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%&%L '(!E)*(E !)E
M!)EL AN+$E( 'A'E(
The fundamental principle of English la is that here there is a right
there is a remed! (U"i #us i"i remedium) and the same has "een adopted
"! the Indian legal s!stem. $ence a litigant ha%ing a grie%ance of ci%il
nature has a right to institute a ci%il suit in the competent ci%il court. &i'e
ise a litigant should 'no here to file a suit depending upon the nature
of the suit.
(eaning of )urisdiction: )urisdiction ma! "e defined to "e the poer
or authorit! of a court to hear and determine a cause* to ad#udicate and
e+ercise an! #udicial poer in relation to it. In other ords it is meant the
authorit! hich in a court has to "e decide matters that are litigated "efore
it or to ta'e cogni,ance of matters presented in a formal a! for its
$ence the fundamental principle is esta"lished that a decree passed
"! a court ithout #urisdiction is a nullit! and that its in%alidit! could "e set
up at an! time and such a defect cannot "e cured e%en "! the consent of
-E.TION /: 0 ci%il court has #urisdiction to tr! all suits of a ci%il nature
unless the! are "arred.
(1)The suit must "e of a ci%il nature and
(1)The .ogni,ance of such a suit should not ha%e "een e+pressl! or
impliedl! "arred.
(1)Suit of civi !"tu#$: The first condition hich must "e satisfied is
that the suit must "e of a ci%il nature. The ord ci%il has not "een
defined in the code* "ut according top the dictionar! meaning it
pertains to pri%ate rights and remedies of a citi,en as distinguished
from criminal* political* etc. "ut the ord nature has "een defined as
the fundamental 2ualities of a person or a thing* identit! or essential
character* sort or 'ind* etc. Thus a suit is of a ci%il nature if the
principal 2uestion therein relates to the determination of the a ci%il
right and enforcement thereof. It is not the status of the parties "ut
the su"#ect matter hich determines hether or not the uit is of
ci%il nature.
Thus the ord ci%il nature is ider than the ord ci%il proceedings
"ecause it is made a%aila"le in e%er! case here the dispute as the
charatersitic of affecting one3s rights hich are not onl! ci%il "ut of ci%il
nature. 4or eg: suits relating to right to propert!* right to orship* for
specific relief* for rent* etc. -ome of the egs for suit not of ci%il nature are:
-uits in%ol%ing principall! caste 2uestions* purel! religious rites or
ceremonies* etc.
(1)Co%!i&"!c$ !ot '"##$(: 0 litigant ha%ing a grie%ance of a ci%il
nature has a right to institute a ci%il suit unless it is "arred* either
e+pressl! or impliedl!.
(i) -uits e+pressl! "arred:5 0 suit is said to "e e+pressl! "arred
hen it is "arred "! an! enactment for the time "eing in force. it
is open to a competent legislature to "ar #urisdiction of ci%il
courts ith respect to a particular class of suits of a ci%il nature.
6ut if the remed! pro%ided "! a statue is not ade2uate and all
2uestions cannot "e decided "! a special tri"unal* the
#urisdiction of a ci%il court is not "arred.
(ii) -uits impliedl! "arred:50 suit is said to "e impliedl! "arred
hen it is "arred "! general principles of la. 7here a specific
remed! is gi%en "! a statute* it is there"! depri%es the person
ho insists upon a remed! of an! other form than that gi%en "!
the statute. .ertain suit though of a ci%il nature are "arred from
the cogni,ance of a ci%il court on the ground of pu"lic polic!.
.onclusion: 4rom the %arious decisions of the -upreme .ourt the
general principles relating to #urisdiction of ci%il court emerged.
)*No* +,'- Fo#$i%! Ju(%.$!t:
A!/0$# !o +,'
(eaning: It means that #udgment of foreign court and a foreign court
means a court situated outside India and not esta"lished "! the
authorit! of the .entral 8o%ernment.
-ection 19 of ..:... em"odies hether the principle of res#udicata
could "e applied in case of foreign #udgment. The #udgment of a
foreign court is enforced on the principle international la and certain
rules are recogni,ed common to ci%ili,ed #urisdictions. -uch
recognition is accorded not as an act of courtes! "ut on
considerations of #ustice* e2uit! and good conscience.
6inding nature of foreign #udgments: 4oreign #udgments shall "e
conclusi%e as to an! of the matters there"! directl! ad#udicated upon
"eteen the same parties or "eteen parties under hom the! or
an! of them claim litigating under the same title.
In the folloing si+ case a foreign #udgment is not conclusi%e: e+c
(i) 7here it has not "een pronounced "! the court of competent
(ii) 7here it has not "een gi%en on the merits of the case.
(iii) 7here it appears on the face of the proceedings * to "e found
on the incorrect %ie of international la or refuse to appl! the
Indian la.
(i%) 7here the #udgment as o"tained are opposed to natural
(%) 7here it has "een o"tained "! fraud.
(%i) 7here it is sustains a claim founded on "reach of an! la in
force in India.
(E0NIN8: Order ; : 0 plaint is a statement of claim* a document* "!
presentation of hich the suit is instituted or it states the grounds upon
hich the assistance of the court is sought "! the plaintiff.
E--ENTI0& E&E(ENT- O4 0 :&0INT: <ules 15= e+plains a"out it:
(1)The name of the court in hich the suit is "rought
(1)The name description and place of residence of the plaintiff and
defendant. $oe%er there can more than one defendant or more than
one plaintiff. 0ll particulars such name father3s name* age*
occupation* place of residence hich are necessar! for identif!ing the
parties must "e stated in the plaint.
(9)The facts constituting the cause of action and hen it arose. E%er!
suit must ha%e a cause of action and if there is no cause of action
then the plaint shall "e re#ected. C"u/$ of "ctio! .$"!/ " 'u!($
of f"ct/: 0;ic; i/ !$c$//"#< fo# t;$ ="i!tiff to =#ov$ '$fo#$ ;$
c"! /ucc$$(* it refers entirel! to the grounds set forth in the plaint as
the cause of action. In >uldeep singh ?. 8anpat lal case the supreme
court has held the purpose "ehind the re2uirement that the plaint
should indicate hen the cause of action arose is to help the court in
ascertaining hether the suit is "arred "! limiotation.
(@)The facts shoing that the court has #urisdiction. The plaint must
state all the facts shoing ho the court has pecuniar!* territorial or
su"#ect matter #urisdiction in a suit "ecause on the "asis of the
#urisdiction itself the courts can frame the issues to that effect and
decide the same.
(A)0 statement of the %alue of the su"#ect matter of the suit for the
purpose of #urisdiction and court fee should "e stated in the plaint.
(B)It is necessar! for the plaintiff to sho hether the suit is "arred "!
limitation and if so the ground for e+emption.
(;)The reliefs claimed "! the plaintiff should "e stated in the plaint and
the! should "e specificall! pra!ed for. The plaintiffs are entitled for
one or more reliefs in respect of the same cause of action. If he omits
to claim an! of the reliefs he ill not afterards "e alloed to sue for
the relief so omitted.
<E)E.TION O4 0 :&0INT:
The plaint shall "e re#ected under the folloing circumstances:
(1)7here the plaint does not disclose the cause of action
(1)7here the relief claimed is under%alued
(9)7here plaint is insuffiecientl! stamped
(@)7here a suit appears to "arred "! la.
.ON.&U-ION: 0ll the a"o%e essential of the palint should "e folloed at
the filing of the suit and if the #udge re#ects the plaint on an! of the a"o%e
grounds the #udge ill pass the order to thart effect and ill record reasons
for the same further the plaintiff is precluded from presenting a fresh plaint
in respect of the same cause of action.

>*No*1,'- COUNTER CLAI3:
.ounter claim ma! "e defined as a claim made "! the defendant in a suit
against the plaintiff. Therefore a defendant in a suit ma! in addition to his
right to plead a set5off ma! also set up a counter claim. In simple ords
counter claim is su"stantiall! a cross action. The court has the poer to
treat the counter claim as a cross suit and hear the original suit and
counter claim together if the counter claim is properl! stamped.
O6)E.T: 0fter the amendment 0ct of 1/;B* a specific pro%ision has "een
made for counter claim "! inserting <ules B50 to B58. .ounter claim is
recommended to a%oid multiplicit! of proceedings . The pecuniar!
#urisdiction of the court cannot "e ousted and the poer to tr! the suit
alread! entertained cannot "e ta'en aa! "! accepting the counter claim
"e!ond its pecuniar! #urisdiction.
 The counter claim has the effect of a cross suit and court can
pronounce a final #udgment "oth on original claim and the counter
 The counter claim of the defendant ill "e treated as a plaint and the
plaintiff has the right to file a ritten statement in anser to the
counter claim of the defendant.
 The effect oCf the counter claim is that e%en if the suit of the plaintiff
is sta!ed* discontinued* dismissed or ithdran* the counter claim
ill "e decided on merits and the defendant ill ha%e the right of
 The counter claim shall "e treated as plaint and go%erned "! the
rules applica"le to plaints.
 -imilarl! a ritten statement filed in anser to the counter claim shall
"e treated as ritten statement and go%erned "! rules applica"le to
ritten statement.
INTRODUCTION: 0fter the decree holder get the decree in his fa%our the
suit doesn3t come to an end* the ne+t step to commence is the e+ecution of
the decree. The principles go%erning e+ecution of decrees and orders are
dealt ith section 9B5;@ and order 11 contains 1CB rules and hence is the
longest of all the orders in the code.
3EANIN6: Nohere in the code has the term e+ecution "eing defined. In
the idest sense* the e+pression e+ecution signifies the enforcement or
gi%ing effect to the #udgment and the orders "! the process of the court* so
as to ena"le the decree holder to reali,e the fruits of the decree.
3ODES OF EXECUTION: 0fter the decree holder files an application for
e+ecution of a decree* the e+ecuting court can enforce e+ecution. -ection
A1 of the code defines the #urisdiction and poer of the court to enforce
e+ecution. This section enumerates in general terms the %arious modes in
hich the court ma! order e+ecution of the decree according to the relief
granted in fa%our of the decree holder. It is for the decree holder to decide
hich of the se%eral modes he ill e+ecute his decree* "ut hoe%er these
modes are su"#ect to certain conditions and limitations prescri"ed in the
0ll the %arious modes mentioned in -ection A1 are not open to an
e+ecuting court in e%er! case* it is guided "! the procedure laid don in the
schedule and must resort to the methods appropriate to each case.
(1)Deli%er! of propert!:
(a)(o%a"le propert! : -ection A1 (a) : 7here the decree is for an!
specific mo%a"le propert! it ma! "e e+ecuted "! sei,ure and deli%er!
of the propert!* or detention of the #udgement5 de"tor* or "! the
attachment of his propert!* or "! attachment and detention "oth.
-pecific mo%a"le propert! does not include mone! and therefore the
decree for mone! cannot "e e+ecuted under <ule 91. 7here the
propert! is in possession of the third part! the pro%ision of the rule
do not appl!.
Immo%a"le propert!: <ules 9A and 9B pro%ide the mode of e+ecuting
decrees for possession of immo%a"le propert!.7here the possession
of immo%a"le propert! is ith #udgement de"tor then it can "e
e+ecuted "! remo%ing the person and handing o%er to the decree
holder. :oc9ession delie%ered in this manner is 'non as >has or
actual possession. 6ut if such propert! is in the possession of a
tenant or other person entitled to occup! the same or not "ound "!
the decree* the deli%er! of the propert! should "e made "! affi+ing a
cop! of the arrant at some conspicuous place of the propert! and
proclaiming to the occupant "! "eat of drum or an! other customatrr!
mode. This is 'non as s!m"olic or formal possession.
(1)0ttachment and sale of propert!: -ection A1 ("):
This section empoers the court to order e+ecution of a decree "!
attachment and sale or "! sale ithout attachment of an! propert!.
• The court is competent to attach the propert! if it is situated
ithin the local limits of the #urisdiction of the court.
• The attachment of the propert! ithout an attachment is not
%oid or ithout #urisdiction and does not %itiate the sale. It is
merel! an irregularit!.
• <ule A@ pro%ides the procedure for the proclamation of such
(9)0rrest and detention: -ection A1 (c):
This is one of such modes of e+ecuting a decree is arrest and
detention in ci%il prison of the #udgment de"tor.
• 7here the decree is for pa!ment of mone!* e+ecution "! this
mode should not "e ordered unless after gi%ing the #udgment
de"tor an opportunit! of shoing cause h! he should not "e
detained and the court should record the reasons in riting.
• That the #udgment de"tor ith o"#ect of o"structing or dela!ing
the e+ecution of the decree.
• The #udgment de"tor has or has had since the date of the
decree the means to pa! the amount of the decree or some
su"stantial part thereof and refuse or neglects to pa! the same.
• The decree is for the sum hich the #udgement de"tor as
"ound to pa! in a fiduciar! capacit! to account.
• The to fold o"#ect of this mode is to ena"le the decree holder
to reali,e the fruits of the decree passed in his fa%our and on
the other hand it protects the #udgement de"tor ho is not in a
position to pa! the dues for reasons "e!ond his control or is
una"le to pa!.
(@)0ppointment of recei%er: -ection A1 (d):
This mode is also 'non as e2uita"le e+ecution and is entirel! ithin
the discretion of the court and it cannot "e claimed as of right. Thus it
is an e+ception remed! and %er! strong case must "e made out in
support of it. The courts must also "e satisfied that the appointment
of a recei%er is li'el! to "enefit "oth the decree holder and the
#udgement de"tor rather than a sale of the attached propert!. The
decree holder cannot "e permitted to pra! for the appointment of
recei%er in respect of the propert! hich has "een e+pressl!
e+cluded from the attachment "! the statute. Eg: :ro%ident fund.
.ON.&U-ION: The modes of e+ecution ha%e to "e read along ith
other rules of the .i%il procedure code for the procedure and other
rules regarding the proceedings.
)*!o 8,'- AFFIDAVITS
The e+pression 0ffida%it has not "een defined in the code. $oe%er
it means a sorn statement in riting made especiall! under oath or
on affirmation "efore an authori,ed officer or magistrate. 0n 0ffida%it
is a declaration of fact* made in riting and sorn "efore a person
ha%ing authorit! to administer oath. E%er! affida%it should "e dran
up in the first person and should contain onl! the facts and not
-ome of the essentials of an 0ffida%it:
(a)There must "e a declaration made "! the deponent.
(")It must "e in riting
(c) It must "e in the first person and
(d)It must ha%e "een sorn or affirmed "efore an authori,ed officer.
Importance of an affida%it:
• The courts ma! order that an! fact ma! "e pro%ed "! affida%it.
• The fact has to "e pro%ed "! oral e%idence.
• The opposite part! has a right to ha%e the deponent produced
for cross e+amination.
• 0ffida%its should "e confined to such facts as the deponent is
a"le to pro%e of his personal 'noledge* e+cept in interlocutor!
• The statements of his "elief ma! "e admitted.
• 0ffida%its must "e properl! %erified and are in conformit! ith
the rules* or else the! ill "e re#ected "! the court.
The suits ma! "e di%ided into to classes namel!: (1) suits in general and
(1) suits in particular cases. The main difference "eteen the to is the
procedure re2uired to "e folloed. -ection ;/ to /9 and order 1; and 9;
deal ith the suit in particular cases.
:rocedure to folloed in -uits "! or against go%ernment or pu"lic officer:
,"-Tit$: /$ctio! 79
-uits "! or against go%ernment or pu"lic officers: -ection ;/5=1:
In suits "! or against the go%ernment* the authorit! to "e named as plaintiff
and defendant * shall "e

(1)In the case of suit "! or against the .entral go%ernment* the union of
India* and
(1)In the case of a suit "! or against the -tate 8o%ernment the state.
,'-Notic$: S$ctio! @A
• In ordinar! suits notice need not "e gi%en to the defendant "!
the plaintiff "efore filing of the suit. -uch notice is a condition
precedent "efore filing a suit against the go%ernment or against
a pu"lic ser%ant in respect of an! act purporting to "e done "!
such pu"lic officer in his official capacit! e+cept here an
urgent or immediate relief is re2uired to "e o"tained.
• 0nd no suit can "e filed until the e+piration of to months ne+t
after such notice in riting hich has to "e deli%ered to* or left
at the office of
• In case of a suit against the .entral 8o%ernment e+cept
<aila! to the -ecretar! to that go%ernment.
• In case of a suit against the .entral 8o%ernment here it
relates to raila! the general manager of that raila!.
• In case of suit against state of )and > the chief -ecretar! to
that go%ernment or an! other officer authori,ed in that "ehalf.
• In case of a suit against an! other -tate go%ernment* a
secretar! to that go%ernment or the collector of that district
• 0nd in case of a pu"lic officer such pu"lic officer.
S$ctio! @A ($"/ 0it; t0o c"//$/ of c"/$/:
-uits against the go%ernment the notice must "e gi%en in all cases
6ut in suits against the pu"lic officers notice is necessar! onl!
here the suit is in respect of an! act purporting to "e done "!
such pu"lic officer in his official capacit!.
E//$!ti" #$>ui#$.$!t/ u!($# S$ctio! @A:
• Name* description and place of residence of the plaintiff
• 0 statement of the cause of action and
• 0 statement of the relief claimed "! him
• Notice in riting has to "e delie%ered to or left at the office of
the appropriate authorit!.
• 7hether the suit is instituted after the e+piration of the to
months ne+t after notice has "een ser%ed.
The suit "! or against the go%ernment* the plaint and ritten
statement shall "e signed and %erified "! an! person appointed "!
the go%ernment ho is ac2uaint anted ith the facts and
circumstances of the case.
<easona"le time to file the ritten statement should "e gi%en to the
.ounsel for the state need not file %a'latnama.