QUESTION 1

Defined Injunction and state its kind, what is the object of granting
temporary injunction? What are the grounds and aim of granting
temporary injunction? When can a temporary injunction be granted?

DEFINED INJUNCTION
The term ‘injunction’ has been the subject of various attempts at a definition. It has been
defined by Joyce as, “An order remedial, the general purpose of which is to restrain the
commission of some wrongful act of the party informed”.
Burney defined injunction as, “a judicial process, by which one who has invaded or
threatening to invade the rights of another is restrained from continuing or commencing such
wrongful act”.
The most expressive and acceptable definition is the definition of Lord Halsbury. According
to him, “An injunction is a judicial process whereby a party in an order to refrain from doing
or to do a particular act or thing”.

For example, if it so happens that a person is demolishing a building you have possible
claims on, you may ask the competent court to order such person to not demolish the building
until the trial for the claim of the building is complete and judgement goes in his favour.
What if you move into a new house, and your new neighbors play loud music in the middle
of the night, every single day? What happens if a baseball stadium is built next to your house,
and lights shine in on you every night preventing you from sleeping? These are situations
where you may ask the offending party to stop doing something that is bothersome and a
nuisance to you. However, there are times when simply asking does not resolve the problem.
In such a case, you may seek to go to court to ask the judge to intervene in the situation and
force the offensive party from continuing to behave in the problematic manner. In order to do
so, you would file an injunction.
The law of injunction has been provided for by the Specific Relief Act, 1963 (hereinafter, the
Act), and is also regulated by the Code of Civil Procedure, 1908 in India.

KINDS OF INJUNCTION
There are basically two types of injunction as provided by section 36 of the Specific Relief
Act, 1963. Section 36 of the Specific Relief Act with the head ‘Preventive relief how granted’
reads as, “Preventive relief is granted at the discretion of the court by injunction, temporary
or perpetual”. As per provisions of section 36 injunctions are either temporary (interlocutory)
or perpetual.
Temporary and perpetual injunctions are defined under Section 37 of the Specific Relief
Act which reads as:
1. Temporary injunctions are such as to continue until a specified time, or until further
order of the court and they may be granted at any stage of a suit, and are regulated by
the Code of Civil Procedure, 1908.
2. A perpetual injunction: It can only be granted by the decree made at the hearing and
upon the merits of the suit, the defendant is thereby perpetually enjoined from the
assertion of a right, or from the commission of an act which would be contrary to the
rights of the plaintiff”.
3. Perpetual Injunctions: It may be granted, at the discretion of the court, to prevent the
breach of an obligation existing in the plaintiff’s favor, whether expressly or by
implication.
4. Mandatory Injunction: If the court finds it necessary and within its capability, to
compel the performance of an act, to prevent the breach of an obligation, it may do so
granting a mandatory injunction to the plaintiff, compelling the defendant to perform
the requisite acts.

TEMPORARY INJUNCTION
The procedure for granting temporary injunctions is not governed by the Specific Relief Act,
1963 but governed by the rules laid down in Order XXXIX, Rules 1 and 2 of Civil Procedure
Code which reads as follows.

o GROUNDS OF TEMPORARY INJUNCTION:- Order 39 and rule 1

provides that on what grounds the plaintiff can obtain Temporary
Injunction to the Court.”

1. Property in dispute is in danger of being WASTED, DAMAGED or ALIENATED by

any party to the suit, or WRONGFULLY SOLD IN EXECUTION OF DECREE.
2. Where defendant: THREATENS or INTENDS TO REMOVE or DISPOSE OF HIS
PROPERTY with a view to defraud creditors.
3. Where defendant: THREATENS TO DISPOSSESS the plaintiff or otherwise CAUSE
INJURY to the plaintiff in RELATION TO THE PROPERTY IN DISPUTE
4. Defendant is about to COMMIT BREACH OF PEACE OR CONTRACT OR
OTHERWISE (Order 39 Rule 2).
 5. Where the court is of opinion that INTEREST OF JUSTICE, so required.
The court may by the order grant an interlocutory injunction to restrain such act or make such
order for the purpose of staying and preventing the damage of wasting, alienation, sale or
disposition of the property as the court thinks fit until the disposal of the suit.

o CONDITIONS FOR GRANTING TEMPORARY INJUNCTION

1. The plaintiff must be able to establish a prima facie case. He is not required to
establish the clear title but a substantial question that requires to be investigated
and that matter should be preserved in the same status as it is until the injunction is
finally disposed of.
2. An irreparable injury may be caused to the plaintiff if the injunction is refused and
that there is no other remedy open to the applicant by which he could protect
himself from the feared injury.
3. The balance of convenience requires that the injunction should be granted and
compensation in money would not serve an adequate relief.
It is to be noted that it is a settled principle of law that if in a suit where there is no permanent
injunction sought for in the final analysis, ordinarily a temporary injunction cannot be
granted. So, the principles that govern the grant of a perpetual injunction would govern the
grant of a temporary injunction also.
In Ishwarbhai v Bhanushali Hiralal Mohanlal Nanda case where in a suit for specific
performance, there was no prayer for a decree of perpetual injunction restraining the
defendant from transferring the suit land by way of sale till the disposal of the suit. But the
plaintiff in a suit prayed for a temporary injunction which was not granted because of the
settled principle.
Dalpat Kumar vs Prahlad Singh and Ors. the Apex Court, while considering the question
of balance of convenience observed that the court while exercising discretion in granting or
refusing injunction should exercise sound judicial discretion and should attempt to weigh
substantial mischief or injury likely to be caused to the parties , and in the case of refusal of
injunction should compare it with that which is likely to be caused to the opposite party, if the
injunction is granted.
Discretionary Relief
It is to be noted that grant of an injunction is at the discretion of the court i.e. it is not the right
of an individual to get the injunction. Section 36 expressly lays down that, “Preventive relief
is granted at the discretion of the court by an injunction, temporary or perpetual”.
QUESTION 2

WHAT DO YOU MEAN BY RECEIVER? WHEN CAN A RECEIVER BE

APPOINTED? WHAT ARE HIS POWERS, DUTIES AND RESPONSBILITIES?

WHAT DO YOU MEAN BY RECEIVER

Under order 40 of CPC, The Receiver is an independent and impartial person who is
appointed by the court to administer/manage, that is, to protect and preserve a disputed
property involved in a suit.
In civil litigation, a receiver plays an important role in assisting the court. The Receiver is
considered to be an officer of the court who helps the court to protect and preserve the subject
matter of suit till the time the court decides the matter. Sometimes, the court thinks, it is in
the best interest of both the parties to appoint a receiver who will be responsible for the
management of the subject matter. The subject matter is generally a movable or immovable
property.
The Receiver is liable to take care of the property just as a prudent man will take care of his
own personal property. He should follow the directions of the court or else his property can
be attached by the court to recover the amount which is due to him.

WHEN CAN A RECEIVER BE APPOINTED

The court can appoint receiver whenever the court is of the opinion that either party should
not hold the property in dispute. The court can appoint a receiver before or after a decree and
can remove any person from the possession or custody of the property and commit the same
property in the custody or management of the receiver.
Under the code itself, the receiver can be appointed to prevent the ends of justice being
defeated. [section 94(d)]. Similarly, for the execution of a decree, the court has the power to
appoint a receiver. [section 51(d)].
There are provisions in special acts which provides for the appointment of a receiver by the
court. For example, section 84 of the Companies Act, 2013 provides for the appointment of a
receiver.  Similarly, section 69A of the Transfer of Property Act, 1882 also provides for the
appointment.
 WHAT ARE THE POWERS OF THE RECEIVER

Under order 40 rule 1(d) powers of the receiver are provided as following:
1. Collection of rents and profits arising out of the property.
2. Application and disposal of such rents and profits.
3. Execution of documents as the owner himself.
4. To institute and defend the suit.
5. Such powers as the court may deem fit.
Also, there are indirect powers which a receiver enjoys being the hand of the court. For
example, If a person obstructs or interferes with the receiver’s right to possession, it will
amount to obstruction in a court proceeding and such a person can be made liable for
contempt of court. Similarly, property in the hands of the receiver cannot be attached without
the leave of the court.  
The court has the discretionary power to not confer all the rights on the receiver. Even if the
court has given all the powers to him, he should take the advice of the court in all important
decisions related to the property to protect himself.
Without the permission of the court, the receiver cannot:

 Grant lease on the property.

 Bring suits except for suit for rent. A suit will be dismissed if not permitted by the
court.

WHAT ARE THE DUTIES OF THE RECEIVER

Under order 40 rule (3), duties of a receiver are provided as follows:
1. Furnish security to account for what he will receive from the property as income.
2. Submit accounts (half yearly) for such period or form as directed by the court. The
account basically includes the income received and expenses incurred for the
protection and preservation of the property.
3. Pay the amount due to the court.
4. Take responsibility for any reduction in the value of the property because of the
receiver’s willful negligence.
 5. Discharge the duties personally and should not delegate or assign any of the rights
entrusted to him by the court.
The receiver has to fulfil all the duties and responsibilities entrusted to him by the court.
Otherwise, the court can take action against him and make him personally liable for any loss
which might occur due to his negligence or wilful failure to protect and preserve the property.

WHAT ARE THE LIABILITIES OF THE RECEIVER

According to Order 40 rule (4), When a receiver fails:
1. To submit the reports as specified by the court or,  
2. To pay the amount due from him as directed by the court or,
3. Causes loss to the property due to gross negligence.
4. Any other duty which court directed him to do,
The court may order the attachment of property of the receiver to recover the loss caused due
to his willful default or negligence.
The court, after recovering all the losses from the proceeds received after selling receiver’s
property, will pay the balance (if any) to the receiver.
The receiver is bound in keeping down the expenses and taking care of the property in his
possession as a prudent man would observe in connection with his own property under
similar circumstances.

“Harihar Mukherjee And Anr. vs Harnendra Nath   a dispute between A and B for an
immovable property, if the coQurt thinks that it is in the best interest of both the parties that
possession should be taken from B and given to an independent person, the court may appoint
a receiver who can manage the property till the time the suit is being decided. Such a receiver
appointed by the court would be responsible for the maintenance of the property. He can
collect the income accruing like rent or any other profits and utilize it to maintain the
property. After deducting the expenses incurred in maintenance from the income received
from the property, the receiver will have to submit the remaining income, if any, in the court.
He is not representative of either of the parties in the action, is uniformly regarded as an
officer of the court working in the interest of neither plaintiff nor defendant but for the
common benefit of all the parties.
QUESTION 3
(A)WHAT DO YOU MEAN BY EXECUTION? WHO CAN APPLY
FOR EXECUTION OF A DECREE?
(B) BY WHICH COURT DECREE MAY BE EXECUTED? WHAT
ARE THE MODES OF EXECUTION OF DECREE?

WHAT DO YOU MEAN BY EXECUTION OF DECREE

The litigation consists of three stages, initiation of litigation, adjudication of litigation, and
implementation of litigation. The last stage of litigation that is the implementation of
litigation is known as an execution. Once a decree or judgment is passed by the court, it is the
obligation of the person against whom the judgment is passed (judgment-debtor), to give
effect to the decree so as to enable the decree-holder to enjoy the benefits of the judgment.
By execution, a judgment-debtor is compelled to carry out the mandate of the decree or order.
Execution implies giving effect to an order or judgment of a court of justice. When the
decree-holder gets the thing granted to him by judgment, decree or order, the execution is
complete.
The term “execution” is not defined in the CPC. The term “execution” means implementing
or enforcing or giving effect to an order or a  judgment passed by the court of justice. In
simple words “execution” means the process of enforcing or giving effect to the decree or
judgment of the court, by compelling the judgment-debtor to carry out the mandate of the
decree or order and enable the decree-holder to recover the thing granted to him by
judgment. 
In Ghan Shyam Das v. Anant Kumar Sinha, the Supreme Court in that case, where
provisions are not capable of giving relief inadequate measures and appropriate time, to an
aggrieved party, then filing a regular suit in the civil court is the solution.
The Court further explained that the judicial quality of the remedy under Civil Procedure
Code is considered to be superior as compared to other statutes therefore, the judges are
expected to do better as they are entrusted with the administration of justice

WHO CAN APPLY FOR EXECUTION OF A DECREE

 Application for execution can be made by

  The decree holder himself.
 His legal representative if the decree holder is dead.
 Any person claiming under the decree holder.
 Transferee of Decree holder who has given notice to transferor and judgement debtor.
 Any one or more of the Decree holders where it is for benefit of all and no contrary
intention is indicated.

BY WHICH COURT DECREE MAY BE EXECUTED

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

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

1. The court of the first instance;

2. The court which actually passed the decree in case of appellate decrees;
3. The court which has jurisdiction to try the suit at the time of execution, if the court
of first instance ceased to exist;
4. The court which at the time of execution had jurisdiction to try the suit, if the
court of first instance has ceased to have jurisdiction to execute the decree.

Explanation to the section clarifies that the court of first instance shall have jurisdiction to
execute a decree even in the case of any area being transferred from the jurisdiction of the
court of first instance to the jurisdiction of any other court. In such cases, the court to the
jurisdiction of which such area has been transferred will also have jurisdiction to execute the
decree, provided that the said court had jurisdiction to try the said suit when the application
for execution was made.

MODE OF EXECUTION OF DECREE

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

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

QUESTION 4
ON WHAT GROUNDS CAN A SALE OF IMMOVABLE PROPERTY HELD
IN EXECUTION OF A DECREE BE SET ASIDE

INTRODUCTION
Mostly, the decree of sale of immovable property is awarded for enforcing mortgage deed,
charge, or for recovery of money or any other kind of encumbrances as deemed fit by the
court. The person in whose favor decree is awarded is called the ‘Decree Holder’,  (DH) and
the one incumbent to satisfy it is ‘Judgment Debtor’ (JD). Decree of sale comes into being
upon adjudication by any court exercising original jurisdiction, and the same can be applied
for execution after the prescribed period of appeal, provided it is not preferred by the JD. Per
contra, this can go on until the JD gives up or exhausts all his legal remedies

APPLICATION TO SET ASIDE THE DECREE

1. Any person claiming an interest in the property sold may apply to the court to set
it aside subject to payment in court 5% of purchase money and sum equal to that
specified in proclamation notice i.e. decreed amount. 
2. DH, purchaser or any other person having interest in the distribution of proceeds
from the sale may apply for setting aside the sale on grounds of fraud or material
irregularity in publishing or conducting the auction, provided injury sustained is
 substantial.  No such application shall be accepted if the applicant had an
opportunity to approach the court on an earlier occasion but has failed to do so. 
3. Purchaser may apply to set aside the sale on the ground that the JD has no saleable
interest in the decreed property. 
Pertaining to all of the above cases, notice is issued to the other party to show cause before
adjudication.

Rule 90 Order XXI of Code of Civil Procedure 1908 "Application to set aside
sale on ground of irregularity or fraud"

(1) Where any immovable property has been sold in execution of a decree, the decree-holder,
or the purchaser, or any other person entitled to share in a ratable distribution of assets or
whose interests are affected by the sale, may apply to the Court to set aside the sale on the
ground of a material irregularity or fraud in publishing or conducting it.

(2) No sale shall be set aside on the ground of irregularity or fraud in publishing or
conducting it unless, upon the facts proved, the Court is satisfied that the applicant has
sustained substantial injury by reason of such h irregularity or fraud.

(3) No application to set aside a sale under this rule shall be entertained upon any ground
which the applicant could have taken on or before the date on which the proclamation of sale
was drawn up.

Explanation.-The lucre absence of, or defect in, attachment of the property sold shall not, by
it be a ground for setting aside a sale under this rule.

QUESTION 5
1. WHAT DO YOU MEAN BY SECOND APPEAL? EXPLAIN THE
GROUNDS ON WHICH SECOND APPEAL MAY LIE TO THE HIGH
COURT? CAN A SECOND APPEAL LIE ON GROUNDS OF
ERRORNEOUS FINDING OF FACTS
2. STATE THE POWERS OF THE HIGH COURT TO DETERMINE THE
ISSUE OF FACTS IN SECOND APPEAL

WHAT DO YOU MEAN BY SECOND APPEAL

The second appeal has been defined under Section 100 of Code of Civil Procedure which
reads as: “100. Second appeal:
(1)Save as otherwise expressly provided in the body of this Code or by any other law for the
time being in force, an appeal shall lie to the High Court from every decree passed in appeal
by any Court subordinate to the High Court, if the High Court is satisfied that the case
involves a substantial question of law.
(2) An appeal may lie under this section from an appellate decree passed ex parte.
(3)In an appeal under this section, the memorandum of appeal shall precisely state the
substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of law is involved in any
case, it shall formulate that question.
(5) The appeal shall be heard on the question so formulated and the respondent shall, at the
hearing of the appeal, be allowed to argue that the case does not involve such question:
Provided that nothing in this subsection shall be deemed to take away or abridge the power of
the Court to hear, for reasons to be recorded, the appeal on any other substantial question of
law, not formulated by it, if it is satisfied that the case involves such question.”

The procedural right of the second appeal is conferred by this section on either of the parties
to a civil suit who has been adversely affected by the decree passed by a civil court. The
second appeal lies to the High Court only if the court is satisfied that it involves a substantial
question of law.

EXPLAIN THE GROUNDS ON WHICH SECOND APPEAL MAY

LIE TO THE HIGH COURT?
Section 101 reads as “Second appeal on no other grounds— No second appeal shall lie except
on the ground mentioned in section 100.” therefore, it specifically bars the second appeal on
any other ground mentioned in Section 100. The grounds on which a Second Appeal shall lie
are:
(i) that the appeal should involve a substantial question of law that may either be presented by
the party in a memorandum of appeal or the court may itself formulate such question;
(ii) that the second appeal may be brought forth where the decree was passed ex parte;

1. SUBSTANTIAL QUESTION OF LAW

A Second Appeal can only be entertained if it involves a substantial question of law. The
expression is not defined in the Code, however, the Supreme Court in Sir Chunilal V. Mehta
And Sons, Ltd. vs The Century Spinning And Manufacturing Co., Ltd. laid down
that “The proper test for determining whether a question of law raised in the case is
substantial would, in our opinion, be whether it is of general public importance or whether it
directly and substantially affects the rights of the parties and if so whether it is either an open
question in the sense that it is not finally settled by this Court or by the Privy Council or by
the Federal Court or is not free from difficulty or call for discussion of alternative views.”

To be a ‘substantial’ question of law, the same should be debatable, not have been previously
determined by the lower courts and should not be an applicable precedent in any form.
Whether the question of law is ‘substantial’ or not is to be decided by the High Court and that
may depend upon the facts and circumstances of each case. The proviso to Section 100(5)
gives the court the power to hear questions which were not formulated by it but they form a
part of the substantial question of law if the court is satisfied that case involves such a
question. In Mahindra & Mahindra Ltd. v. Union of India & Anr, the court observed
that “Under the proviso, the Court should be ‘satisfied’ that the case involves a substantial
question of law and not a mere question of law. The reason for permitting the substantial
question of law to be raised should be recorded by the Court.”

2. QUESTION OF FACT
The general rule is that the High Court shall only entertain matters involving a substantial
question of law but Section 103 serves a supplementary to this.
Section 103 states: “Power of High Court to determine issues of fact— In any second appeal,
the High Court may, if the evidence on the record is sufficient, determine any issue necessary
for the disposal of the appeal,—
(a) which has not been determined by the lower Appellate Court or both by the Court of the
first instance and the lower Appellate Court, or
(b) which has been wrongly determined by such Court or Courts reason of a decision on such
question of law as is referred to in section 100.”
The particular section talks of two situations when a question of fact can be dealt with by the
court in a second appeal. Firstly, when a necessary issue has not been determined by either
the Lower Court or the Court of the first instance. Secondly, when the necessary issue has
been wrongly determined by the Courts on the substantial question of law which can properly
be the subject matter of the second appeal under Section 100.
In Jadu Gopal Chakravarty v. Pannalal Bhowmick & Ors the question came up before
the court that whether the compromise decree was obtained by fraud. The court held that
though it is purely a question of fact none of the lower courts has dealt with the question
whether the decree was obtained by committing a fraud on the Court and hence, this court
can look into the question of fact by exercising its power under Section 103. Further
in Haryana State Electronics Development Corporation Ltd. & Ors. v. Seema Sharma
& Ors dealt with the question that whether the promotion is applicable only on the basis of
seniority or it should conform to merit-cum-seniority. The Supreme Court observed that such
a question was not dealt by either of the lower courts and hence, remanded the matter back to
the High Court to re-hear the second appeal and decide the aforementioned questioned. The
Court further said that “Under Section 103 of the Civil Procedure Code, the High Court in the
second appeal can decide this issue since it is necessary for the disposal of the appeal and has
not been decided by the courts below. Relevant materials on this issue are also on record.
After deciding that question the High Court will decide whether respondent(s) claim for
promotion has been wrongfully denied.”

Further, the court clarified in Ramji Bhagala v. Krishnarao Krirao Bagra that an appellate
court cannot partly admit and partly reject a second appeal under Section 100 and Section
101. It should either admit it wholly or reject it wholly.

CAN A SECOND APPEAL LIE ON GROUNDS OF ERRORNEOUS FINDING

OF FACTS
In Gopal Singh v. Ujagar Singh, the question was whether a property is ancestral or not, or
whether, when a raiyat purchased the interest of the proprietor, there is a merger of two
interests, is a mixed one of fact and law. Though ordinarily, a second appeal does not lie on
the finding of fact, when there is a legal conclusion that is necessary to be drawn from the
finding of fact, a second appeal will lie on the ground that the legal conclusion was
erroneous.  

In Durga Choudhrain v Jawahir Choudhary in this case the apex court observed that the
High Court has no jurisdiction to entertain second appeals in case of errorneous findings of
facts.

POWERS OF THE HIGH COURT TO DETERMINE THE ISSUE

OF FACTS IN SECOND APPEAL
This is defined under Section 103:
The High Court can decide the issue of facts if sufficient evidence is found and the court
thinks it is necessary for the disposal of an appeal –

 If it has not been decided by lower Appellate Court or both by the Court at the
first instance and to the lower Appellate Court or if it has been wrongly decided
by Court and there involves a substantial question of the law which is defined
under section 100 of CPC.

Section 103 of Code of Civil Procedure 1908 "Power of High Court to determine issues
of fact"

In any second appeal, the High Court may, if the evidence on the record is sufficient,
determine any issue necessary for the disposal of the appeal,-

(a) which has not been determined by the lower Appellate Court or both by the Court of first
instance and the lower Appellate Court, or

(b) which has been wrongly determined by such Court or Courts reason of a decision on such
question of law as is referred to in section 100.

QUESTION 6
o WHAT PROPERTIES MAY NOT BE ATTACHED?

INTRODUCTION
Some kind of property which cannot be attached and sold in execution of a decree is
expressly mentioned in Section 60 of the Code of Civil Procedure. Particulars like wearing
apparel, cooking vessels, beds, tools of artisans, books of accounts, any right of personal
service, wife and children, stipends and gratuities allowed to pensioners of the
Government etc. and many more.

Section 60(1) of the Civil Procedure Code, declares that all saleable properties are liable to
attachment and sale in execution of the decree.  It also provides that the property specified
therein are exempted from attachment and sale in the execution of a decree.

According to the general rule, all property movable and immovable properties which include
agricultural land, buildings, and shares, furniture's fixtures or movable property including
money, articles etc. Owned by judgment-debtor and judgment-debtor entitled to hold and
process to the exclusion of others.

PROPERTIES WHICH CANT BE ATTACHED

          According to Section 60(1) of the Civil Procedure Code following 20 kinds of property
are not liable to attachment or sale namely - 
(a) the necessary wearing-apparel, cooking vessels, beds and bedding of the judgment-
debtor, his wife and children, and such personal ornaments as, in accordance with religious
usage, cannot be parted with by any woman;
(b) tools of artisans, and, where the judgment debtor is an agriculturist, his implements of
husbandry and such cattle and seed-grain as may, in the opinion of the Court, be necessary to
enable him to earn his livelihood as such, and such portion of agricultural produce or of any
class of agricultural produce as may have been declared to be free from liability under the
provisions of the next following section;
(c) houses and other buildings (with the materials and the sites thereof and the land
immediately appurtenant thereto and necessary for their enjoyment) belonging to an
agriculturist or a labourer or a domestic servant and occupied by him;
(d) books of account;

(e) a mere right to sue for damages;

(f) any right of personal service;

(g) stipends and gratuities allowed to pensioners of the Government or of a local authority or
of any other employer, or payable out of any service family pension fund notified in the
Official Gazette by the Central Government or the State Government in this behalf, and
political pension;

(h) the wages of laborers and domestic servants, whether payable in money or in kind

(i) salary to the extent of the first one thousand rupees and two-thirds of the remainder in
execution of any decree other than a decree for maintenance:
Provided that where any part of such portion of the salary as is liable to attachment has been
under attachment, whether continuously or intermittently, for a total period of twenty four
months, such portion shall be exempt from attachment until the expiry of a further period of
twelve months, and, where such attachment has been made in execution of one and the same
decree, shall, after the attachment has continued for a total period of twenty four months, be
finally exempt from attachment in execution of that decree;

(ia) one-third of the salary in execution of any decree for maintenance;

(j) the pay and allowances of persons to whom the Air Force Act, 1950 (45 of 1950), or the
Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957), applies;

(k) all compulsory deposits and other sums in or derived from any fund to which the
Provident Funds Act, 16[1925 (19 of 1925), for the time being applies in so far as they are
declared by the said Act not to be liable to attachment;

(ka) all deposits and other sums in or derived from any fund to which the Public Provident
Fund Act, 1968 (23 of 1968), for the time being applies, in so far as they are declared by the
said Act as not to be liable to attachment;

(kb) all moneys payable under a policy of insurance on the life of the judgment debtor;

(kc) the interest of lessee of a residential building to which the provisions of law for the time
being in force relating to control of rents and accommodation apply;

(l) any allowance forming part of the emoluments of any servant of the Government or of any
servant of a railway company or local authority which the appropriate Government may by
notification in the Official Gazette declare to be exempt from attachment, and any subsistence
grant for allowance made to any such servant while under suspension;

(m) an expectancy of succession by survivorship or other merely contingent or possible right

or interest;

(n) a right to future maintenance;

(o) any allowance declared by any Indian law to be exempt from liability to attachment or
sale in execution of a decree; and

(p) where the judgment-debtor is a person liable for the payment of land-revenue; any
movable property which, under any law for the time being applicable to him, is exempt from
sale for the recovery of an arrear of such revenue.
QUESTION 7
o WHAT DO YOU MEAN BY REPRESENTATIVE OF SUIT? WHAT IS OBJECT?
WHAT CONDITIONS MUST BE SATISFIED FOR FILING A REPRESENTATIV
SUIT

WHAT DO YOU MEAN BY REPRESENTATIVE OF SUIT

Order I Rule 8 of the Code of Civil Procedure 1908 deals with representative suit. A
representative suit is a suit that is filed by one or more persons on behalf of themselves and
others having same interest in the suit. The general rule is that all persons interested in a suit
ought to be joined as parties to it. Rule 8 forms an exception to this general rule. The rule
enacted is for convenience based on reason and good policy as it saves from expense and
trouble which would otherwise have to be incurred in such cases.
Definition: A representative suit is a suit filed by or against one or more persons on behalf of
themselves and others having the same interest in the suit.

Order I Rule 8 reads as

Rule 8 - One Person May Sue Or Defend On Behalf Of All In Same Interest

1. Where there are numerous persons having the same interest in one suit,-
(a) one or more of such persons may, with the permission of the Court, sue or be sued,
or may defend such suit, on behalf of, or for the benefit of, all persons so interested;
(b) the Court may direct that one or more of such persons may sue or be sued, or may
defend such suit, on behalf of, or for the benefit of, all persons so interested.
2. The Court shall, in every case where a permission or direction is given under sub-rule
(1), at the plaintiff's expense, give notice of the institution of the suit to all persons so
interested either by personal service, or, where, by reason of the number of persons or
any other cause, such service is not reasonably practicable, by public advertisement,
as the Court in each case may direct.
3. Any person on whose behalf, or for whose benefit, a suit is instituted or defended,
under sub-rule (1), may apply to the Court to be made a party to such suit.
4. No part of the claim in any such suit shall be abandoned under sub-rule (1), and no
such suit shall be withdrawn under sub-rule (3), of rule 1 of Order XXIII, and no
agreement, compromise or satisfaction shall be recorded in any such suit under rule 3
of that Order, unless the Court has given, at the plaintiff's expense, notice to all
persons so interested in the manner specified in sub-rule (2).
5. Where any person suing or defending in any such suit does not proceed with due
diligence in the suit or defence, the Court may substitute in his place any other person
having the same interest in the suit.
 6. A decree passed in a suit under this rule shall be binding on all persons on whose
behalf, or for whose benefit, the suit is instituted, or defended, as the case may be.
Explanation
For the purpose of determining whether the persons who sue or are sued, or defend,
have the same interest in one suit, it is not necessary to establish that such persons
have the same cause of action as the person on whom behalf, or for whose benefit,
they sue or are sued, or defend the suit, as the case may be.

WHAT IS OBJECT?

The object of the rule is to afford convenience in suits where there is community interest
among large number of persons so that a few should be allowed to represent. In other words,
the object for which this provision is made is really to facilitate the decision of question in
which a large body of persons are interested without recourse to ordinary procedure
otherwise there will be inseparable practical difficulty in the institution of suits, where each
individual has no maintain an action by a separate suit. (Kodia Gounder v. Velandi Gounder

CONDITIONS FOR A REPRESENTATIVE SUIT

There are basically four essential conditions for a party to institute a representative suit which
can be derived from the provision of Rule 8, they are:

1. The parties are numerous

2. Same interest or Community of interest
3. Necessary permission of the Court has been obtained
4. Notice to all the persons interested in the suit

1. The Parties are Numerous:

The word numerous is by no means a term of art. It implied a group of persons such as would
make it convenient to implead all of them individually. The word is not synonymous with
‘numberless' or ‘innumerable'. The number must be definite for the Court to recognize
as non-impleaded parties to the suit. Thus under this provision the body of persons
represented must be sufficiently definite.

Masjid Shahid Ganj v. SGP Committee AIR 1938

The Court has said that a representative suit on behalf of inhabitants of a village with
reference to the village property or on behalf of the members of sect, caste or community is
maintainable under this rule. It is also noted that the Rule does n olt debar any member of a
community from maintaining a suit in his own right inspite of the fact that the act complained
of injuries to other members of the community as well.

2. Same Interest:
For the representative suit it is essential that the parties have the same interest in the suit. The
interest must be common to them all or they must have a common grievance of which they
seek the redress. ‘Community of Interest' is sine qua non to maintain a representative suit.
If for example- A sues 100 persons who have in pursuance of a conspiracy trespassed on his
land or have wrongfully confined him, and A asks for declaratory relief, the court should
have the power to permit him to sue, say, 3 of the opponents as representatives of all the
hundred, provided there is community of interest among them, which can be said to exist
where there is concerted action or a common object though the cause of action against each
trespasser is separate. The interest need not be proprietary neither joint nor concurrent.

The expression â€˜Same Interest was well explained by Lord Machaghten in Bed Ford

(Duke of) v. Ellis in 1901 as given a common interest and common grievance, a
representative suit was in order if the relief sought was in its nature beneficial to all whom the
plaintiff proposed to represent.

The question of same cause of action arises from the objects and reasons of Rule 8. The
amendment to the rule in 1976 has added an Explanation to clarify that such persons need not
have the same cause of action. Same interest therefore does not mean same cause of action
under this rule.

3. Permission of Court:

Court must have granted permission or the direction must have been given by the Court. This
is required in order to bind the persons other than those who are actually parties to it. If no
permission is taken the suit will not be a representative one. Permission under Order 1, Rule
8, CPC may be granted even after the institution of the suit and even at the appellate stage by
allowing an amendment, if such amendment does not materially change the nature of the suit.

4. Notice:

This is the last condition that notice will have to be given to all concerned parties. Where
permission is granted to file a suit in representative capacity then it is mandatory to give
notice of the institution of suit to all the persons interested. Notice maybe given directly
through personal service or by advertisement as directed by the Court.

Courts must see that if they direct that the notice should be by public advertisement, it must
disclose the nature of the suit as well as the reliefs claimed therein in order to enable the
persons interested to get themselves impleaded as parties to the suit either to support the case
or to defend against it. Further the notice must mention the names of the persons who have
been permitted to represent them so that the persons interested may have an opportunity of
knowing who have been selected to represent them.