedural Law
and hence directory, keeping in view the need for expeditious trial
of civil causes which persuaded the Parliament to enact the
provision in its present form, it is held that ordinarily the time
schedule contained in the provision is to be followed as a rule and
departure therefrom would be by way of exception. A prayer for
extension of time made by the defendant shall not be granted just as
a matter of routine and merely for asking, more so when the period
of 90 days has expired. Extension of time may be allowed by way
of an exception, for reasons to be assigned by the defendant and
also be placed on record in writing, howsoever briefly, by the Court
on its being satisfied. Extension of time may be allowed if it was
needed to be given for the circumstances which are exceptional,
occasioned by reasons beyond the control of the defendant and
grave injustice would be occasioned if the time was not extended.
Costs may be imposed and affidavit or documents in support of the
grounds pleaded by the defendant for extension of time may be
demanded, depending on the facts and circumstances of a given
case.
 Sambaji &Others v. Gangabai &
others, (2008) 15 SCALE 522
Order 8 Rule 1 CPC after the 1999 amendment, casts an obligation
on the defendant to file the written statement within 30 days from
the date of service of summons on him and within the extended time
falling within 90 days. The provision does not deal with the power
of the court and also does not specifically take away the power of
the court to take the written statement on record though filed beyond
the time as provided for. Further, the nature of the provision
contained in Order 8 Rule 1 is procedural. It is not a part of the
substantive law. Substituted Order 8 Rule 1 intends to curb the
mischief of unscrupulous defendants adopting dilatory tactics,
delaying the disposal of cases, causing inconvenience to the
plaintiffs and the petitioners approaching the court for quick relief
and also the serious inconvenience of the court faced with frequent
prayers for adjournments. The object is to expedite the hearing and
not to scuttle the same. While justice delayed may amount to justice
denied, justice hurried may in some cases amount to justice buried.
 Particulars in written
statement
New Facts such as suit not maintainable –
limitation, fraud, illegality etc. to be set out in detail
Specific denial
Not evasive denial
If denial not specific- deemed to be admitted
Where reliance upon several grounds, they must be
separately stated
New grounds of defence
Generally no pleading after written statement except
in case of set-off and counter claim

If no written statement filed, court may pronounce

judgment against the defendant however, it is not
mandatory
Legal Set off – O VIII, r. 6
Money suit

Ascertained sum of money

Legally recoverable

Not exceeding the pecuniary limits of the court

Same capacity

At the first hearing

 Equitable Set-off
Not specifically provided in CPC
O. XX, r. 19(3)
Doctrine of courts of Equity
Unascertained sum of money
Arising from the same transaction or same series of
transactions
May be money suit or otherwise
When it is inequitable to derive the defendant to a separate
suit
May not be legally recoverable
 Legal Set-off : Equitable Set-off
Money suits Any suit

Ascertained sum Unascertained sum

Legally recoverable May not be legally rec.

Not required to arise out of Must arise out of the same

the same transaction transaction

Available as a right

Discretion of the court

 Counter Claim r. 6A-6G
Introduced in 1976

Laxmidas Dayabhai Kabrawala v. Nanabhai Chunilal Kabrawala, AIR 1964 SC 11

Cross action by the defendant

Like plaint in cross suit

Cause of action may arise after the presentation of the plaint but before written
statement

Shall not exceed pecuniary jurisdiction of the court

May be for ascertained sum of money

Generally Courter claim is more than the original claim

Bollepanda P. Poonacha & Anr v. K.M. Madapa, AIR 2008 SC 2003 ; A right to file
counter claim is an additional right. It may be filed in respect of any right or claim, the
cause of action therefore, however, must accrue either before or after the filing of the
suit but before the defendant has raised his defence. A belated counter claim must be
discouraged.
Set off
Defence
Money Suit
Ascertained sum of money
Must be Recoverable on the
date of the suit
Amount is equal to or less
than the original claim
: Counter Claim
Ground of attack
Any suit
May be unascertained sum of
money
Must be recoverable on the
date of w/s
Amount is generally greater
than the original claim
Appearance of Parties and consequences
of Non appearance (Order IX)
To appear in person, if the summons contain such a
direction
Otherwise to appear in person or through pleader
If plaintiff has not deposited the court fee, postal
charges etc., copies of plaint not filed, and summons
could not be served – suit may be dismissed
Two options –
to make an application to set aside such order and
restoration of suit to file
to file fresh suit
 Consequences of non
appearance
If no party appears – may dismiss the suit
Two options
to make an application to set aside such order and restoration of suit to
file
to file fresh suit

If plaintiff appears and defendant does not appear

If summons duly served in time – court ‘may’ make an order that suit
be heard ex-parte
If defendant appears before the next date and shows reasonable cause,
suit to be restored to file

If summons duly served but not in time

Adjournment of hearing to a future date
Notice to be given to the defendant
If summons not duly served
Second summons to be issued

Duty of plaintiff to apply for fresh summons

within seven days (r. 5)
If application not made within 7 days, suit to be
dismissed qua such defendants unless the court is
satisfied
Plaintiff made best efforts to locate the defendant
Defendant is avoiding the service
Sufficient cause for extending time
If only defendant appears (r.
8,9)
Suit to be dismissed

No fresh suit can be filed (r. 9 read with section 12)

An application for restoration of suit to file – if

sufficient cause is shown

Notice of such application to defendant

 Setting aside Ex parte decrees (r. 13)
When ex parte decree passed, various options
To make an application for setting aside u/r 13 within 30 days
To file an appeal against the decree
To file review
Application u/r 13 and appeal can be taken up simultaneously????

Application on the following grounds:

Summons not duly served
Sufficient cause shown

Notice to other party

The court on payment of cost or such terms
Set aside the ex parte decree and fix day for proceeding with suit in usual
manner
No decree to be set aside on mere irregularity in service of summons – if
defendant had notice of the proceedings and had sufficient time
Examination of the parties by the
Court O. X
At the first hearing
With a view to find out the matters in controversy
With a view to frame issues
Oral examination of the party or any person who
accompanied the pleader and who is aquainted with the
facts of the case.
If pleader/that person refuses to answer, the court will
direct the party to appear within seven days
If does not appear within 7 days, court may pronounce
judgment against him
 O. 10 r. 1A
Inserted in 2002

With the object of reducing the burden on the courts

Court shall direct the parties to opt for one of the

modes of ADRS detailed in s. 89

Arbitration, Conciliation, Mediation and Judicial

Settlement through Lok Adalats
Discovery and Inspection O.
XI
Interrogatories
Set of questions to be put by one party to another to
clarify factual position
Purpose – to know the case of the opponent; to obtain
admissions etc.
No interrogatory to know what evidence the other
party has got
Usually after filing of written statement
One set of interrogatories usually
• Application to be made to the court for leave to
serve interrogatories
• Application to contain the particulars of
interrogatories
• Which interrogatory to be answered by whom
• Interrogatories in Appendix C
• If opposite party is minor/unsound mind-
interrogatories to be served upon the
guardian/next friend
 Answer to Interrogatories
By way of an affidavit within 10 days or such extended time
Answer in Form No. 3, Appendix C
Party replying may take objections in their affidavit viz., scandalous,
unreasonable, unwarranted at the present stage etc.
If answer inadequate or insufficient, an application may be made to the court
and court can ask for further answer.
Application may be made within seven days for setting aside of interrogatories
If answer not filed/refusal – if plaintiff suit be dismissed and if defendant –
defence be struck out
No fresh suit can be filed (O. XI(21)(2) read with section 12
 Discovery of Documents
Documents annexed with the pleadings – notice, at or before the
settlement of issues, to produce such documents and to take extracts
therefrom. Within 10 days of notice, the reply to be given, three
days to inspect
Other documents
Application u/r 12 to know what documents are in
possession/power of the opponent
If court orders, the other party to file affidavit
Production of documents
Inspection of documents
Premature discovery
Failure to produce – if plaintiff- dismissal, if defendant – defence to
be struck out. No fresh suit
 Admissions Order XII
Notice to other party to admit a document within
seven days from date of service
Notice in Form 9, Appendix C
If not denied – deemed to be admitted
Notice to admit facts – not later than 9 days before
the date of hearing
To be answered within 6 days after service of notice
Court may pronounce judgment on the basis of
admissions
Framing of Issues, O. XIV
Backbone of a suit (State of Gujarat v. Jaspal Singh (1994)
35 (1) Gujarat Law Reporter, p. 258)
Issues – meaning
Issues of law, fact or mixed issues
Materials from which issues to be framed
Plaint, Written Statement, Answers to interrogatories, Replication,
Examination under order X, documents produced by the parties
Court may examine witnesses

First Hearing – Sangram Singh v. Election Tribunal AIR

1955 SC 425
Court to frame the issues, parties and counsels to
assist the court in framing of issues
To pronounce judgment on all issues – generally (r. 2)
Power to amend, frame additional issues and strike
out issues at any stage of the suit
Agreement between the parties
 Kuldeep Singh Pathania vs. Bikram
Singh Jaryal (2017) 5 SCC 345
After the 1976 amendment, the scope of a preliminary issue under Order XIV Rule
2(2) is limited only to two areas, one is jurisdiction of the court, and the other, bar to
the suit as created by any law for the time being in force. The whole purpose of trial
on preliminary issue is to save time and money. Though it is not a mini trial, the court
can and has to look into the entire pleadings and the materials available on record, to
the extent not in dispute. But that is not the situation as far as the enquiry under
Order VII Rule 11 is concerned. That is only on institutional defects. The court can
only see whether the plaint, or rather the pleadings of the Plaintiff, constitute a cause
of action. Pleadings in the sense where, even after the stage of written statement, if
there is a replication filed, in a given situation the same also can be looked into to see
whether there is any admission on the part of the Plaintiff. In other words, under
Order VII Rule 11, the court has to take a decision looking at the pleadings of the
Plaintiff only and not on the rebuttal made by the Defendant or any other materials
produced by the Defendant. Whereas in case of 14(2), the court can look into the
pleading s of both the parties to see whether court has jurisdiction and whether there
is any bar on suit.
Disposal of Suits at the first hearing
(Order XV)
Parties are not at issue
When the evidence required to adjudicate on the
issues is sufficient or can be immediately
produced by the parties
If the summons are for settlement of issues only –
then with the consent of the parties
If the summons for final disposal and for
producing evidence – party fails without
sufficient cause
Summoning and Attendance of
Witnesses (O. XVI)
No person can be summoned as witness
unless:
He resides within the jurisdiction of the court
He resides beyond such jurisdiction but within 100
KMs
He resides beyond 100 but upto 500 KMs where
5/6th of the distance is covered by established
public conveyance system
Where the air transport is available and air fare is
paid
 List of Witnesses
List of witnesses to be furnished within 15 days of settlement of
issues
If a witness’s name not in list, he can not be called as witness.
The court may permit on sufficient cause after recording reasons.
The party to obtain summons within five days of presenting the
list of witnesses
Expenses fixed by the court to be paid into the court before issue
of summons within seven days of application for obtaining
summons
Party may summon the witnesses without the intervention of the
court whose name is in the list of witnesses – expenses to be paid
If amount paid is insufficient
Further sum to be paid
If default – attachment and sale of movable property
or discharge the witness or both
If witness to be detained for more than one day –
further sum to be paid – on default – may discharge
the witness or attach and sell movable property or
both.
 Summoning of Witness
Service of summons in the same manner as is under
Order V
Summons should disclose the particulars
Summons may be given to the party for service on
witness (r. 7A)
If summons could not be served by party or refused,
to be served by court in the ordinary manner.
 If witness does not comply with
summons
If summons duly served - examination of serving officer

Court is of the opinion that witness is material

Witness is intentionally avoiding service or not complying with without reasonable

cause

Proclamation to be issued

The court may attach property or issue warrant for arrest

If witness appears and shows sufficient cause, attachment to be withdrawn

If he does not appear, the court can proceed u/s 32 i.e. attachment and sale of
property, warrant of arrest, impose fine upto 5000?? Or order him to furnish
security

No witness to leave unless all the witnesses examined or without the permission of
the court

If leaves, the court can proceed as if he has not appeared

Court can summons witnesses on its own motion

 Witnesses lodged in Jail
(Order XVIA)
If witness is material and jail is within 25 kms. Form
the court house
If beyond 25 kms, ordinarily no personal appearance
unless the court is of the opinion that examination on
commission would be inadequate
Expenses to be paid into court
The state govt. can exempt certain categories of
prisoners from personal appearance
Examination on commission
 Adjournments (O. XVII)
Adjournments for reasons to be recorded in writing
Not more than three adjournments during the hearing of the suit
Hearing of the suit to be on day to day basis untill all the witnesses in
attendance are examined
No adjournment during hearing except for reasons beyond the control of
the party
Pleader busy in other court – no ground for adjournment
If pleader is sick – adjournment only when the party could not have
engaged another counsel
If witness present but party/pleader not present or if present not ready to
examine/cross examine – court may record the statement and
examination and cross examination may be dispensed with
Hearing of Suit and Examination of
Witnesses (Order XVIII)
S. 153B trial to be in open court
Ss. 101-114 of Evidence Act, 1872 – Right to begin
The party having right to begin to present his
case/evidence/arguments
The other party to reply/present his evidence
The first party to conclude the whole case
Oral arguments/written arguments
Where party is to appear as witness, it should appear
first before other witnesses
Recording of Evidence (r.4)
Examination in chief- shall be on an affidavit
Cross examination and re-examination of witnesses
in attendance may be by court or by the
commissioner
Commissioner to record the objections raised by the
parties and court to decide on those objections
Commissioner to submit report within 60 days
Evidence recorded by the commissioner alongwith
the report shall form part of the record of the case.
In appealable cases, the whole of the evidence to be recorded in the
language of the court
In non appelable cases, only the substance of the evidence to be
recorded.
Evidence to be read over to the witness who is to sign the statement
Evidence in English when English is not the language of the court –
if given in English and taken down in English
Otherwise, only if, the pleaders/parties do not object
The questions objected by a party and allowed by court shall be
recorded together with decision on those objections
Examination de bene esse (r. 16)
Power to appoint Commission (r. 19 read with Order 26 r. 4A)
Commission (ss. 75-78, O. XXVI)
Discretionary Remedy
Either suo motto or on application of either party
Power to issue commissions (s.75)
To examine witnesses (rules 1-8 of O. XXVI)
To Make Local Investigation (rules 9-10)
To Examine or adjust accounts (r. 11-12)
To Make a partition (r. 13-14)
To Hold scientific, technical and expert investigation (r.
10A)
To conduct sale of movable property (r. 10C)
To perform ministerial acts (r. 10B)
 To Examine Witnesses
Person resident within the jurisdiction of the
court (r. 1)
When he is exempt from appearance in court
Paramhansa Ramkrishna v. Trimbak Rajaram, AIR 1978
Bom., 176 (Paramhansa)
Unable to attend due to sickness or infirmity
Interest of Justice (r. 4A)
Expeditious disposal of case (r. 4A)
Any other sufficient reason (r. 4A)
Bandhua Mukti Morcha v. Union of India, AIR 1984 SC
802
 To Examine Witnesses
Other Cases (r. 4)
Resides outside the jurisdiction of the court
Witness is about to leave the jurisdiction of the court
Government servant – appearance in court will be
detrimental to public interest
Where personal appearance can not compelled (100
KM to 500 KM and beyond), if examination is
necessary in the interest of justice
Person is resident outside India and his examination
is necessary (r. 5)
 To Examine Witnesses
The Evidence collected will be read in
evidence with the consent of the opposite
party except where (r. 8)
Witness is beyond the jurisdiction of the court
Witness is dead
Witness is unable due to sickness or infirmity
Exempted from personal appearance
Government servant – detriment to public
Court authorises
 Local Investigations
To collect evidence on the spot
To ascertain market value
To investigate any dispute
To investigate mesne profits
To investigate damages
To determine net profits
Report by commissioner alongwith the evidence shall be the
evidence in the suit
Commissioner may be examined by court or with the
permission of the court by any party
 Commissions on the request of
foreign courts (r. 19-22)
If HC is satisfied on the
Certificate signed by consular office through CG
Letter of request transmitted through CG
Letter of request produced directly by party in HC

Suit of civil nature

Witness is resident within appellate jurisdiction of the
HC
On application by the party or
On application by law officer of the state govt.
 General provisions regarding
commissions
Expenses (r. 15)
Powers of commissioners (r. 16)
Examine the parties, witnesses or any other person
Call for and examine documents
Enter upon any land or building at reasonable time
Objections of parties, answers and names to be
reduced into writing
All powers of a civil court regarding summoning,
attendance and examination of witnesses
 Affidavits (Order XIX)
An Affidavit per se does not become evidence in the suits,
but it can become evidence only by consent of the party or
where it is specially authorized by particular provision of
law. Affidavits are not included in the definition of
‘evidence’ as provided in Section 3 of The Evidence Act,
1872.
Court may order any fact to be proved by affidavit (r. 1)
Cross examination
Affidavit to be confined to matters of personal knowledge
except in interlocutory applications where it may include
statement on his belief
 Judgment and Decree (O. XX)
Balraj Taneja v. Sunil Madan, AIR 1999 SC 3381
Judgment in Open Court
Immediately or as early as practicable
Notice
30 days
Exceptional and extra-ordinary circumstances – endeavour should be made
to pronounce judgment within 60 days
Anil Rai v. State of Bihar, AIR 2001 SC 3173
Bachan Singh v. State of Punjab, AIR 1980 SC 898, Bhagwati J. (16-08-1982)
Only the final order to be pronounced
Judgment to be signed
Where parties not represented by pleaders, court to inform about right to
appeal, period of limitation
 Contents of Judgment
Small Cause Courts
Points for determination
Decision on those points

Other Courts
Concise statement of facts
Points for determination
Decision on those points
Reasons for those decisions
 Decree
Within 15 days ‘endeavour’ shall be made
Appeal against decree without filing copy of decree (01-07-2002)
Decree date- date of judgment
Signed by judge
Contents of decree
Suit number
Name of parties
Addresses
Particulars of claim
Relief granted
Cost of the suit, by whom to be paid
Contents of Decree – Specific Cases
Decree for recovery of immovable property
Description of property
Survey numbers
Decree for delivery of movable property
The amount of money as an alternative remedy
Decree for payment of money
May order payment in instalments
May postpone the payment of money
Order to pay in instalments may be made after the
passing of decree on the application of judgment debtor
with the consent of decree holder
Contents of Decree – Specific Cases

Decree for possession, rent and mesne profits

Possession of property
Rent
Mesne profit
Future rent rent and mesne profits

Specific performance of a contract of sale or

immovable property
Purchase to be made
Time period
Contents of Decree – Specific Cases
Administration Suit
Preliminary Decree
Enquiry into accounts
Final decree on the basis of preliminary decree
If the property insufficient – provisions relating to insolvency to be applicable

Pre-Emption Suit
Dissolution of partnership
Principal and agent
Partition
Set off and Counter Claim
 Supplemental Proceedings – ss. 94-95
Arrest before Judgment (O. XXXVIII)
At any stage of the suit
Other than suits relating to immovable property
Intent to delay the plaintiff or to avoid the process of the
court/obstruct or delay the execution of decree - defendant
Absconded or left the limits of the jurisdiction
About to abscond or leave
Disposed or removed his property or any part

Defendant is about to leave India

Court may issue a warrant of arrest – to show cause – why
he should not furnish security
 Arrest before Judgement (O.
XXXVIII)
If defendant furnishes security - he can not be
arrested
If does not show cause – shall furnish security
If does not furnish security – confinement in civil
prison – upto Rs. 50 – 6 weeks
More than Rs. 50 – 6 months

If security is in the form of surety – he can give

application for discharge – summons/warrant for
defendant and surety will be discharged on
appearance of defendant
Attachment before Judgement (O.
XXXVIII)
At any stage of the suit
Intent to obstruct or delay the execution
About to dispose of the property or part
About to remove the property

To furnish security or produce and place the property at the

disposal of the court
If no cause shown or security not furnished – Attachment
If security furnished later on – attachment to be withdrawn
Agricultural produce – not attahable
 Attachment before Judgement (O.
XXXVIII)
Premraj v. Maneck Gazi, AIR 1951 Cal. 156 – Principles
Question of Fact
Merely because no harm would be caused – no ground
Merely because he is selling his properties
Only small portion of properties sold
Mere transfer not enough – additional facts to be proved
Defendant in an insolvent condition
Business closed or turnover reduced
Sale at undervalue
Extraordinary remedy
Utmost care and caution
Temporary Injuction (O.XXXIX)
Grounds
Property in dispute is in danger of being
wasted/damaged/alienated/wrongfully sold
Defendant threatens or intends to remove or
dispose of the property – defrauding creditors
Defendant threatens to dispossess the plaintiff
To restrain from committing breach of
contract
 Temporary Injunction
Notice to other party
Notice may be dispensed with – if the purpose will be
defeated
Reasons to be recorded
Copy of the order, application, affidavit, plaint, and
documents are to sent to the opposite party immediately
by regd. Post or delivered
To file the affidavit on the same day or maximum next
day that these copies have been sent
Application within 30 days to be disposed off
 Temporary Injuction –
Principles
Dalpat v. Prahlad, AIR 1993 SC 276
Mandali Ranganna v. T. Ramchandra, 2008(8) SCALE 277
Prime facie case – strong case, needs trial – probability that applicant is entitled
to relief
Whether on evidence lead, it is possible to arrive at the conclusion in question and
not whether it is the only conclusion

Irreparable Injury
Balance of Convenience
Conduct of the parties
Delay/laches acquiescence
Suppressed material facts
Clean hands
 Interlocutory Orders
Interim sale
Detention, preservation and inspection of any property
Authorise any person to enter upon any immovable property
Auhorise samples to be taken, experiment to be conducted
Application at any time
Notice to other party-except where purpose will be defeated
Where subject matter is money or other property capable of
delivery – party admits - trustee
 Receiver (O. XL)
Before or after the decree
Court can confer powers
Remuneration to be fixed by the court
Duties – shall furnish security
Furnish accounts
Pay the amount due from time to time
Responsible for loss due to his wilful default/gross negligence

On failure to perform duties – his property may be

attached and sold
 Receiver (O. XL)
Discretion

Protective Relief

Prima facie case

Merely because it causes no harm – no ground

Conduct of the parties

Suits Against Government or Public
Servant (Ss. 79-82 and O. XXVII)
Suits against government
Suits against public servant in respect of official
duties
Requirement of Notice (S. 80)
Two clear months
Title of the suit
Central Govt. --- Union of India
State Govt. --- The State of ….
Where and to Whom notice to be
given?
Suit against Central Govt. – Secretary

Railways – General Manager

J & K Govt. – Chief Secretary or authorised officer

Other State Govt. – Secretary/Collector

Public Officer – Such Public Officer

 Notice - Object
Govt. may reconsider the decision and decide for itself
whether the claim made could be accepted or not
the advancement of justice and the securing of public good
by avoidance of unnecessary litigation. (Bihari Chowdhary v.
State of Bihar, AIR 1984 SC 1043)
To alert the State to negotiate a just settlement or atleast have
the courtesy to tell the claimant why the claim is being
resisted (Justice Krishna Iyer in State of Punjab v. Geeta Iron
and Steel Works, AIR 1978 SC 1608)
‘Delivered or left at the office of’ – Personal service is not
mandatory
 Notice
No specific format prescribed
Must contain (amendments of 1976)
Name, Description and Address of claimant
Cause of action
Relief Claimed

Notice in writing
Service of Notice
Statement in Plaint
Exemption from Notice {S. 80(2)}
Service of Notice is mandatory – not an empty formality
Service of Notice – a condition precedent
Exemption from notice - s. 80(2) – inserted by amendments of
1976
Grounds of exemption – urgent relief required – grave cases
Urgency of relief is the criteria and not the merit of the case
Grounds to be specifically pleaded
If court satisfied, it will grant leave to file the suit without notice
Only suit to be filed, no relief can be granted without notice to the
government/public officer
Exemption from notice….

State of A.P. v. Pioneer Builders, AIR 2007 SC113

-service of notice under sub-section (1) is imperative except
where urgent and immediate relief is to be granted by the
Court, in which case a suit against the Government or a
public officer may be instituted, but with the leave of the
Court. Leave of the Court is a condition precedent. Such
leave must precede the institution of a suit without
serving notice. Even though Section 80(2) does not specify
how the leave is to be sought for or given yet the order
granting leave must indicate the ground(s) pleaded and
application of mind thereon.
Who can grant exemption u/s 80(2)
Court of first instance
Superior court… Revisional Court
… when the trial court had refused to grant leave, it was always
open to the revisional court to grant such leave provided it was
satisfied that such a case had been made out. …..the language of
Section 80 (2) of the Code did not restrict its application to the
court of original jurisdiction alone………….
If leave is refused by the original court, it is open to the superior
courts to grant such leave as otherwise in an emergent situation a
litigant may be left without remedy once such leave is refused
and he is required to wait out the statutory period of two months
after giving notice. (M/s. Bajaj Hindustan Sugar & Industries
Limited v. Balrampur Chini Mills Ltd. & Ors, AIR 2007 SC 1906)
Defects in notice {s. 80(3)}
The court must be satisfied
Notice contains names, description, address
Notice shows cause of action, relief claimed
In writing and duly served
Suit after two months

All other defects mere technical and does not affect

the suit
 Procedure
In case of suit against public servant, govt. to be joined as a
necessary party (r. 1)
Person appointed by govt. to sign plaint, written statement etc.. –
recognised agent (r.4)
Government pleader to represent the govt./public officer
Reasonable time for filing written statement and extension of time
(r. 7)
Duty of the court to assist in arriving at a settlement (r. 5B – 1976)
No arrest/attachment before judgment (s. 81)
No process for execution unless decree remains unsatisfied for
three months (s. 82)
Section 80 applicable to suits not to writ petitions
Provision beneficial to govt. – Govt. may waive the
requirement of notice- Dhian Singh v. Union of
India, AIR 1958 SC 274
Notice period to be excluded while computing
limitation
Decision u/s 80 is neither a decree nor an appellable
order
Decision u/s 80 falls within the expression ‘case
decided’ u/s 115 and thus revision petition lies
 Suits by Aliens (S. 83)
Alien enemies, residing in India – with the permission
of CG

Alien friends

No suit by alien enemies residing without permission

No suit by alien enemies residing outside India

 Suits by or against Foreign
Rulers/Ambassadors/Envoys – Ss. 84 – 87A
May sue in the name of foreign state
No suit without the consent of CG
Opportunity of being heard before consent is denied
Suit for enforcement of private rights vested in the ruler of
that state
CG may appoint a counsel (recognised agent) on the request
of foreign ruler
No execution against them except with the permission of CG
No arrest
Suits against rulers of former Indian
States (S. 87-B)
Rulers of former Indian States – as notified by CG

Suit in respect of cause of action arising before the

commencement of the Constitution

Same treatment as if a ruler of a foreign state

Suits against Soldiers, sailors and
airmen (O. 28)
Summoning through CO
If they are unable to prosecute/defend
Authorise any other person
Authority letter to be countersigned by the CO
Signature by CO to be conclusive evidence that
authority letter has been validly executed
The person authorised may sue/defend himself or may
appoint a counsel/pleader
Suits by or against corporations (o.
29)
Pleadings to be signed by
Secretary
Director
Principal Officer

Court may require/order personal appearance of these

officers

Summons to be served at the regd. Address

Suits by or against partnership firms
(O. 30)
Section 69, The Partnership Act, 1932
Suits against firm by partners for enforcing contractual
obligations
Suits by firm or partners against third parties for
enforcing contractual obligations can not be filed
Unless firm is registered
Name of the partner suing is on the register of firms as a
partner
 Suits by/against firm
Order 30 is applicable to
Suits by or against firm
Suits between co- partners
Persons carrying on business in other name - proprietorship/HUF

Suit in the name of firm by two or more persons claiming to be partners (r. 1)
All the partners, in India, are necessary parties
Legal heirs of deceased partner – not necessary parties
All the partners/defendants to appear in individual names and their name to
be entered on the decree sheet
Suit to proceed in the name of firm…….
Party to a suit/defendant may file an application for the names/description of
partners of the firm when the cause of action arose
Summons to disclose whether the person is summoned as
partner or as manager/control and management
If summoned as manager – no need of personal appearance
A person summoned as partner may resist that he was not a
partner at the relevant time
If a person denies the factum of being a partner – this to be
framed as an issue and to be tried first
If he is found to be partner – he can deny the liability of the firm
If it is found that the person sued is not a partner – the summons
can be served on the firm and other partners
Order XX r. 15 – Preliminary decree

Execution of decree against partnership firm

No execution against the firm in case of suits between

co-partners except with the leave of the court
 Suits by or against trustees,
executors and administrators (O.31)
Parties in case of Trust
Author/Settler
Trustees
Beneficiaries
Trustees – necessary parties in suits between
beneficiaries and outsiders
All trustees/executors/administrators to be joined
as parties except
Executors Who have not proved the will of the testator
Who are staying outside India
Suits by or against Minors/Persons
of Unsound Mind (O. XXXII)
Who is a minor?
Order to protect the minors/unsound mind – Wards of the Court
Suit to be instituted through his next friend
If suit instituted without there being next friend, plaint to be
taken of the file and cost to be borne by the pleader
Court can ask for security for costs, suo motto/application,
reasons to be recorded
Suit against them to be defended through guardian
Otherwise decree null and void
Who can be guardian/next
friend
Who is major
Sound mind
Whose interest is not adverse to that of minor
Next friend/guardian can retire
Court can remove a guardian/next friend
If interest is adverse
If connection with the opposite party
Fails to discharge his duty
Does not stay in India
Other sufficient cause
 Duties of Next
friend/guardian
No suit to be compromised except with the leave of the
court
Application for leave
Affidavit by next friend/guardian
Certificate by pleader
Enquiry by the court
If the above procedure not followed,
agreement/compromise – voidable
Next friend/guardian can not receive any money/property
except with the leave of the court
 Attainment of majority -
Options
May proceed with the suit (r. 12)

May Abandon the suit (12 (4))

If co-plaintiff – may apply to have his name struck off

(r. 13)

May apply for dismissal – if suit was

unreasonable/improper (r. 14)
 Suits by indigent persons
(O.33)
Indigent person
Who is unable to pay court fee – ‘not possessed of sufficient
means’
Value of property, excluding the subject matter of the suit and
property exempt from attachment, is less than 1000
Property fraudulently transferred within two months to be
taken into consideration
Property acquired during the pendency of the suit to be taken
into consideration

Person used in O. 33 includes not only natural persons

but also juridical persons (Union of India v. Khader
International Construction, AIR 2001 SC 2277
Application for leave to sue as pauper
Application to contain all the particulars required in
plaint
Schedule of property
Value of property
Signature and verification
If leave granted, the suit deemed to be instituted from
the day of application
In case of representative suit – indigency in
representative capacity to be seen

In case of death – LR’s indigency to be separately

proved

Defendant can also file application for leave to sue as

pauper in case of set-off and counter claim
 Procedure
Application in person unless exempted
Examination of the applicant
The court can reject the application without notice to
other party (r. 5)
If does not comply with requirement
If he is not an indigent person
If fraudulently transferred property within two months before
No cause of action
Agreement to finance the suit
Agreement where other person has acquired some interest in the
subject matter
Barred
Notice of not less than ten days (r. 6)
to opposite party
To government pleader

Hearing of parties
Evidence
Permission
If application refusal – no further application (r. 15)
Court to provide pleader, if unrepresented
Withdrawl of permission (r.9)
On application by defendant/govt. pleader withdraw
such permission
If conduct is improper/vexatious
Not an indigent person
If agreement with other person
 Recovery of court fee
He succeeds (r. 10)
Cost shall be the first charge on the suit property
The court to calculate the amount
May be recovered from either party (discretion)

If indigent person
Fails (r.11)
Permission withdrawn (r.11)
Suit is abandoned or withdrawn
Suit is dismissed for (r.11)
Non service for failure to pay fee for service
Failure to present copies of plaint
Does not appear
R.V. Dev v. Chief Secretary, Govt. of Kerala, AIR 2007 SC 2698 –
Failure and dismissal
Where Claim partly allowed - Ram Saran and Others v State of Bihar and
Others [AIR 1959 Patna 384] – no provision in rule 10 or 11
Where plaintiff dies – abatement of suit – court shall
order recovery by State govt. from the estate of the
deceased (r. 11A)
State govt. can make an application anytime for
recovery of costs
Copy of every order u/r 10, 11, 11A to collector – he
can recover as arrears of land revenue
Appeals (S. 96-99A), O. XLI
Every decree per se appeallable
All orders not appealable. Only Orders detailed in
section 104 and O. XLIII appealable
Ex-party decree - 96(2)
No appeal from consent decree - 96(3)
Decree of small cause courts – no appeal except on
question of law or where subject matter is more than
10000
 Appeal
Meaning – Shankar Ramchandra Abhyankar v.
Krishnaji Dattatreya Bapat, AIR 1970 SC 1
Garikapati v. Subbiah Chaudhary, AIR 1957 SC 548
Continuation of the suit
Vested, substantive right
Creature of a statute – not an inherent right (Raj
Kumar Shivhare v. Assistant Director, Directorate of
Enforcement & Another, April 12, 2010)
No appeal against a dead person
 Appeal
Memorandum of Appeal
Grounds of appeal
Copy of judgment/decree
No other ground except with leave of the court O. 41(2)
Money decree – deposit the amount or furnish security
Memorandum of Appeal may be rejected or returned – reasons
to be recorded
Application for condonation of delay+ affidavit – shall – State
of Madhya Pradesh v. Pradeep Kumar (2000) 7 SCC 372
Stay of Execution/Proceedings – O
41 (5)
No automatic stay
Stay effective from date of communication to the court of
first instance
Affidavit by the appellant
Court of first instance and appellate court – both competent
to grant stay
Application without unreasonable delay
Substantial loss, if not stayed
Security taken for performance of decree/order
 Appeal
Court from whose decree appeal lies- shall entertain the appeal
(r. 9)
Date of presentation shall be endorsed
Shall be entered in register of appeal
Appeal within 30 days
Salem Advocate Bar Association v. Union of India, AIR 2003
SC 189
Appellate court may ask for security, however, if appellant
resides out of India and have no sufficient immovable property
– shall demand security
 Appeal
Summary dismissal (r. 11)
Must record reasons
If appellant does not appear – may dismiss
Application for re-admission
Appeal shall be heard within 60 days u/r 11
If not dismissed u/r 11 – notice to other party
Notice to be affixed in the appellate court, sent to the
original court and to the respondent or his pleader
Memorandum of appeal to accompany the notice
 Procedure on Admission
Right to begin
Dismissal for non appearance of appellant (r. 17)
Ex- parte (r. 17{2})
Application for re hearing – notice not served or
sufficient cause (r. 19)
Discretion to join certain persons as respondents –
limitation period (r. 20)
 Cross Objection (r. 22)
Within 30 days
Superintending Engineer v. Subba Reddy, AIR 1999 SC
1747
Appeal – Substantive Right
CO – like appeal
Court Fee
Appeal is withdrawn
Second chance to respondent
 Mahadev Govind Gharge & others v. Special Land
Acquisition Officer, Karnataka, 2011 SC (10-5-2011)

Respondent in an appeal is entitled to receive a notice of hearing of

the appeal as contemplated under Order XLI Rule 22 of the Code

Cross-objections are required to be filed within the period of one

month from the date of service of such notice or within such further
time as the Appellate Court may see fit to allow depending upon the facts and
circumstances of the given case.

The limitation of one month for filing the cross-objection as provided under
Order XLI Rule 22 of the Code shall commence from the date of service
of notice on him or his pleader of the day fixed for hearing the appeal.

Where a respondent in the appeal is a caveator or otherwise puts in appearance

himself and argues the appeal on merits including for the purposes of interim
order and the appeal is ordered to be heard finally on a date fixed
subsequently or otherwise, in presence of the said respondent/caveator,
it shall be deemed to be service of notice within the meaning of Order XLI
Rule 22. In other words the limitation of one month shall start from
Powers of the Appellate Court (S.
107)
Remand (r. 23, 23A) (S. 107 [1][b])
Frame issues and refer them for trial {107(1)(c), r. 25 & 26}
Final determination {107(1)(a), r. 24)
Take additional evidence (r. 27)
Refused to admit evidence
After Due diligence, evidence was not within the knowledge, or
could not have been produced
Court requires such evidence
Sufficient cause
Reasons to be recorded ‘shall’
K.Muthuswamy Gounder v. N. Palaniappa Gounder, AIR 1998 SC
3118
 R. 33 – Power of Court
To do full and complete justice between parties
Discretion
R. 33 is wider than r. 22
Grounds
Parties same
Questions have arisen out of the judgment of the lower
court
 Pralhad v. State of Maharashtra 2010
(10) SCC 458
The provision of Order XLI Rule 33 CPC is clearly an enabling
provision, whereby the appellate court is empowered to pass any decree
or make any order which ought to have been passed or made, and to
pass or make such further or other decree or order as the case may
require. Therefore, the power is very wide and in this enabling
provision, the crucial words are that the appellate court is
empowered to pass any order which ought to have been made as
the case may require. The expression "order ought to have been
made" would obviously mean an order which justice of the case
requires to be made. This is made clear from the expression used
in the said rule by saying"the court may pass such further or other order as
the case may require". This expression "case" would mean the
justice of the case. Of course, this power cannot be exercised ignoring a
legal interdict or a prohibition clamped by law.
 Judgment in Appeal
Points for determination

Decision

Reasons

Relief
 Decree in Appeal
Date of presentation
Date of decree in appeal
Number of the appeal,
Names, description of the parties
Relief
Costs
Signed and dated
Certified copy to the court
Second Appeal (S. 100) (O. XLII)
Second Appeal to High Court
90 days
From every decree passed in appeal by a court
subordinate to High Court
Ex Parte decree
No Second Appeal (value less than 25000) (S. 102)
Second appeal only on grounds mentioned in section
100 (Section 101)
No Letters Patent Appeal (S. 100A)
 Grounds of Appeal
High Court is satisfied
Case involves substantial question of law
Substantial question should be stated in MOA
High Court shall formulate such question
Kulwant Kaur v. Gurdial Singh Mann (2001) 4 SCC 262
Shall be heard only on such question
Any other substantial question (power of the High
Court)
 Issues of Facts
Generally second appeal only on issue of law

Evidence on record sufficient

Question has not been determined by Appellate court

and court of first instance

Question has been wrongly determined due to

decision on substantial question of law
Appeal against Orders (104,
O.XLIII)
P.S. Sathappan v. Andhra Bank, AIR 2004 SC 5152 –
Constitutional Bench decision
Appeal to Supreme Court (S. 109,
O. XLV)
Subject to Chapter IV of Part V of the Constitution
From judgment, decree or order of a High Court
Petition to the court whose decree is appealed from
That court to dispose off the application within 60 days
Petition shall state
Grounds of appeal and shall pray for a certificate

Only if High Court certifies

Substantial Question of law of general importance
In the opinion of High Court needs to be decided by the Supreme Court
Security and Deposit (r. 7)
Within 90+60 days or Within 6 weeks from the date
of certificate whichever is later

Security in cash or govt. securities for the cost and

expenses of translating etc

Further security

If fails to submit
Powers of the court pending appeal
Decree not to be stayed automatically

On special cause shown

Impound movable property
Allow execution after taking security
Stay execution
Such other order
Execution of Decree of Supreme
Court
Petition to High Court + certified copy of the decree
or order

Such court to transmit the record to the court of first

instance
Reference – s. 113, O. XLVI
Suit, appeal or execution proceedings pending
Question of law, custom or usage having the
force of law arises
Case is non appealable
The court trying suit, appeal or execution
entertains reasonable doubt
Questions relating to validity of any act, ordinance or
regulation – compulsory reference
Other questions – optional reference
Act, ordinance, regulation or the provisions are
invalid, inoperative, ultra vires in the opinion of lower
court

Not declared to be ultra vires by the HC or SC

The lower court can make reference suo motto or on

the application by the party
The lower court to draw a statement of reference
and send to HC
It can stay the proceedings or pass contingent
decree
To pass final decree in accordance with the advise
of the HC
Reference under Section 395 of Cr.PC
Reference under Article 228 of Constitution of India
Review – s. 114 and Order XLVII
Review – to reconsider or to look again by the same
court by the same judge
General rule – court become functus officio after
judgment/decree
Review – an exception and not to be used in routine
Review – a statutory right, creation of the courts of
equity
Person aggrieved can apply for review
 When review lies
When case is not appealable
When appealable but appeal not filed
Review of the judgment on a reference from a court of
small causes
Grounds
Discovery of new and importance matter or evidence
Mistake or error apparent on the face of record
Other sufficient reason
Explanation added in 1976

Limitation – 30 days

Application to be heard by same judges

Memorandum of review

Court can reject application without notice to other

party

If not rejected, notice to opposite party

If the applicant does not appear – application to be rejected
He can file an application for restoration – sufficient cause
– notice to opposite party
Order rejecting review – not appealable
Order granting review –appealable
Order on review – not reviewable
Review by HC
Review by SC
 Revision – s. 115
Revision lies to HC
Where no appeal lies
Case decided by subordinate court
Revision lies on the jurisdictional grounds
Exceeded jurisdiction
Not exercised jurisdiction vested in that court
Jurisdiction exercised with material irregularity or
illegality
Suo motto or on an application within 90 days
Object – Major S.S. Khanna v. Brig. F.J. Dhillon, AIR 1964
SC 497
No automatic stay of proceedings
No interference by HC on factual propositions howsoever
erroneous they may be
Section 115 vis-à-vis Article 227 of the Constitution
Pandurang Ramchandra Mandlik v. Maruti Ramchandra
Ghatge, AIR 1966 SC 153 – plea of limitation and res judicata
- jurisdiction
Interlocutory orders

Other alternative relief

EXECUTION (Ss. 36-74, O. XXI)
Execution – Meaning
Shyam Singh v. Distt. Collector, Hamirpur, 1993 Supp (1)
SCC 693
General Principles
A court executing a decree cannot go behind the decree : between
the parties or their representatives it must take the decree
according to its tenor, and cannot entertain any objection that the
decree was incorrect in law or on facts. (Vasudev Dhanjibhai Modi
v. Rajabhai Abdul Rehman & Ors. 1970 (1) SCC 670 )
Decree passed by a Court inherently lacking jurisdiction – nullity
– inherent lack must be apparent. (C. Gangacharan v. C.
Narayanan, 2000 (1) SCC 459 and Bhawarlal Bhandari v.
Universal Heavy Mechanical Lifting Enterprises 1999 (1) SCC
558)
 Execution – General
Principles
The Executing Court is required to execute the decree
as it is and it has no jurisdiction to widen its scope or
to add to it unless a specific question was raised
relating to discharge or satisfaction of the decree as
envisaged in Section 47 of the Code of Civil
Procedure. (Vedic Girls Senior Secondary School
Arya Samaj Mandir, Jhajjar v. Smt. Rajwanti & Ors,
AIR 2007 SC 1779)
Territorial Jurisdiction
Decree Vague and Ambiguous
Change in circumstances
Court competent to execute decree
(S. 38)
Court which passed a decree (s. 37)
Court of First instance
Appellate decree- Court of first instance
If court of first instance ceases to exist – the court which would
have jurisdiction on the day of the application to try the suit
If court of first instance ceases to have jurisdiction - the court
which would have jurisdiction on the day of the application to
try the suit
Expl. Added in 1976
Jahar v. Kamini Devi, ILR (1901) 28 Cal. 238
Ramier v. Mithu Krishna Aiyyer AIR 1932 Mad. 418
Merala Ramanna v. Nallaparaju, AIR 1956 SC 87

Court to whom it is sent for execution

Transfer of Decree (Ss. 39-
42)
On application or suo motto
Judgment debtor
actually and voluntarily resides
Carry on business
Personally work for gain within the jurisdiction of another court

No property within the jurisdiction of the court but has in the

jurisdiction of other court
Decree is for sale or delivery of immovable property situate
in the jurisdiction of another court
Any other reason to be recorded in writing
Powers of the transferee court (s.
42)
Same powers as if passed by the transferee
court itself
Can execute or transfer for execution
Power to execute against the LRs of deceased JD
Power to order attachment etc.
Limitations on power
No power to execute the decree on the application
of transferee of a decree
No power to grant leave to execute the decree
passed against a partnership firm against a person
not summoned as partner
 Execution of Foreign Decrees
(s. 44A)
Decree of superior court of reciprocating territory
Certified copy of decree
Certificate regarding non satisfaction/part satisfaction of
decree
Filed in District Court
To be executed as if District Court has passed such a
decree
District court to see that the decree not hit by section 13
Section 47 applicable
 Precepts (S. 46)
Command given by a court to another competent
court

To attach the property (specified in the order) of the

judgment debtor

Application by DH

Period – 2 months – can be extended

S. 47 - Brakewel Automotive Components India Pvt. Ltd. v. P.R.
Selvam Alagappan (2017) 5 SCC 371
An Executing Court can neither travel behind the decree nor sit in
appeal over the same or pass any order jeopardizing the rights of the
parties thereunder. It is only in the limited cases where the decree is by
a court lacking inherent jurisdiction or is a nullity that the same is
rendered non est and is thus inexecutable. An erroneous decree cannot
be equaled with one which is a nullity. There are no intervening
developments as well as to render the decree inexecutable.

As it is, Section 47 of the Code mandates determination by an

executing court, questions arising between the parties or their
representatives relating to the execution, discharge or satisfaction of
the decree and does not contemplate any adjudication beyond the same.
A decree of court of law being sacrosanct in nature, the execution
thereof ought not to be thwarted on mere asking and on untenable and
purported grounds having no bearing on the validity or the
executability thereof.
Garnishee order (O. XXI, r. 46A-
46I)
Inserted by 1976 amendment

Garnishee – Judgment debtor’s debtor

Garnishee order to be issued in case of debt owed to

JD and the debt is other than mortgage debt or debt
secured by a charge

Application of the DH/attaching creditor

Application on an affidavit
Notice to garnishee
To pay or show cause
If he does not pay or show cause – order against
him – such order to be decree against him
If he disputes liability – such question to be tried
Payment by garnishee to be valid discharge
Garnishee order is appealable as a decree
 Application for execution
Who can make application
Decree holder
Transferee of decree
LR’s of deceased DH
Representatives of DH
Any person claiming under the decree
Any one or more of the joint DHs
In representative suits, persons represented whether on record or not
Other persons (receiver, agent, beneficiary etc.)

Against whom application can be made

JD
LRs of deceased JD
Surety of JD
Representative of JD
Person claiming under JD
Application for execution
Oral Application (r. 11[1])
Written application
Suit number
Name of parties
Date of decree
Whether any Appeal from decree
Any adjustment or payment out of decree
If previous application filed – dates and result
Amount of interest, relief, cross decree etc.
Cost
Against whom execution sought
Application for execution
Certified copy of the decree to be filed
Mode of execution
Delivery of property
Attachment and sale
Sale without attachment
Arrest and detention (grounds to be stated + affidavit)
Appointment of receiver
Or other modes
If application for attachment of movable property not in JD’s
possession – description of the property
Application for attachment of immovable property –
description, survey numbers, share of the JD
Court may ask for extracts from Tehsildar’s recordds
Joint Decree Holders (r. 15)
Decree passed jointly in favour of some persons

Any one or more of such persons

Application for the execution of whole decree

For the benefit of all

If court satisfied, it can order execution

Transfer of Decree (O. XXI
r.16)
Decree/order capable of execution can be
transferred by
Assignment in writing
Operation of law

Application for execution only in the court

which passed the decree
Notice to
Transferor
Judgment Debtor
 Procedure on receiving application
If application is not as per requirements court shall order the compliance (r. 17)
If defect not remedied – rejection
Amendment of application
If application is defect free,
entry in register
Date of presentation
Notice (r. 22)
No notice ordinarily
Notice required when
Application is made after two years
Application against LRs
Application u/s 44A
Application by transferee of decree
Application against assignee or receiver
Where decree is for payment of money and execution by arrest and
detention (r. 37)
Application against surety (s. 145)
Appearance of parties and consequences of non
appearance

Hearing of the application (r. 105-106)

Res judicata (Expl. VII)

Limitation Period
Mandatory injunction – Three years
Other decrees - 12 years
Cross Decrees (r. 18) and cross
claims (r. 19)
Cross Decree
Two Decrees in two separate suits
Decrees for payment of money (ascertained sum)
Application for execution of both
Same court
Same parties
Same capacity
Cross Claims
One suit
Claims of both
Stay of Execution (r. 26-29)
Application to be made
Court which passed a decree
Appellate court
Transferee Court on sufficient cause being shown –
temporary stay
Security from the JD
Such terms and conditions

Where property seized or person under detention, the court

which passed decree may order restitution or release
pending the decision on application
 Stay of Execution
Suit by JD against the DH
An application for execution against JD by DH
‘Such court’ – same court (Shaukat Hussain v. Bhuvneshwari Devi,
AIR 1973 SC d 528)
Decree may be stayed till the suit is decided
Stay by original court and after 1976 also by transferee court
If decree for payment of money and no security taken – reasons to
be recorded
Purpose
To enable the JD and DH to adjust their claims
Prevent multiplicity of execution proceedings
Modes of Execution (s. 51)
Modes of Execution
Delivery of property specifically decreed
Attachment and sale
Sale without attachment
Arrest and detention
Receiver
Other modes as the relief may require
Choice of mode of execution
Simultaneous modes of execution
Discretion of Court
 Decrees and Modes of
Execution
Decree for payment of money = arrest or
attachment or both (r. 2, 30)
Decree for specific movable property (r. 31)–
seizure and delivery or arrest or attachment or
both –
If attachment remained for more than 3 months and
JD has not obeyed the decree – application for sale
If no application made within 3 months, or the
decree satisfied or application refused, the
attachment shall come to an end
Decree for specific performance – r. 32 – arrest and detention or attachment
or both
Injunction - arrest and detention or attachment or both
If decree for doing specific act under decree for specific performance or
injunction and not obeyed, the court can appoint any person including DH to
do such act
Decree for restitution of conjugal rights – attachment of property
If decree for restitution against husband – r. 33 - maintainance
If these decrees are against Corporation – attachment or arrest (with the
permission of court)
If attachment remained for six months and decree not obeyed – DH
application – Sale
If no application made within 6 months, or the decree satisfied or application
refused, the attachment shall come to an end
Decree for execution of document or endorsement
on negotiable instrument –r.34 - JD neglects or
refuses – DH may prepare and deliver it to court
Decree for delivery immovable property – r. 35 –
Actual Possession or Symbolic Possession
Decree for joint possession of immovable property
– affixing notice and beat of drums or other modes
Decree against firm – R. 50
Execution against the property of partnership
Against any person who appeared as a partner
Any person who has been adjudged to be a partner
Any person who has been served as partner but
has failed to appear
Against other persons – if not
summoned/adjudged as partner – with the leave of
court
Attachment of Decrees
Decree for payment of money
Decree for sale in enforcement of mortgage or charge

If decrees passed by same court – by order

If passed by another court – notice to such other court

Arrest and Detention as a mode of
execution (ss. 51, 55-59, rules 37
-40)
If decree for payment of money (proviso to S. 51)
Notice to JD
Court satisfied – reasons to be recorded –
JD with the object of delaying or obstructing
Likely to abscond
Dishonestly transferred, concealed or removed
Had the means to pay but neglected or refused
JD was bound in a fudiciary capacity
 Arrest and Detention
Exemptions from arrest and detention u/s 135
Notice u/r 37
No dwelling house to be entered after sunset and before sunrise
(s. 55)
No outer door to be broken open unless in the occupancy of JD
and he refuses access thereto
If the room is in the actual occupancy of pardanashin lady (not
the JD) – reasonable time and opportunity/facility to withdraw
Court’s duty to inform that he may apply for being declared as
an insolvent
Women not to be arrested if decree is for payment of
money – s. 56
Subsistence allowance – s. 57
Detention period – s. 58
Upto 2000 – no arrest
2000-5000 – six weeks
Beyond 5000 – three months

Release of the JD
 Attachment of Property
Properties liable to attachment (s. 60)
Lands, houses, buildings, goods, money, bank notes,
cheques, bills of exchange, hundis, promissory notes,
govt. securities, bonds, other securities, debts, shares in
corpn and All other saleable properties which JD
can dispose of for his benefit
 Properties Exempt from attachment

Necessary wearing apparels, cooking vessels, beds, bedding of JD, wife,

children
Personal ornaments – religious usage
Tools of artisans, agriculturist, implements of husbandry, cattle, seed grain -
necessary to earn livelihood, exempted portion of agricultural produce
Houses and buildings of an agriculturist or a labourer, domestic servant
Books of account
Mere right to sue for damages
Right of personal service
Stipends and gratuities of pensioners of govt., local authorities
Wages of laboureres, domestic servants
Salary – maintenance decree – 1/3
Salary – other decrees – 1000+2/3
Pay and allowances of soldiers, airmen, naval men
CPF, PF
PPF
Amount received from LIC
Allowances from govt., railway company etc.
Expectancy of succession by survivorship
Right to future maintenance
Exempt allowances
Movable Property exempt from attachment under order for recovery of
land revenue
Mode of attachment (r, 43-54)
Movable property – seizure
Livestock, agricultural implements – custodian/supurdari
basis
Movable property not in possession of JD – order of
prohibition
Negotiable instrument – seizure
Debt- order of prohibition
Share in capital – order of prohibition
Share in movable property – notice to the JD
Salary – notice to DO
Partnership property – order and appointment of
receiver
Property in custody of police officer – notice
Decree – by notice – r. 53
Agricultural produce – affixing notice
Immovable property – order of prohibition to JD – r.
54
Determination of attachment
Decree satisfied – r. 55
Decree reversed, set aside
Objections against attachment accepted – r. 58
Application of execution dismissed (s. 57)
Attachment withdrawn by the creditor
Attachment abandoned by the creditor
Agreement between the parties
Attachment before judgment – security furnished
 Sale as a mode of execution ss. 65-
74, rules 64-96
Application for sale
Auction
Proclamation of sale – r. 66
Notice to DH and JD
Time of sale – r. 68 – minimum 7 days in case of movable property and
15 days in case of immovable property from the date of proclamation
Adjournment of sale – r. 69
DH not to bid without permission
No officer of the court to bid
Mortgagee not to bid without the leave of the court
Sale only of that much property which is sufficient to discharge decre e
 S. Mariyappa (Dead) by LRs. And
Ors. v. Siddappa and Anr. (2005 (10) SCC 235).
"necessary to satisfy the decree". Use of the said expression clearly
indicates the legislative intent that no sale can be allowed beyond the
decretal amount mentioned in the sale proclamation. In all execution
proceedings, Court has to first decide whether it is necessary to bring
the entire property to sale or such portion thereof as may seem
necessary to satisfy the decree. If the property is large and the decree to
be satisfied is small the Court must bring only such portion of the
property the proceeds of which would be sufficient to satisfy the claim
of the decree holder. It is immaterial whether the property is one or
several. Even if the property is one, if a separate portion could be sold
without violating any provision of law only such portion of the property
should be sold. This is not just a discretion but an obligation imposed on
the Court. The sale held without examining this aspect and not in
conformity with this mandatory requirement would be illegal and
without jurisdiction. The duty cast upon the Court to sale only such
portion or portion thereof as is necessary to satisfy the decree is a
mandate of the legislature which cannot be ignored.
 M/s. Mahakal Automobiles & Anr
v. Kishan Swaroop Sharma, AIR 2008 SC 2061

When a property is put up for auction to satisfy a decree of the

Court, it is mandatory for the Court executing the Decree, to comply
with the following stages before a property is sold in execution of a
particular decree:
Attachment of the Immoveable Property:
Proclamation of Sale by Public Auction;
Sale by Public Auction

Each stage of the sale is governed by the provisions of the Code.

For the purposes of the present case, the relevant provisions are
Order 21 Rule 54 and Order 21 Rule 66. At each stage of the
execution of the decree, when a property is sold, it is mandatory that
notice shall be served upon the person whose property is being sold
in execution of the decree, and any property which is sold, without
notice to the person whose property is being sold is a nullity, and all
actions pursuant thereto are liable to be struck down/quashed.
Deshbandhu Gupta v. N.L. Anand and Rajinder
Singh [1994(1) SCC 131]

"The absence of Notice causes irremediable injury to the

judgment debtor. "The Proclamation should include the
estimate, if any, given by either judgment-debtor or decree
holder or both the parties. Service of Notice on judgment-
debtor under Order 21 Rule 66 (2) unless waived by
appellants or remained ex-parte, is a fundamental step in
the procedure of the Court in execution, judgment-debtor
should have an opportunity to give his estimate of the
property. The estimate of the value of the property is a
material fact to enable the purchaser to know its value. It
must be verified as accurately and fairly as possible so that
the intending bidders are not mislead or to prevent them
from offering inadequate price or to enable them to make a
decision in offering adequate price.
 Chilamkurti Bala Subrahmanyam v.
Samanthapudi Vijaya Lakshmi (2017) 6 SCC 770

It is not the material irregularity that alone is

sufficient for setting aside of the sale. The
judgment debtor has to go further and establish
to the satisfaction of the Court that the material
irregularity or fraud, as the case may be, has
resulted in causing substantial injury to the
judgment-debtor in conducting the sale. It is
only then the sale so conducted could be set
aside Under Order 21 Rule 90(2) of the Code.
Auction purchaser to pay 25% immediately and
balance within 15 days

If he fails, property to be re sold

Auction purchaser liable for loss

Confirmation of Sale/Setting aside
of Sale
On deposit (r. 89)
Within 60 days
Application by
JD
Co-sharer
Receiver
Creditor of JD
Member of HUF
Mortgagee
Lessee
Beneficial owner

Notice
Irregularity or fraud – r. 90

Material irregularity

Substantial loss

Application by
JD
Auction purchaser
Share/interest in property
JD having no saleable interest – r. 91

Application by auction purchaser

Confirmation of sale –r . 92

Confirmation relates back to the date of sale

Certificate to purchaser
Delivery of Property – r. 79-81, 97-
106, section 74
Movable property seized – by delivery
Movable property not in possession of JD – by notice
Debt not secured – order of prohibition
Share in corpn. – order of prohibition
Negotiable instrument – by execution of document
Other properties – by order vesting the property
Immovable property – actual possession/khas
possession
Symbolic possession
THANK YOU